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Keynote Remarks
In communities across America today, from Ferguson, Missouri, to Flint, Michigan, too many people—especially young people and people of color—live trapped by the weight of poverty and injustice. They suffer the disparate impact of policies driven by, at best, benign neglect, and at worst, deliberate indifference. And they see how discrimination stacks the deck against them. So today, as we discuss the inequality that pervades our criminal justice system—a defining civil rights challenge of the 21st century—we must also acknowledge the broader inequalities we face in other segments of society. Because discrimination in so many areas—from the classroom, to the workforce, to the marketplace—perpetuates the inequality we see in our justice system. And for those already living paycheck-to-paycheck, a single incident—whether an arrest by the police or a fine by the court—can set off a downward spiral. It can lead to a cycle of profound problems that ruin lives and tear apart families. Problems like losing your health care, your job, your children, or your home. As someone who focuses on civil rights work and criminal justice reform, I see these problems every day. But today in America, I also see a country on the cusp of change. Across a wide range of political perspectives, policymakers and advocates have come together to bridge divides and support meaningful criminal justice reform. And I’m proud to say that this administration—and this Department of Justice—has made criminal justice reform a top priority. We believe that our country needs, and deserves, a criminal justice system that more effectively protects our communities, more fairly treats our people, and more prudently spends our resources. And we believe that no matter how deeply rooted and long-standing the injustices that underlie inequality in our criminal justice system—with clear thinking, hard work and collaboration—we can make real progress.How the E-Government Can Save Money by Building Bridges Across the Digital Divide
As government agencies and federal aid recipients begin to build a presence online, they must recognize that language accessibility is morally required, fiscally responsible, and compulsory under federal civil rights law. This Note explores statutes, federal policies, and case law that purport to protect the rights of limited English proficient (“LEP”) individuals in cyberspace. The Note suggests reforms, policies, and programs that should be adopted by federal aid recipients to ensure that LEP individuals have meaningful access to online services.Barriers to the Ballot Box: Implicit Bias and Voting Rights in the 21st Century
While much has been written regarding unconscious or “implicit bias” in other areas of law, there is a scarcity of scholarship examining how implicit bias impacts voting rights and how advocates can move courts to recognize evidence of implicit bias within the context of a voting rights claim. This Article aims to address that scarcity. After reviewing research on implicit bias, this Article examines how implicit bias might impact different stages of the electoral process. It then argues that “results test” claims under Section 2 of the Voting Rights Act (VRA) present an opportunity for plaintiffs to introduce evidence regarding implicit bias in the electoral process. In addition, this Article explores policy solutions to reduce the impact of implicit bias in elections.Strip Searching in the Age of Colorblind Racism: The Disparate Impact of Florence v. Board of Chosen Freeholders of the County of Burlington
In 2012, the Supreme Court of the United States decided Florence v. Board of Chosen Freeholders of the County of Burlington. The Court held that full strip searches, including cavity searches, are permissible regardless of the existence of basic reasonable suspicion that the arrestee is in possession of contraband. Further, the Court held that law enforcement may conduct full strip searches after arresting an individual for a minor offense and irrespective of the circumstances surrounding the arrest. These holdings upended typical search jurisprudence. Florence sanctions the overreach of state power and extends to law enforcement and corrections officers the unfettered discretion to conduct graphically invasive, suspicion-less strip searches. The Court’s dereliction of duty is enough to concern all citizens. However, the impact of this phenomenal lapse will not be felt equally in the age of what Bonilla-Silva has termed colorblind racism. In 2013, in the case of Floyd v. City of New York, Judge Shira A. Scheindlin found that between January 2004 and June 2012, the New York City Police Department (“NYPD”) made 4.4 million stops. She further found that more than eighty percent of these 4.4 million stops were of Blacks or Hispanics. Specifically, Judge Scheindlin found that in “52% of the 4.4 million stops, the person stopped was black, in 31% the person [stopped] was Hispanic, and in 10% the person stopped was white.” This rate of stops and frisks is grossly disproportionate to Black and Hispanic population representation in New York City and the United States in general. Further, as Judge Scheindlin astutely points out, “The NYPD’s policy of targeting ‘the right people’ for stops . . . is not directed toward the identification of a specific perpetrator, rather, it is a policy of targeting expressly identified racial groups for stops in general.” These findings make clear that Florence and colorblind racism enable law enforcement to wage war against the civil rights of minority citizens. This Article argues that the Court’s phenomenal lapse in Florence and its general abdication of law enforcement oversight inevitably subjects minorities, particularly Blacks and Latinos, to the blanket authority of law enforcement to harass and humiliate based on perfunctory arrests predicated on the slightest of infractions. Other legal analyses of Florence have largely ignored, and hence minimized, the salience of race when thinking about strip searches. In light of the significant consequential impacts of this decision on minority populations, this oversight is itself unreasonable. This paper will analyze the rationale and policy implications, particularly for people of color, in light of Florence. Finally, I will also propose policy recommendations to temper the projected negative impacts of the decision.Without Representation, No Taxation: Free Blacks, Taxes, and Tax Exemptions Between the Revolutionary and Civil Wars
This Essay is the first general survey of the taxation of free Blacks in free and slave states between the Revolutionary and Civil Wars. A few states treated all equally for tax purposes, but most states enacted taxation systems that subjected free Blacks to different requirements. Both free and slave states viewed free Blacks as an undesirable population, and this Essay posits that—within the relevant political constraints—states used taxes and tax exemptions to dissuade free Black immigration and limit the opportunities for free Blacks within their borders. This topic is salient for at least two reasons. First, the Essay sheds light on laws and events that the literature—and the American educational system—has largely ignored. It directly contradicts the commonly held belief that free Blacks largely enjoyed the same set of rights and privileges as their White counterparts until Jim Crow and the Black Codes set in after the Civil War. Second, by juxtaposing then-widely prevailing views with historical tax laws, this Essay underscores the inherent relationship between tax policy and social policy. Taxes have never been just about bolstering the public fisc. Although this Essay will hopefully never have direct applicability to contemporary events, it can provide insight into current and future tax policies and the extent to which history, prejudice, and economic concerns inform policymakers’ decisions.Cross-Racial Identifications: Solutions to the “They All Look Alike” Effect
On a late summer evening in August of 1997, Nathan Brown was in his apartment rocking his young daughter to sleep when the police knocked on his door. The police sought Brown, one of a few Black men in his apartment complex, after a young White woman said she had been assaulted by a shirtless Black man wearing black shorts with strong body odor walking through the complex’s courtyard. Minutes later the police took Brown outside and put him in the patrol car for a one-on-one “showup.” They brought him out by himself to see the victim wearing black shorts without a shirt, and she quickly identified him as her attacker, even though he lacked a strong body odor. The victim explained later that she believed he had showered right after the attack, meaning he was her attacker. The victim again identified Brown as her attacker at trial. Though Brown took the stand in his own defense and testified that he was home at the time of the attack caring for his “fussy infant daughter”—an alibi corroborated by four of his family members—he was convicted of attempted aggravated rape and sentenced to twenty-five years in prison on the basis of the victim’s identification alone. In June 2014, Brown was exonerated of the crime when DNA evidence revealed that he could not have been the attacker. The DNA evidence was an exact match to a seventeen-year-old Black male who had been living within blocks of the apartment complex where the victim had been attacked. Nevertheless, Brown spent nearly seventeen years in prison for a crime that he did not commit.Schooling the Police: Race, Disability, and the Conduct of School Resource Officers
On March 25, 2015, police officers effectuated a violent seizure of a citizen in Kenner, Louisiana: [T]he police grabbed her by the ankles and dragged her away [from the tree]. . . . [She was] lying face down on the ground, handcuffed with her face pressed so closely to the ground that she was having difficulty breathing due to the grass and dirt that was so close to her nose and mouth. An officer was kneeling on top of her, pinning her down with a knee squarely in [her] back. Several other officers, as well as several school administrators, stood around the scene watching. [She] was crying and yelling[,] “Help, I’m hurting.” The handcuffed individual was a Black, ten-year-old child who has been diagnosed with autism. On the day of the incident, she “began acting up in class, running around the classroom, climbing on desks, and knocking down classroom chairs.” After she climbed out of the classroom window and up a tree on school property, school officials called the police. Instead of responding to the situation in a manner appropriate for a fourth grader with autism, officers responded with handcuffs and a knee in her back. In Mississippi, a twelve-year-old diagnosed with bipolar disorder “was handcuffed in front of several classmates and put in the back of a police car outside of [his middle school]” after “los[ing] his temper in an argument with another student, and hit[ing] several teachers when they tried to intervene.” Following the incident, the boy was briefly admitted to a mental health facility, then “charged with three counts of assault.” In Virginia, a Black eleven-year-old boy diagnosed with autism was charged with disorderly conduct and felony assault of a police officer for his acts of kicking over a trash can in school and trying to pull away when a school resource officer grabbed him. Unfortunately, the facts in these elementary school students’ cases are not rare. Over the past few decades, schools across the country have adopted extremely harsh discipline policies to control student misbehavior that may be caused by an underlying disability.Disparaging Trademarks: Who Matters
For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group—albeit for various reasons. Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous, offensive to the general population, or disparaging, offensive to the referenced group. In clarifying the appropriate test for disparaging, however, the decision makers have overly analogizing the two prohibitions, rendering the disparaging trademark prohibition less effective in protecting non-majority groups from offensive trademarks.Foreword: Reflections on Our Founding
Law Journals have been under heavy criticism for as long as we can remember. The criticisms come from all quarters, including judges, law professors, and even commentators at large. In an address at the Fourth Circuit Judicial Conference almost a decade ago, for example, Chief Justice Roberts complained about the “disconnect between the academy and the profession.” More pointedly, he continued, “[p]ick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” Similarly, law professors have developed what Lawrence Friedman calls “a literature of invective” against law reviews. Adam Liptak summarized one line of criticism with a question: “[W]hy are law reviews, the primary repositories of legal scholarship, edited by law students?”Blackness as Character Evidence
Federal Rule of Evidence 404 severely limits the government’s ability to offer evidence of a defendant’s character trait of violence to prove action in conformity with that trait on the occasion in question. The Rule states that such character evidence is generally inadmissible when offered to prove propensity. The Rule also allows the government to offer evidence of an alleged victim’s character for peacefulness in homicide cases where the defendant asserts the self-defense privilege. Although criminal defendants may offer character evidence under limited circumstances, Rule 404 creates a significant disincentive for doing so. Where a defendant offers evidence of an alleged victim’s character trait to prove action in conformity therewith, this decision not only opens the door for the prosecution to offer positive character evidence on behalf of the victim but it also allows the prosecutor to offer bad character evidence against the defendant. Similarly, if the government offers evidence of a homicide victim’s character for nonviolence to rebut a claim of self-defense, doing so opens the door to the introduction of the victim’s bad character evidence.
