Wednesday, June 9, 2021
Professor Meera Deo of Southwestern Law School has published Why BIPOC Fails in the Virginia Law Review Online. The abstract is given below, and the full article is available right here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3858825
This Essay initiates a discussion about how we should critically examine which issues and data are most relevant to our arguments and advocacy efforts and how we should match language to the particular groups at the center of those priorities. This will mean aggregating groups at times, and naming them separately at others. This Essay argues that whether finding community through unity or standing separately to highlight distinctions, either of these options is better than utilizing the term BIPOC. Particular examples showcase the failures of the term BIPOC, both in theory and in practice, including ways in which it can be misleading, confusing, and contribute to the invisibility of the very groups that should be centered in particular contexts. Instead, allies, advocates, and academics should not simply use whatever term is currently in vogue but instead critically examine the language we use and carefully match it to our data, priorities, and conclusions.
Monday, June 7, 2021
New Article: "Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments" -- by Prof. Sonia Gipson Rankin
Professor Sonia Gipson Rankin of the University of New Mexico School of Law has published Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments in the Washington and Lee Law Review. Below is the abstract, and the full article is available right here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3662761
Issues of racial inequality and violence are front and center in today’s society, as are issues surrounding artificial intelligence (AI). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.
Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about Black crime and criminals are embedded in the data collected by AI and do not tell the truth of race and crime. However, the number of Black people harmed by hacked and rogue AI will dwarf all historical records, and the gravity of harm is incomprehensible.
The lack of technical transparency and legal accountability leaves wrongfully convicted defendants without legal remedies if they are unlawfully detained based on a cyberattack, faulty or hacked data, or rogue AI. Scholars and engineers acknowledge that the artificial intelligence that is giving recommendations to law enforcement, prosecutors, judges, and parole boards lacks the common sense of an 18-month-old child. This Article reviews the ways AI is used in the legal system and the courts’ response to this use. It outlines the design schemes of proprietary risk assessment instruments used in the criminal justice system, outlines potential legal theories for victims, and provides recommendations for legal and technical remedies to victims of hacked data in criminal justice risk assessment instruments. It concludes that, with proper oversight, AI can increase fairness in the criminal justice system, but without this oversight, AI-based products will further exacerbate the extinguishment of liberty interests enshrined in the Constitution.
According to anti-lynching advocate Ida B. Wells-Barnett, “The way to right wrongs is to turn the light of truth upon them.” Thus, transparency is vital to safeguarding equity through AI design and must be the first step. The Article seeks ways to provide that transparency, for the benefit of all America, but particularly persons of color who are far more likely to be impacted by AI deficiencies. It also suggests legal reforms that will help plaintiffs recover when AI goes rogue.
Monday, May 24, 2021
Not since the 1960s has the United States been as racially charged as it is today. The rise of the Black Lives Matter (BLM) movement is forcing Americans to confront centuries of systemic state abuse of African Americans. As a result, younger Americans no longer believe the myth that their society is colour-blind.
Like the Civil Rights Movement of five decades ago, BLM has brought to light the common causes of systemic oppression against Black people as well as Latinx, Native Americans, and Muslims. This moment of racial reckoning also encompasses a people consistently demonised in American media, politics, and textbooks: Palestinians.
Youth and progressives, who now are exposed to the voices and experiences of Palestinians through social media, no longer uncritically accept politicians’ unconditional support of Israel. They realise the Israel-Palestine “conflict” is not just complicated, it is asymmetric and racist. Progressives see the parallels between their own critique of America’s settler-colonial past and Israel’s abuse of Palestinians.
Through citizen journalism by Palestinians on the ground, Americans are forced to reckon with the reality that US military aid to Israel contributes to a systematic dehumanisation of Palestinians, just as militarisation and impunity contribute to the oppression of Black people in the US.
Thus, the current response to Israel’s forced removal of Palestinians from their homes in occupied East Jerusalem and bombings of civilians in Gaza brings into sharp relief the gradual shift in American public opinion.
Opinion polls conducted between 2001 to 2011 consistently showed strong public support for Israel: Gallup found that more than 50 percent of Americans had sympathies towards Israel while less than 20 percent did so towards Palestinians. When disaggregated by political party, sympathy for Israel increased to nearly 80 percent among Republicans as compared with nearly 60 percent among Democrats; just 7 percent of Republicans and 24 percent of Democrats expressed sympathy for Palestinians.
But starting in January 2018, according to a Pew Research Center poll, sympathy for Palestinians and Israelis among Democrats began to equalise at approximately 25 percent. Meanwhile, Republican voters’ sympathy for Israel remained high, at 79 percent. These numbers signalled a growing gap along partisan lines in Americans’ views on Palestinian human rights.
The timing is not coincidental. In 2018, Trump had been president for a year, during which Americans witnessed the troubling mainstreaming of far-right views. By then, more and more murders of unarmed Black men by police officers had been caught on video, debunking the age-old racist stereotypes that Black men are dangerous, violent, and aggressors.
Meanwhile, Trump’s Muslim Ban, separation of Central American refugee families at the border, and unashamedly xenophobic rhetoric breathed life into a progressive, anti-racist movement that was no longer willing to accept mainstream Democrats’ colourblind view of domestic politics.
This led to the “Blue Wave” of progressive candidates elected to Congress in the 2018 mid-term elections. These new members of the US legislature have a clear mandate from their diverse constituents: Be the voice of the oppressed and dismantle racist systems rather than merely reform around the edges.
There is also increasing pressure from their constituencies to not let Israel off the hook for its crimes against Palestinians. In a March poll, some 34 percent of all respondents and 53 percent of respondents who identified as Democrats expressed a desire to have the US government pressure Israel into making compromises on Palestine – up from 25 and 30 percent, respectively, in 2018.
These growing attitudes within the American electorate have prompted progressive members of Congress to vocally criticise unconditional US support of Israel amid the latest escalation of violence and condemn the Israeli army’s killing of civilians and disproportionate use of force in Gaza.
On May 13, House Representative Alexandria Ocasio-Cortez criticised President Joe Biden in her speech in Congress, bluntly stating “The president and many other figures this week stated that Israel has a right to self-defence. And this is a sentiment that is echoed across this body. But do Palestinians have a right to survive? Do we believe that? And if so, we have a responsibility to that, as well.”
House Representative Rashida Tlaib, the first Palestinian American elected to Congress, decried the US government’s blatant disregard for Palestinian life. She asked colleagues in Congress, “How many Palestinians have to die for their lives to matter,” and declared that, “The freedom of Palestinians is connected to the fight against oppression all over the world.”
Tlaib articulated the sentiment held by a growing number of young, progressive Americans of all races and religions when she stated, “We must with no hesitation demand that our country recognise the unconditional support of Israel has enabled the erasure of Palestinian life.”
Concurrent to public statements, 21 members of Congress are co-sponsoring the bill “Defending the Human Rights of Palestinian Children and Families Living Under Israeli Military Occupation”. The bill would impose more oversight and end-use restrictions on how Israel can use US aid. One of the bill’s leading co-sponsors, Betty McCollum succinctly stated the objective behind the bill, “Not one dollar more of US military aid can be used to demolish Palestinian homes, annex Palestinian lands, and torture or kill Palestinian children.”
Such rhetoric by US elected officials was unheard of just five years ago. Indeed, defending Palestinian rights was often fallaciously equated with anti-Semitism. Although this pressure still exists, changing attitudes on race and race relations have had a profound impact on attitudes towards Palestine.
A 21st-century anti-racism movement is schooling Americans on how the powerful manipulate media, politics, and economics to oppress entire groups of people, while blaming those same people for their hardships. As these lessons are increasingly applied to Palestine, the question is when, not whether, US foreign policy will finally come to value Palestinian life.
-- This commentary was originally published on Al Jazeera here.
Monday, May 3, 2021
Black Prosecutors Inspired Trust and Hope at the Derek Chauvin Trial--We Need More of Them (by Prof. Njeri Mathis Rutledge)
Kamala Harris took heat for being a prosecutor, but lawyers of color should not avoid this noble calling. Prosecutors are powerful and should be diverse.
I had no idea I was holding my breath until I let out a deep exhale when I heard the jury had found Derek Chauvin guilty on all counts in killing George Floyd. It was a great day to breathe deeply for Floyd, Eric Garner, Tamir Rice, Aiyana Stanley-Jones, Philando Castile and countless other men, women and children of color who were killed by police but did not receive justice.
Before we move on from the historic Chauvin verdict, I want to highlight an aspect of criminal justice reform that does not get sufficient attention: diversity within the criminal justice system. Reforming this system requires a diversity of voices in positions of power. And I am convinced that there is no greater position of power within the system than that of the prosecutor.
A long way from the OJ Simpson trial
The importance of Black prosecutors is frequently ignored. There was tremendous significance in seeing Minnesota Attorney General Keith Ellison and Jerry Blackwell — two Black attorneys — prosecuting the case against Chauvin. Ellison, the state's first Black attorney general, earned the trust of the Black community. Blackwell took a lead role in examining witnesses and gave the rebuttal closing argument. As a former prosecutor myself, watching Blackwell have the last word in a case about the killing of an unarmed Black man was therapeutic and a moment of great pride.
We have come a long way from former prosecutor Christopher Darden and the O.J. Simpson trial that occurred while I was in law school. Darden was frequently vilified for being both a Black man and a prosecutor, as if those identities were mutually exclusive.
Before I started law school, I vividly recall telling a date that I was going to law school to become a prosecutor. I found his response disturbing: So you want to put Black men in jail? he asked.
I ultimately fulfilled my career goal of becoming a prosecutor, and I was proud to do so. Not because I "put Black men in jail," but because I believe my devotion to duty made a positive contribution to our endless struggle to align the aspiration of equal justice under law with reality. Why then wouldn’t we want prosecutors with an experience-based appreciation of the flaws in that system?
In retrospect, I should not have been surprised. Vice President Kamala Harris was harshly criticized by some for decisions she made as a prosecutor and as California attorney general. Black prosecutors are routinely accused of being a tool in a biased system by some and of being too lenient about criminal justice reforms by others. The reality is that there are few actors in the criminal justice system who have more influence on both respect for law and reform of the process than prosecutors.
Bringing commitment and empathy
Aspiring lawyers interested in civil rights and justice should consider serving as prosecutors. Prosecutor’s offices need to reflect the diversity of their communities. So far, that is not the case. For instance, only 1.8% of lead prosecutors are women of color. And when there is diversity, sadly, it is not appreciated by everyone. Black female prosecutors, like Baltimore State’s Attorney Marilyn Mosby, have been the target of racist threats and hate mail.
Black prosecutors bring a unique perspective to their duties, a perspective that ideally helps bridge the chasms between the law enforcement community and the public. Black prosecutors lend credibility to a system where Black Americans are frequently accused of crime. This is because justice is more complex than simply applying a criminal code. It requires an understanding and, yes, an empathy for those caught up in the system. But most important, it requires a commitment to do justice.
It was that call to do justice that inspired me to serve in an overworked, underpaid yet personally fulfilling job. I lament that so many of my law students, Black and white, fail to see the nobility of this calling. I am grateful that Ellison and Blackwell have made a difference as prosecutors. May they inspire a new generation to serve as well.
This article was originally published at USA Today on 4/28/21. You can read it here.
Wednesday, April 28, 2021
The Entire Country Needed a Guilty Verdict in Chauvin Case--But Laws Still Need to Change (by Prof. Njeri Mathis Rutledge)
Convicting a police officer is rare.
Juries are hesitant to second-guess split-second decisions. The killing of George Floyd was unique. This case did not involve a split-second judgment call on whether to shoot. Instead, video evidence showed that rather than a split-second decision, Derek Chauvin made a 9-minute-and-29-second decision while Floyd and traumatized bystanders pleaded with Chauvin to stop.
Moreover, the decision for the police chief and other officers to cross the blue line and speak out against Chauvin’s behavior was nothing short of historic.
Chauvin’s callous action of placing his weight on Floyd’s neck traumatized a nation. It was so horrific to watch and so blatant that it turned people from around the world into allies.
Even police officers were seen taking a knee and joining protesters. It was truly a watershed moment where a large part of the community said "enough." Sadly, the country has a long history of injustices being committed by the police against people of color without accountability in court.
The country needed a guilty verdict. So did the family, the communities of color and law enforcement.
The guilty verdict validated Floyd as a human being who deserved to be treated with dignity regardless of his past flaws or mistakes. For others, the verdict is overshadowed by the most recent victims of police violence, 13-year-old Adam Toledo and 20-year-old Daunte Wright. Despite protests and calls for reform, the body count of unarmed children and adults killed by police continue to grow.
For practical purposes, a guilty verdict means accountability. The jury had the opportunity to consider three charges: second-degree murder, third-degree murder and second-degree manslaughter. The jury could have returned a verdict of guilty on any or all of the three charges. The jury chose to convict the defendant on all charges.
To convict the defendant of any charge, the jury had to determine whether Chauvin’s actions were justified by the use of reasonable force. The reasonable officer standard usually favors the accused police officer, but this case was different. In this case, several police officers took the stand to support the point that Chauvin’s actions were not reasonable and not in line with police policy.
The jury had to also conclude that Chauvin’s actions were a substantial causal factor in Floyd’s death. The law did not require that Floyd had to be in perfect health.
For practical purposes, the fact that Chauvin was convicted in Minnesota will have no binding impact on the laws in other states. In fact, the uniqueness of Chauvin’s case combined with the rarity of a conviction might only reinforce the belief that the police may act with impunity unless there are multiple surveillance videos and police officers willing to testify against the defendant.
Unless the law changes, the public should not expect an increase in convictions involving police misconduct. Most state laws allow the police to use deadly force if a suspect poses a serious threat to others or the officer. In the rare instance that charges are filed and there is a trial, the issue tends to focus on whether the officer’s fear of harm was reasonable.
Many legal experts expected Chauvin to be found guilty of something. The disturbing fact is 98.3% of police killings failed to trigger criminal charges. One case in point was the killing of 12-year-old Tamir Rice in Cleveland. Although the city settled the civil lawsuit, the officer who killed Rice was never held accountable in a courtroom.
When charges are brought, officers are rarely convicted. According to the Police Integrity Research Group, only four out of the more than 100 nonfederal officers charged in a person’s death were convicted of murder; 18 were convicted of manslaughter or reckless or negligent homicide.
True change cannot come from jury verdicts but through legislation. Recently, President Joe Biden has signaled his support of the George Floyd Justice in Policing Act, which would include banning certain police practices like chokeholds and federal no-knock warrants and reform qualified immunity laws.
The story of Floyd cannot merely end with a jury verdict. If we are to make the statement by Floyd’s daughter, 6-year-old Gianna, true that her “daddy changed the world,” we must change policing by changing the law.
This article was originally published at USA Today on 4/20/21. You can read it here.
Tuesday, April 27, 2021
Review of Garrett Felber, Those Who Know Don’t Say: The Nation of Islam, the Black Freedom Movement, and the Carceral State (2020).
Garrett Felber’s book, Those Who Know Don’t Say, offers a fresh and fearless new intellectual and activist history of the Nation of Islam (NOI), which situates a critique of the carceral state as central to the Black Freedom movement. Felber is a historian, who has become a recent cause celebre among academics for his firing by the University of Mississippi as retaliation for calling out the school’s allegiances to racist donors over public service. His firing has been a buckshot warning that academic freedom and free speech are not as free as we might think. In response, over 5,000 scholars and professors signed on to an “open letter” to his school demanding he be reinstated.
While Felber might be viewed as terminable by his home institution, his research is anything but, and instead, opens up academic study in new and exciting directions. Grounded in excavations of archival sources, court documents, and religious records, he offers meticulous, high-caliber scholarship that revises a portion of civil rights history and the NOI’s place in that history. The author shows that Muslims in America have been subject to surveillance and Islamophobia for decades. This, in turn, has helped fuel the Muslim community’s decisively antagonistic view of the prison system.
The book is styled as a vehicle through which to explore forgotten sites and forms of Black struggle confronting the carceral state. Its central claim is that challenges to policing and prisons were central to the postwar Black Freedom movement—and that the NOI was the at the forefront of these struggles. The carceral state, in turn, expanded through what the author calls a “dialect of discipline,” a phrase that intends to describe the relationship between disciplined Black dissidence and state penal discipline. To combat Black protest, the state responded with new, carceral modes of surveillance, punishment, and ideological knowledge production.
Accordingly, these developments laid the groundwork for the modern carceral state and the movements that oppose it. The dialectics played out in multiple arenas of Black protest, including prisons, courtrooms, and in the street. These collective efforts elicited harsh responses by police, prison guards, and other agents of the state. The tension between resistance and surveillance thus came to define the relationship between Black resistance, often led by NOI leadership, and state authorities.
Felber details how the NOI often had to struggle along two different lines. In addition to confronting police and prisons, the NOI also contended with Black leaders who saw the group as violent and pro-segregation. As such, the NOI often had to defend its civil rights struggles not simply against the carceral state, but also against other Black leaders who saw the NOI’s agenda as an obstacle to their own, especially their efforts to end segregation. Malcolm X was once called the most dangerous man in America, but he was not feared by whites alone.
What emerges from these struggles is the NOI as the most active and vociferous antagonist of the carceral state. Indeed, the litigation efforts alone reveal an organization dedicated to appropriating courts to challenge state oppression. In many ways, litigation by Muslims in prison advanced the status of prisoners in a way that paralleled civil rights struggles on the outside. This legacy of incarcerated Muslims taking their protest to court has impacted prison law and policy so profoundly that any discussion of prisoners’ rights in America would be incomplete without recognizing the contributions made by NOI followers.
One individual highlighted in the text is Martin Sostre, a convert to the NOI, who embodies practically all aspects of the dialectics of discipline thesis. Sostre became active in prison and worked to advance the rights of Muslims and other prisoners. His efforts earned him extra punishment in solitary confinement, but his mistreatment only fueled his determination. He would study law in prison and go on to become one of the fiercest jailhouse lawyers the country has ever known, garnering federal court victories, including rulings that curbed the use of solitary confinement and allowed Muslims greater religious freedoms. He also drafted legal templates that were used by others in prison for their own lawsuits. When released from prison, Sostre opened a revolution-themed bookstore that extended his resistance into the streets. Reinforcing the dialectic, the police would later raid the bookstore and Sostre would ultimately be returned to prison.
As such profiles suggest, there is a long-lost history that this book brings to life. It is must-read material for students of African-American history, criminal justice, Islam in America, and scholars of social movements that tells a sordid story that links to current protests led by the Black Lives Matter movement. Through its pages we learn that the carceral state did not expand without cause, but instead, the expansion was part of the reactionary measures to control Black protest. In outlining Black resistance in America and the growth of the American penal system, Felber has uncovered a definitive political and intellectual history of the NOI and its relationship to the broader civil rights movement.
This article was originally published on 4/26/21 at JOTWELL Criminal Law. Read it here.
Monday, April 26, 2021
Belonging. To Be. To Long for. To long to belong in a space where one feels safe, wanted, normal.
Is to belong to be normal? Who is normal? Who decides? Who sets the norm? for you, for me, for us.
But for us to exist, there must be a them.
So does belonging axiomatically require exclusion, boundaries, insiders, outsiders,
us versus them?
Belonging. A word in every culture’s lexicon; a word whose definition is rarely questioned. You know it when you feel it. When you feel dignity, equality, respect – you belong.
The affective component of belonging, however, can blind you to the material consequences of (not) belonging though the two cannot be disconnected.
So what do we mean to belong? More importantly, what do we want it to mean?
In law, we look beyond the affective. The most reductivist definition: citizenship.
Your passport officially declares that you belong to this nation, this geography, this culture, this people. The piece of paper is frail and meaningless.
unless you and I are not just citizens of the same state, but also equal citizens.
So long as we are equal, we both belong, right?
Equal but Separate schools,
Equal but Separate neighborhoods,
Equal but Separate experiences in the same nation.
With the same passport, The same citizenship.
So we both belong. wrong.
But we all have the same rights under the law, don’t we? The U.S. Constitution applies to all of us. The law protects all of our civil rights. Isn’t that enough to belong, for everyone in the same geographical space defined by artificial borders be a collective “us.”
NO – a resounding no –
cries George Floyd when he begs for his life as the White police officer murders him under his knee.
NO – a resounding no-
cries Eric Garner when he begs for his life as the White police officer chokes him to death.
NO – a resounding no –
proclaim the Muslims who cannot see their spouses, mother, father, and children banned from setting foot on U.S. soil,
banned from soiling our soil with their very presence
NO – a resounding no – say the Black and Brown children in public schools under-resourced as compared to white children across the country.
But, maybe just maybe, if you behave yourself the way “we” want “you” to, just maybe we will grant you the permission to belong,
The first rule: English only.
We are a reasonable people, for we make exceptions to our rules. In this case, only upper middle-class people of European origin may speak other languages – for that makes them competitive in the neoliberal, global capitalist economy in the 21st century.
But no Spanish for Mexican Americans.
No Arabic for Arab Americans.
No Urdu for Pakistani Americans.
No Hindi for Indian Americans.
English only, or else you have betrayed this nation. You have decided you do not want to belong, so you can’t blame us for making you part of “them.” And while we are on the topic of blame, how dare you come to our country – the land of the free, the home of the brave – and criticize it.
Our criticism is constitutionally protected dissent, patriotic.
Your criticism is treason, disloyal. Your decision that you do not want to belong.
We let you in, and this is how you thank us – by speaking these foreign languages we cannot understand, eating these foreign foods that we cannot digest, wearing these foreign clothes and using foreign names we cannot pronounce.
This is how you thank us? By threatening our identity, our hegemonic culture, as we define it.
If you want to belong, you cannot be different. From us. We can be different among ourselves, because there is no question that we belong. But you must constantly persuade, convince, prove that you belong.
Everyday, with every word, every action.
Assimilate, emulate, copy, be the same
We don’t care where you came from, for we are proudly a nation of immigrants, but we most certainly care how you behave, look, talk, eat, and live now that you are here. Now that you want to belong here, with us, you must accept us as superior, smarter, more beautiful, more civilized.
America is the land of Belonging. To Be. To Long for opportunity, the pursuit of happiness.
But can you belong without dignity? Without respect? Can you belong when legal rights apply only to some in practice? Can you belong when your very skin color reminds the powerful of your difference?
Belonging is identity.
-- by Sahar Aziz, Professor of Law and Author of The Racial Muslim: When Racism Quashes Religious Freedom
Tuesday, April 20, 2021
At a recent book talk hosted by the Rutgers Center for Security, Race and Rights, Marc Lamont Hill and Mitchell Plitnick discussed a question percolating among American progressive political circles: why are so many progressives not applying their commitments to counter racism, settler-colonialism, and human rights violations to Palestinians? What explains what is commonly known as PEP - Progressive Except for Palestine? Hill and Plitnick's book Except for Palestine: The Limits of Progressive Politics wrestles with these questions.
Watch their book talk here and below.
Monday, April 12, 2021
Below is a message from Professor Tristin Green about submitting proposals for the Third Annual Equality Law Scholars' Forum. I participated in this event back in 2017, and I would strongly encourage any young scholars working in the relevant areas to submit a proposal. It is a great opportunity on many levels.
Last year, we had to cancel our two-day, in-person Spring 2020 Equality Law Scholars’ Forum scheduled at the University of San Francisco Law School (we held a small feedback session virtually for several junior scholars in Fall 2020), but we’re back in full for Fall 2021! Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law in 2017 and at UC Davis Law in 2018, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Third Annual Equality Law Scholars’ Forum to be held in Fall 2021. We are planning for the even to be held in person at the Boston University School of Law.
This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas. We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.
We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Forum will take place all day Friday through lunch on Saturday. Participants are expected to attend the full Forum. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.
This year’s Forum will be held on November 12-13, 2021 at the Boston University School of Law
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 1, 2021.
Full drafts of papers must be available for circulation to participants by October 29, 2021.
Proposals should be submitted to:
Tristin Green, University of San Francisco Law School, email@example.com. Electronic submissions via email are preferred.
Wednesday, April 7, 2021
RELIGION, RACE AND IMMIGRATION. WHAT ABOUT THE IMMIGRATION AND NATIONALITY ACT? By Christopher Ogolla
The recent surge of migrants in the southern border has thrust the issue of immigration to the forefront of public discourse. It is so much so that House Republican leader Kevin McCarthy and Republican members of Congress visited the border in March 2021 to highlight the crisis. During the Trump Administration, it used to be the Democrats who visited the border to highlight the migrant crisis. To quote Yogi Berra, “its déjà vu all over again.” But I digress.
On February 18, 2016, Pope Francis, while on a trip from Mexico to Rome, was asked by reporters about the then-presidential candidate Donald Trump’s plan to build a wall along the U.S. Mexican border, if elected. The Pope responded, “A person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian. This is not the gospel."
On January 27, 2017, President Trump signed an Executive Order banning foreign nationals from seven predominantly Muslim countries from visiting the U.S. for 90 days. Additionally, the Order suspended entry to all Syrian refugees indefinitely and prohibited any other refugees from coming into the country for 120 days. This Order became popularly known as the Muslim ban. In an amicus brief supporting a lawsuit filed by Washington State Attorney General Bob Ferguson seeking to have key provisions of the Executive Order declared unconstitutional, the American Civil Liberties Union (W.A.) argued that the Order gave preference to the processing of Christian refugees over Muslim refugees. The Supreme Court later upheld the Order in Trump v. Hawaii.
In April 2018, the then-Attorney General Jefferson Sessions announced a zero-tolerance policy “for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien.” This policy was in response to an increase in the number of immigrants crossing the southwest border. The hallmark of this policy was the family separation practice that caused public outrage and opposition from some members of Congress. On June 14, 2018, in a speech to law enforcement officers in Fort Wayne, Indiana, Sessions defended the zero-tolerance policy by citing the Bible to justify immigrant family separations. He said, "I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order". In a nutshell, Sessions was saying that “the practice of separating families is consistent with the teachings of the Bible because persons who violate the law of our nation are subject to prosecution.”
Responding to Sessions’ use of the Bible to justify family separation, New York Cardinal Timothy Dolan said, “I appreciate the fact that Attorney General Sessions refers to the Bible. The quote that he used from St. Paul might not be the best. For one, St. Paul always says that we should obey the law of the government if that law is in conformity with the Lord's law. No pun intended, but God's law trumps man's law. I don't think we should obey a law that goes against what God intends that you would take a baby, a child, from his or her mom. I mean, that's just unjust. That's un-biblical. That’s un-American. There could be no biblical passage that would justify that."
These examples show that religion and immigration are inextricably intertwined. But that is of little novelty. What is more telling is that the Immigration and Nationality Act (“The Act”) does not speak much on religion. Religion only appears in three sections of the Act, one as a ground for asylum, second as preferential treatment for special religious workers, and a third on naturalization requirements. Regarding asylum, the Act defines a refugee as “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The Act also allows an alien, who- has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States to enter the country and work as a minister for a religious denomination, in a religious vocation in a professional or nonprofessional capacity, or a religious occupation either in a professional or nonprofessional capacity. Finally, to complete the naturalization process, a non-citizen is required to swear an oath of allegiance to the United States. The oath ends with the words, “so help me God.” A non-citizen is allowed to waive this part of the oath. Part of the rule provides that when a petitioner or applicant for naturalization, by reason of religious training and belief or for other reasons of good conscience, cannot take the oath with the words “on oath” and “so help me God” included, the words “and solemnly affirm” shall be substituted for the words “on oath,” the words “so help me God” shall be deleted, and the oath shall be taken in such modified form.
So, despite the paucity of religious edicts in the statute, why resort to religion to explain the zero-tolerance policy? This could be partially explained by the fact that race, religion, and nationality matter in immigrant selection. They are still used in the contexts of admission and enforcement to serve different purposes, such as border security. Even though the Establishment clause prohibits the government from favoring one religion over the other, immigration presents an area where the government can favor or disfavor a religious group. For example, in Trump v. Hawaii, even though the proclamation said nothing about religion, it overwhelmingly targeted Muslim nations. The Majority found that even though five of the seven nations in the proclamation had Muslim-majority populations, that alone did not support an inference of religious hostility. Naturally, this leads to the question, does the Act allow for discrimination based on religion? Sadly, the answer is yes, if nationality is equated with religion.
Mariam Khan & Ben Gitlleson, GOP Lawmakers Slam Biden After Visit to Migrant Detention Center at Border, ABC News (Mar. 15, 2021), https://abcnews.go.com/Politics/gop-lawmakers-slam-biden-visit-migrant-detention-center/story?id=76476391.
 Daniel Burke, Pope Suggests Trump ‘is Not a Christian’, CNN (Feb 18, 2016), https://www.cnn.com/2016/02/18/politics/pope-francis-trump-christian-wall/index.html.
 Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017).
 Trump v. Hawaii, 138 S. Ct. 2392 (2018).
 See Press Release, Jeff Sessions, Attorney General, DOJ, Announces Zero Tolerance Policy for Criminal Illegal Aliens (Apr. 6, 2018), https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry.
 See, e.g., The Trump Administration’s Zero Tolerance Immigration Enforcement Policy, Cong. Res. Serv. 1, 2 (Feb. 26, 2019) (noting that “The family separations have garnered extensive public attention.”).
 Richard Gonzalez, Sessions Cites the Bible to Justify Immigrant Family Separations, NPR (June 14, 2018), https://www.npr.org/2018/06/14/620181177/sessions-cites-the-bible-to-justify-immigrant-family-separations.
 Diocese of Savannah, Bishops Across U.S. Condemn Separation, Detention of Migrant Children, Southern Cross, June 21, 2018.
 Jennifer Hansler, Cardinal Dolan: There is No Bible Passage to Justify Family Separation, CNN (June 16, 2018), https://www.cnn.com/2018/06/16/politics/cardinal-dolan-family-separation-cnntv/index.html.
 INA § 101(a)(42).
 INA § 337.
 8 CFR§ 337(a)(1).
 8 CFR§ 337(b).
 Liav Orgad & Theodore Ruthizer, Race, Religion and Nationality in Immigration Selection: 120 Years After the Chinese Exclusion Case, 26 Const. Comment. 237, 261 (2010).
 Trump v. Hawaii, 138 S. Ct. 2392 (2018).
*Christopher Ogolla is an assistant professor of law, Barry University School of Law.
Monday, April 5, 2021
We have come a mighty long way in our criminal justice system. We have gone from a period of time when people of African descent were not considered humans and were deliberately excluded from serving on jury panels to seeing Black judges, defense attorneys and prosecuting attorneys taking part in selecting more diverse juries. Progress has been made, but how far have we really journeyed, and are the vestiges of racial animus and discrimination from the Jim Crow era truly eradicated? One need not look further than the current criminal trial we are witnessing of former Minneapolis police officer Derek Chauvin, to see that the answer is an unequivocal and resounding, no.
This past week we witnessed a cadre of State’s witnesses, many of whom are Black, who were being portrayed by the defense as “angry” and as a violent, threatening mob who posed a clear and present danger to the arresting officers. One witness, Donald Williams, was repeatedly questioned by the defense attorney about being “angry.” Mr. Williams steadily and continually replied that he showed “controlled professionalism” and that he was not an angry Black man. As if being an angry Black man was an abomination.
As the world had the unfortunate opportunity to witness the murder of George Floyd by a law enforcement officer, we saw what a prolonged, deliberate, methodical and calculating homicide looks like. As a crowd began to almost immediately form around the scene of the crime, it soon was evident that these officers had no intent on ensuring that Mr. Floyd’s rights were recognized, honored and adhered to. Within seconds of approaching George Floyd’s vehicle to inquire about an alleged counterfeit $20, the first officer on the scene demanded that Mr. Floyd place his hands on the steering wheel. Officer Thomas Lane, on his fourth day on the job, almost immediately upon approaching Mr. Floyd’s vehicle drew his service weapon and yelled at Mr. Floyd, “Put your f-cking hands up now!” This expletive laden exchange continued as Mr. Floyd called the officer “Sir” and begged repeatedly and urgently for his life and not be shot by the officer. Mr. Floyd was clearly in distress and afraid for his life as he was accosted by the police officers.
As Mr. Floyd was handcuffed and the officers were attempting to arrest him, a small crowd formed. Many in the crowd became increasingly concerned for how Mr. Floyd was being treated by the arresting officers. He was handcuffed with his hands behind his back and was lying face down, on the ground. Almost immediately after being placed on the ground, Officer Derek Chauvin put his knee onto the neck of George Floyd. Members in the crowd could easily see that Mr. Floyd was having difficulty breathing. If it was not obvious to anyone looking, you could hear Mr. Floyd saying he could not breathe. He said he could not breathe more than twenty times. He begged for water, said that he needed to sit up and that his stomach and “everything” was hurting. Despite the pleas for his life and the crowd begging for help for Mr. Floyd, Derek Chauvin continued to dig his knee deeper into the neck of George Floyd.
Watching this crime on social media and on television is gut wrenching and heart breaking. Imagine watching it live and in person. That is what the witnesses saw: a man murdered by those sworn to serve and protect. But the strangest part? These witnesses are being villainized and vilified for expressing anger after what they saw.
As Black and Brown lives have been scrutinized, monitored, experimented upon, dissected, mistreated, objectified and maligned for centuries, we are now at a point in our nation’s history where we are even denied from expressing the full spectrum of human emotions. We are being told we cannot and should not express anger after watching a helpless, handcuffed man being killed by three police officers bearing their entire body weight upon the length of the victim’s body.
But is this really a change from the past? NO. It is not. As we reflect back on the 1857 Dred Scott case which formally ruled that Blacks were not American citizens, we see how Black bodies have been controlled and manipulated for the sanctity and solemnity of white supremacy. Black people were not allowed to be considered humans and as such were not allowed to be viewed from the lens of a full, rich, human being. One with emotions, and ideas, and thought processes and lives worthy of living. By dictating when a person is allowed to express an emotion, and when an individual can show feelings and exhibit what is happening inside of them internally, we then have the ability to dehumanize that person. By shaming Donald Williams for perhaps feeling anger, we have effectively taken away his full humanity. When a Black person is discouraged or dissuaded from being angry, we have taken away from that person’s ability and right to fully and freely express who they are in that given moment.
We all have a right to be angry at times. That anger can be expressed in constructive and destructive ways but it should be left up to that person to decide how that anger will manifest itself. Expressing anger should be available to anyone regardless of their race or ethnicity.
Minneapolis firefighter, Genevieve Hansen, was asked if while standing at the scene if she was angry. She responded by saying, “I don’t know if you’ve seen anybody killed, but it’s upsetting.” This statement goes to the crux and heart of the matter. If witnessing a handcuffed Black man, begging for his life, in clear pain as his face is pressed to the ground with a cop’s knee on his neck be murdered cannot engender anger in Black people, then what can? If Black people cannot be angry after watching the life snuffed out of a man not posing a threat to law enforcement officers who eventually kill him, then what does it take to be righteously angry?
Black people have every right to be angry. After all of the atrocious, horrific abuses and travesties we have witnessed as a people, we should be angry. And no one has the moral authority to dictate what our emotions are or should be, especially the people that have caused and instigated that anger in the first place. White people push Black people into corners, harass, malign, belittle, demean, disenfranchise, abuse, mistreat, exploit, maim and murder us and then have the unmitigated gall to attempt to tell us we cannot and should not be angry? Even the Bible says to “be angry and sin not.” Anger is a completely appropriate response along with action to effectuate genuine, systematic and universal change. Perhaps that is why the attempts at making us feel shamed for feeling the emotion of anger is so persistent and concerted: they know when we get angry we will be motivated to action. Action that will be the beginning of the end of their reign of white terror.
Prof. Shelly Taylor Page is a Visiting Professor at Florida A&M University College of Law.
Wednesday, March 31, 2021
Professor Tristin Green of the University of San Francisco School School of Law has posted I'll See You at Work: Spatial Features and Discrimination, which will be published in the UC Davis Law Review in Fall 2021. Below is the abstract, and the full article is available right here:
We increasingly talk about HR practices and work cultures as mechanisms for discrimination in work with nary a thought given to one of the most obvious influences on our daily work lives: where we work. This article seeks to change that. In it, I delineate spatial features as a condition of discrimination in workplaces and develop an understanding of what spatial features might matter and why. Drawing together some seemingly disparate lines of research and literature—from social psychology and sociology to geographies and urban planning—I theorize three specific spatial feature categories: insularity, precarity, and permeability. Each of these categories is about place as it affects our interactions and our expectations around interactions in our work.
The Article also examines the law’s current stance toward spatial features, segregation, and discrimination. It turns out that we are at an important crossroad: Where once spatial segregation was an obvious form of discrimination, today courts are backpedaling. Segregation is downplayed as evidence of discrimination, and spatial features are often either ignored entirely or siphoned off into individualized allegations, where they are treated as passing, innocuous moments of subjective experience rather than as organization-driven causal contributors to systemic discrimination. I urge us to put work “place” on our research and advocacy agendas and to consider spatial features and segregation as casual mechanisms for discrimination in legal cases as well. I make several specific recommendations to this end.
Monday, March 29, 2021
Professor Cliff Villa of the University of New Mexico School of Law has just published Remaking Environmental Justice in the Loyola Law Review. Below is the abstract, and the full article is available here: https://digitalrepository.unm.edu/law_facultyscholarship/846/
From movements for civil rights in the 1960s and environmental protection in the 1970s, the environmental justice movement emerged in the 1980s and 1990s to highlight the disparate impacts of pollution, principally upon people of color and low-income communities. Over time, the scope of environmental justice expanded to address concerns for other dimensions of diversity, including gender, culture, and age. Some of this expansion reflected early principles of environmental justice for equity and inclusion in all aspects of environmental protection. However, the expanded scope of environmental justice also reflected deliberate efforts by the U.S. Environmental Protection Agency to move away from what might be seen as programs for affirmative action. A resulting concern for “all people” raises the question of whether “environmental justice” retains any unique meaning today.
In 2020, we saw that “all people” were not affected equally by COVID-19, with disproportionate impacts on blacks, Latinos, and indigenous communities. In 2020, we also saw unabated racism and racial violence, such as the police killings of George Floyd and Breonna Taylor. In 2020, we saw diverse communities, such as Flint, Michigan, continuing to lack necessities such as safe drinking water. And with every next catastrophic fire, flood, hurricane, or drought, we see further evidence of the uneven impacts of climate change. Together, these new and continuing challenges tell us that we still need an “environmental justice” to help focus our attention and resources on the disparate impacts of environmental harm. However, these new and continuing challenges may also tell us that we need to reframe our understanding of environmental justice to ensure better protection for people going forward.
One way to reframe this understanding may be to apply the heuristic of vulnerability analysis as proposed by legal theorist Martha Fineman and subsequent scholars. Starting from recognition that vulnerability is inherent in the human condition, vulnerability theory has already been explored in a variety of contexts, but has yet to be fully investigated as a means for reframing environmental justice for future application. This article urges further consideration of vulnerability theory in the environmental justice context. It specifically proposes a new definition of “environmental justice” to incorporate vulnerability theory in order to assist policymakers and community advocates with identifying the people most at risk from environmental hazards and most in need of attention to protect their health and safety.
Friday, March 26, 2021
Today marks the #StopAsianHate Virtual Day of Action and Healing. The mayor of Dallas, Eric Johnson, proclaimed March 26, 2021 as Stop Asian Hate Day. In the past couple of weeks, everyday people, activists, scholars, celebrities, and companies have filled social media feeds with messages of support for the Asian-American community using the hashtag #StopAsianHate. These posts respond to the horrible March 16th Atlanta shootings where Robert Aaron Long murdered eight people—six of whom were women of Asian descent. The #StopAsianHate hashtag reveals the widespread belief that hate is the cause of racial violence against the Asian-American community. Unfortunately, our collective focus on hate is a severe misunderstanding of the problem of racism in America.
Tuesday, March 23, 2021
The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131’s Special Issue. The deadline for submissions is July 15, 2021.
The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people—98% of whom are racial or ethnic minorities—live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States’s annexation and governance of its colonies. The Court’s holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law—and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.
We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to:
- the relationship between federalism and empire;
- the challenge of cultural accommodation within the United States’s constitutional framework;
- the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination;
- the intersection of race, gender, and class inequality in the context of U.S. colonial governance;
- and the promises and pitfalls of territorial autonomy.
The deadline for submissions is July 15, 2021. For more information, please see our announcement.
Wednesday, March 17, 2021
Earlier this week, I submitted my Essay for Georgia State University Law Review's upcoming symposium, "Social Justice and Racial Equality: What's Next?" My Essay is entitled Racial Triangulation, Interest-Convergence, and the Double-Consciousness of Asian Americans. Sadly, it now coincides with the tragic shootings in Atlanta yesterday, where a gunman killed several Asian Americans. I am working on another piece that is specifically about hate crimes against Asian Americans, but sadly again, that one needs to be updated frequently, including after yesterday.
This Essay integrates Professor Claire Jean Kim’s racial triangulation framework, Professor Derrick Bell’s interest-convergence theory, and W.E.B. Du Bois’s notion of double-consciousness, all to examine the racial positioning of Asian Americans and the dilemmas we face as a result. To do so, it considers the history of Asian immigration to the U.S., the model minority and perpetual foreigner stereotypes, Asian Americans’ positioning in the affirmative action debate, COVID-19 related hate and bias incidents, and Andrew Yang’s 2020 Democratic presidential candidacy. The Essay examines how racial stereotypes of Asian Americans have emerged through historical cycles of valorization and ostracism, as analyzed through the racial triangulation framework. It analyzes how the political interests of the U.S. government converged with those of educated professionals in Asian countries, leading to changes in immigration policy and the emergence of the model minority stereotype. The Essay considers various ways that Asian Americans have been simultaneously valorized as model minorities and ostracized as perpetual foreigners. It highlights the affirmative action debate, where Asian Americans have been cast as high-achieving victims of race-conscious university admissions policies and pitted against other groups of people of color, culminating with the current Students for Fair Admissions v. Harvard lawsuit. Finally, the Essay focuses on Andrew Yang’s presidential bid—particularly how his navigation of racial stereotypes reflected a double-consciousness that parallels the dilemmas faced by many Black Americans. The Essay concludes by arguing that to build coalitions and work towards racial justice, Asian Americans, Black Americans, and other people of color need to recognize their own double-consciousness and also see how it relates to the double-consciousness experienced by others.
Wednesday, March 3, 2021
As lawyers, we have a special obligation to mitigate inequities
You don’t need to be a lawyer steeped in the nuances of the Equal Protection Clause of the Fourteenth Amendment to understand that last summer’s Black Lives Matter protests highlighted the widespread view that our justice system is not treating people of color equitably. But, as lawyers, we have a special obligation to work to mitigate those inequities. One important method for mitigating the impact of systemic racism is recognizing and challenging implicit bias, a factor heavily contributing to the disproportionality of prosecution and punishment against certain groups.
Implicit Bias in the Criminal Justice System
Every human being has implicit biases. Mahzarin R. Banaji & Anthony G. Greenwald, Blindspot: Hidden Biases of Good People (1st ed. 2013). As a result, differences relating to race, culture, economic status, gender, physical appearance, religion, education, or other identifying characteristics affect individuals’ ability to immediately trust someone. This is an evolutionary adaptation of our cognitive functioning because humans once needed to make rapid assessments about whom to trust to ensure survival. Players in the criminal justice system are not immune from these implicit biases, including lawyers, police officers, and jurors. Even judges with a sworn duty of impartiality are affected by implicit bias. See, e.g., Jeffrey J. Rachlinski et al., “Does Unconscious Racial Bias Affect Trial Judges?,” 84 Notre Dame L. Rev. 1195 (2009).
In America, implicit biases against persons of color have a particularly profound effect on that group of people. Leland Ware, the Louis L. Redding Chair and professor at the University of Delaware’s Biden School of Public Policy and Administration, explained that “there is a centuries- old association of blackness with criminality and violence,” stating that “[d]ecisions about whom to arrest, how much force to use, what charges should be lodged and jury verdicts convicting minority defendants are adversely influenced by bias.” Beth Miller, “Biden Day One: Racial Equity,” UDel.edu (Jan. 20, 2021). Professor Ware added that “[t]his is an urgent matter that needs to be addressed.” Id.
Customs, practices, and norms that have the effect of treating white people and people of color differently are pervasive and often operate without scrutiny. According to Ware, “[m]anifestations of systemic discrimination are so common that they appear to be ‘normal’ and are unnoticed by those not adversely affected.” Id. However, failing to notice or denying our own implicit biases does not help defeat them. In fact, there is evidence that “believing ourselves to be objective puts us at particular risk for behaving in ways that belie our self-conception.” Jerry Kang et al., “Implicit Bias in the Courtroom,” 9 UCLA L. Rev. 1124, 117374 (2012)
Implicit bias training helps reduce bias to some degree. Even lawyers and judges, who are professionally trained to ask questions and second-guess assumptions, benefit from routine bias training. However, Ware cautioned that because stereotypes are “very deeply embedded in the criminal justice system, training can evaporate.” Telephone Interview with Leland Ware, Louis L. Redding Chair for the Study of Law and Public Policy, University of Delaware, Biden School of Public Policy and Administration, Newark, Del. (Jan. 28, 2021). For example, police officers must be retrained repeatedly to effectively reduce the disproportionality of prosecution and punishment in the criminal justice system.
Perhaps of equal importance is our individual motivation to address our own biases and engage in meaningful reflection. SpearIt, a law professor at the Thurgood Marshall School of Law at Texas Southern University, observed that judges and lawyers should consciously reflect on the range of biases that may affect outcomes in their cases. Seminars and workshops focused on implicit bias are just not enough. “For judges and lawyers, one of the keys to cracking implicit bias is to recognize that it happens intersectionally. While bias might be grounded in race, it might not, or it may run concurrent with others, such as indigency,” SpearIt explained. Email Interview with SpearIt, Professor of Law, Texas Southern University, Thurgood Marshall School of Law, Houston, Tex. (Feb. 2, 2021).
A Defense Lawyer’s Tactics for Changing Behavior
Defense lawyers can deploy a few key tactics to mitigate the impact of knee-jerk or biased reactions from a prosecutor during plea negotiations.
1.) Ask questions. People who are called upon to justify their position in response to appropriate and respectful questions are more likely to find themselves reflecting on potential biases. The questions must be nonaccusatory; putting a prosecutor on defense is likely to be counterproductive and harden biases. Helpful questions can include “Can you direct me to the discovery or facts about the case that you find most important in assessing the case?” or “Have you had enough time to consider the equities of the case, or is there more information you need from me to assist you with doing so?”
2.) Humanize your client with small talk. One may hope to immediately evoke empathy by informing the prosecutor about a client’s harrowing experiences. But for prosecutors who had a biased gut reaction, it is possible that hearing about an experience so different from their may increase an inability to relate. A better approach may be to first create deliberate moments for small talk to highlight shared human or American experiences, thus allowing the opportunity for connection.
3.) Evoke surprise or curiosity. When a prosecutor learns a surprising fact about your client or becomes curious about your client’s differing identity, culture, or experience, there is an opportunity for her to gain an empathetic connection with your client. One cannot be curious or surprised about something and at the same time adhere to a bias. Prepare your client to share a specific, personal piece of information that a prosecutor may not expect, or offer to provide further information in a format that the prosecutor would find useful, such as an equities letter or medical records illustrating important context.
Similar tactics may come in handy in criminal litigation filings and in the courtroom. In a conversation with Stephanie Lin, attorney at A New Way of Life Reentry Project (a nonprofit working to mitigate the effects of systemic racism by, among other things, assisting previously incarcerated individuals with expungement and family reunification), Lin explained that when she files expungement petitions, she mentions a client’s children or families in explaining why an expungement or sentence reduction would be in the interests of justice. Mentioning a client’s caretaking responsibilities and familial ties can have a humanizing impact. “Everyone can relate to wanting to be a good example for their children,” Lin said. Interview with Stephanie Lin, Att’y, A New Way of Life Reentry Project, in Los Angeles, Cal. (Jan. 29, 2021).
Lou Shapiro, a criminal defense attorney and former Los Angeles County public defender, also employs strategies for reducing the impact of implicit bias in juries. Shapiro observed that implicit bias can be a significant obstacle to juror impartiality. Shapiro recalled defending an individual with a Middle Eastern surname at two successive jury trials. The first trial resulted in a hung jury. For the second trial, Shapiro boldly decided to assess the presence of implicit bias during voir dire by asking questions about his client’s name, such as “When you hear his name, what do you feel like?” These questions, designed to reveal biased thinking, evoked conversation about potential unfair implicit bias, allowing Shapiro an opportunity to present real facts about his client’s identity. Shapiro believes that this tactic helped the jurors overcome any bias, enabled them to solely focus on the evidence, and contributed to a jury verdict in his client’s favor. “Getting over the implicit bias allowed the jurors to look at the case with an open mind” said Shapiro. “If you talk about it, you can get past it, just by recognizing it.” Telephone Interview with Lou Shapiro, Att’y, Los Angeles, Cal., & Former Pub. Defender, Los Angeles Cnty., Cal. (Jan. 26, 2021).
Systemic Reform in the Criminal Justice System
The herculean task of addressing implicit bias in criminal cases should not be relegated to individual trial lawyers. It is a heavy burden to expect lawyers to engage in the psychological fishing expedition of identifying potential juror biases—and even more onerous to expect them to dismantle these biases. Such tasks require extensive training as well as time for original and inventive thought for each case, time that many lawyers (especially prosecutors and public defenders) may not have.
A more realistic and long-term solution is broader systemic reform designed to address implicit bias in criminal cases. There is some consensus that jurors should have on-the-job implicit bias training prior to jury deliberations. Mark Bennett, recently retired judge of the U.S. District Court of the Northern District of Iowa, would discuss implicit bias extensively with jurors during jury selection, ask jurors to take a pledge against bias, and give specific implicit bias jury instructions before opening statements. These jury instructions defined implicit bias; explained that everyone, including the judge himself, holds implicit biases; and advised jurors to make their decision based upon evidence, reason, and common sense—not personal likes and dislikes. Kang, supra, at 1182– 83.
In addition, addressing bias that occurs at earlier inflection points in a criminal case could have an even more profound impact. When prosecutors conduct an initial review of a case, they typically have far-reaching discretion to determine a defendant’s charges and whether they are felony or misdemeanor charges. In a conversation with Dr. Arin Reeves, attorney and leading implicit bias researcher, Reeves explained that prosecutors consider, when selecting charges, what the likelihood is that they will succeed at trial on those charges, and that assessment could include consideration of whether the prosecution will benefit from judge or juror bias. “What they’re saying is, ‘We perceive you as not having a good chance in front of the judge or the jury.’ In that moment, they’re not questioning the bias, and the bias becomes [a defendant’s] reality.” Telephone Interview with Arin Reeves, President, Nextions LLC, Chicago, Ill. (Feb. 3, 2021). Thus, commented Reeves, “at the very introduction of the process, a lot of the rest of the path is determined.” Id.
Asking prosecutors to humanize defendants when confronted with an immense volume of cases may be unrealistic. Thus, instead of relying on individually motivated behavior to eliminate biased prosecutorial discretion, defense lawyers should provide prosecutors with tools for screening their decisions for bias. For example, “a uniform prosecutor decision checklist to guide key prosecutorial decisions . . . could potentially force line prosecutors to slow down, consider additional mitigating or exculpatory factors, and attempt to place each decision and case into a broader systemic context.” Lars Trautman, How a Checklist Could Improve Prosecution, (July 2020) (R Street Policy Study No. 199).
Moreover, prosecutorial discretion is molded by charging guidelines issued by lead prosecutors. For example, newly appointed U.S. Attorney General Merrick Garland is expected to instruct federal prosecutors to make charging decisions that do not trigger mandatory minimum sentences, a policy change expected to minimize racial disparities in sentencing. Jarrett Renshaw & Sarah N. Lynch, “Biden Selects Judge Merrick Garland for Attorney General,” Reuters (Jan. 6, 2021). Similarly helpful charging guidelines in various jurisdictions could be aimed at decreasing the use of disproportionately impactful drug sentencing laws and three‐strikes‐type repeat‐ offender laws.
Given our country’s reckoning over racial and social injustices, it is up to lawyers to attempt to dismantle implicit biases to honor their duty of zealous advocacy while waiting for broader systemic reform. As Reeves put it, “the ideal is systemic intervention, and until we get that in place, whatever individual humans can do, we should do.” Reeves, supra.
Andrea (Andi) Mazingo is a senior associate with Orrick Herrington & Sutcliffe LLP in Los Angeles, California, and is a pro bono family reunification attorney at A New Way of Life Reentry Project.
This was originally published by the American Bar Association on 2/26/21. Read it here.
Tuesday, March 2, 2021
The LSU Law Journal for Social Justice & Policy is hosting its inaugural symposium, “Fighting White Supremacy in the 21st Century,” on Friday, March 19, 2021 (3-5 PM CST). The panel will consist of five distinguished legal scholars.
The virtual symposium is free and open to the public. To register – and learn more about the event, the journal, and the panelists – please visit https://www.law.lsu.edu/ljsjpsymposium/.
Monday, March 1, 2021
On March 26, 2021, the Indiana Law Review virtual Symposium, No Justice, No Peace: Finding Justice in American Policing, will explore the ways in which the Black Lives Matter Movement has precipitated both discussions and direct action to make changes to policing in America. From Ferguson in 2014 to today, activists and advocates are making stronger and more direct calls for changes in the role police play in our communities, especially communities of color. The wake of Breonna Taylor’s and George Floyd’s deaths, communities all across the country are holding public discussions about power and policing. This symposium will explore the impacts of policing for minority groups, how policing has changed in the wake of the Black Lives Matter Movement, and whether the calls to defund the police should be realized.
The schedule is listed below and can be found at the symposium webpage here.
Symposium Schedule: 10:00 AM ET – 1:20PM ET (3 hours CLE available)
10:00 AM – 10:05, Welcome – Bre Robinson, Indiana Law Review Symposium Editor
10:05-10:10 AM, Opening Remarks – Dean Karen E. Bravo, IU McKinney School of Law
10:10 – 11:10 AM
War on Black Women: Challenging Criminalization, Creating Community Safety
Keynote Speaker, Andrea Ritchie, immigrant police misconduct attorney and organizer.
11:10 – 11:15 AM
11:15 AM – 12:15 PM
Police Reform: From Prisons to the Streets, How Far We Have Come and How Far We Still Have to Go
- Kami Chavis, Vice Provost/Professor for Academic Initiatives at Wake Forest Law. Former Assistant U.S. Attorney for the District of Columbia.
- SpearIt, Professor at Thurgood Marshall School of Law.
- Seth Stoughton, Associate Professor at South Carolina School of Law. Co-author of Evaluating Police Uses of Force. Former police officer with the Tallahassee Police Department.
- Katie Tinto, Clinical Professor at University California Irvine School of Law. Former public defender in Los Angeles County.
- Moderator: Lahny Silva, criminal law professor at IU McKinney School of Law.
12:15 – 12:20 PM
12:20 – 1:20 PM
Defunding the Police: What it Means, What it Does, and Whether it Should be Realized
- Alex Vitale, Professor of Sociology at Brooklyn College. Author of The End of Policing.
- Paige Fernandez, Policing Policy Advisor for the ACLU National Political Advocacy Department.
- James Gagliano, law enforcement analyst and policing methodology subject matter expert for CNN. Adjunct assistant professor and doctoral candidate at St. John’s University. Served with the FBI for 25 years.
- Keith “Wildstyle” Paschall, Indianapolis historian and activist. Central Indiana Community Foundation (CICF) Ambassador.
- Moderator: Ebony Chappel, award-winning multimedia journalist and community advocate.
Thursday, February 18, 2021
As social justice advocates rejoice over Donald Trump’s defeat and look for paths forward, the biggest lesson comes from the 2020 presidential election itself. The right to vote is “preservative of all other rights[,]” and this past year underscored its importance more than ever. In the midst of the COVID-19 pandemic, high voter turnout—and especially high Black voter turnout—propelled Joe Biden to victory. Even as the Electoral College and partisan gerrymandering continue to undermine the popular will, America’s changing demographics favor people of color and progressives. Moreover, the elected branches of government have become more significant because Trump packed the federal judiciary with conservative judges. Social justice advocates should not expect too many revolutionary legal rulings such as Brown v. Board of Education (1954). Most progressive change for the next generation will begin at the ballot box rather than the courthouse.
There are many barriers to expanding the franchise. With its ruling in in Shelby v. Holder (2013), the U.S. Supreme Court greatly compromised the Voting Rights Act of 1965 (VRA). Section 5 of VRA requires the covered jurisdictions to gain preclearance: federal authorization before enacting any laws that affect voting qualifications or procedures. The covered jurisdictions included states and localities with a particularly egregious history of discrimination in voting. Section 4 of VRA contained the coverage formula for Section 5, setting the criteria for preclearance to be applicable. The Court ruled that the coverage formula in Section 4 was unconstitutional because Congress had not updated it since 1975. Although the Court did not rule on the constitutionality of Section 5, its holding eliminated preclearance, allowing previously covered jurisdictions to enact restrictive voting laws. 
States have passed restrictions on the franchise, especially through purging of voter rolls and requiring voter identification. Through its ruling in Husted v. A. Phillip Randolph Institute (2018), the Supreme Court made it easier for localities to remove registered voters from their rolls. And even before Shelby, the Supreme Court had upheld strict voter ID laws in Crawford v. Marion County Election Board (2008), citing the state’s interest in preventing voter fraud. The Court made reference to voter ID provisions in the National Voter Registration Act of 1993 and the Help America Vote Act of 2002, although Congress intended these laws to make voting easier. With Trump’s numerous, baseless accusations of voter fraud in the 2020 presidential election, the climate is set for conservative state legislatures to pass more restrictions on voting.
Nevertheless, the state of Georgia provides hope and vision for social justice advocates. Georgia’s voter registration law is the most stringent in the nation, mandating an exact match of all required documents. Georgia also has a strict photo identification requirement at the polls. An ACLU report from September 2020 found that Georgia had wrongfully removed 200,000 voters from its voting rolls. But in spite of these restrictions, Georgia voters—especially Black voters—turned out in huge numbers, lifting Joe Biden to victory in the state. Biden became the first Democratic presidential candidate to win Georgia since 1992, and only the third since 1960. Turnout for the Georgia Senate runoffs in January was also excellent, leading Democrats Raphael Warnock and John Ossoff to surprising victories.
Former Georgia House Minority Leader and 2018 gubernatorial candidate Stacey Abrams deserves the most credit here. Abrams, who believed that voter suppression cost her the 2018 gubernatorial race, founded Fair Fight Action—an organization which fights voter suppression. Abrams and Far Fight Action were extremely effective in registering and turning out Georgia voters. They serve as a model for stopping voter suppression and increasing the franchise. And this is particularly important in Georgia, as it becomes a swing state and eventually a Democratic-leaning state. Similar political trends have begun in other Southern states, such as North Carolina and Texas. Social justice advocates in these states should follow Stacey Abrams’ lead.
There have also been other positive developments for voting rights. Although some states have made voting more difficult in particular ways, the polls have become more accessible in other ways. An increasing number of states now have automatic voter registration. Forty-two states allow some form of early voting, and 35 have either automatic or “no excuse” absentee voting. States do vary in the level of authentication required for absentee and mail-in ballots, and progressives should work to ensure that voters are not disenfranchised for minor errors. In the wake of Trump’s baseless claims, social justice advocates will also need to continue fighting for liberal registration and mail-in/absentee ballot laws. Additionally, advocates should ensure that there are a sufficient number of accessible polling places in all jurisdictions.
Advocates should also capitalize on growing support to end felon disenfranchisement. Forty-one states allow all felons to have their voting rights restored, and 48 allow this for at least some felons. In 2018, Florida voters approved, by a 2:1 margin, an amendment to the Florida Constitution that restored voting rights for most felons when they completed their sentences. Soon thereafter, the Florida legislature made this standard more difficult to meet by including payment of fines and fees as part of a “sentence.” Nevertheless, Florida does illustrate that even in states which have recently favored Republicans, restoration of felon voting rights can gain traction among the electorate.
Voting technology can also affect the franchise. After the fiasco with Florida’s recounts in the 2000 presidential election , the Help America Vote Act of 2002 aimed to modernize voting machines across the nation. But all of its goals have not been met, and many states still use old voting machines. Modernization of voting technology across jurisdictions is another important undertaking to ensure that votes are properly cast and counted.
Finally, although conservative judges now dominate the federal courts, social justice advocates can still look to state courts. Historically, state supreme courts, including some from traditionally conservative states, have rendered groundbreaking rulings on issues ranging from school desegregation to same-sex marriage to education funding. Voting rights are no exception: even as the U.S. Supreme Court continues to rule that partisan gerrymandering is non-justiciable, state high courts in Pennsylvania and North Carolina struck down gerrymandered districts on state constitutional grounds. With a conservative federal judiciary in place for many years, state courts provide an alternative judicial venue to increase the franchise.
Social justice advocates have always needed to be flexible in their approaches. It will take a combination of political engagement, impact litigation, direct action, and voter education and enthusiasm to expand voting for marginalized groups in our society. And while this will not be an easy undertaking, it is the first step in securing all other basic rights.
 Although Congress could still make new findings and use that evidence to create a new coverage formula, this would be difficult to accomplish in the current political climate. Moreover, the Supreme Court also noted in Shelby that Section 5 raises federalism issues. With its new conservative appointees, the Court could rule that Section 5 itself is unconstitutional.
 In Bush v. Gore (2000), the U.S. Supreme Court halted the Florida recounts on equal protection grounds, due to the variation in recounting standards used by different localities. Although the Supreme Court’s ruling was widely critiqued on federalism grounds, seven Justices and many commentators agreed that there were equal protection problems with the recounts.
This essay was originally published in Civil Rights Insider 5 (Winter 2021).