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Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement
Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike. In light of those failures, is felon disenfranchisement here to stay? This Note contemplates that question, beginning with a comprehensive analysis of the history of felon disenfranchisement provisions in America, tracing their roots to the largescale effort to disenfranchise African Americans during Reconstruction, and identifying ways in which the racism of the past reverberates through practices of disenfranchisement in the present day. Applying this knowledge to understandings of prior case law and recent voting rights litigation, a path forward begins to emerge.The Resilience of Noxious Doctrine: The 2016 Election, the Marketplace of Ideas, and the Obstinacy of Bias
The Supreme Court has recognized the central role that free expression plays in our democratic enterprise. In his dissenting opinion in United States v. Abrams, Justice Holmes offered a theory of how free expression advances our search for truth and our cultivation of an informed electorate. That model—often called the “marketplace of ideas,” based upon the metaphor used by Holmes—has proven to be one of the most persistent and influential concepts in First Amendment jurisprudence. The marketplace of ideas model essentially holds that free expression serves our democratic goals by allowing differing proposed truths and versions of the facts to compete with each other for acceptance. The theory maintains that the best ideas and the most reliable information will emerge and prevail. The well-informed electorate that results from this process will then make better decisions in our participatory democracy. During the 2016 presidential election, however, it became apparent that a number of statements made by then-candidate Donald Trump proved difficult to rebut in the public dialogue, even though they were clearly and demonstrably false. Of particular concern, some of those statements fed into biases against and stereotypes of racial, ethnic, and religious minorities and women. This disinformation stubbornly resisted efforts at correction. This Article discusses the marketplace of ideas model and its underlying assumptions about how human beings process information and make decisions. It then proceeds to explain, through recent social science research, why the dynamic envisioned by the marketplace of ideas theory often fails to provide an effective counter-narrative to statements that reinforce racial, ethnic, religious, and gender biases and stereotypes. The Article concludes with some necessarily preliminary and exploratory thoughts about potential curative measures.Legacy in Paradise: Analyzing the Obama Administration’s Efforts of Reconciliation with Native Hawaiians
This Article analyzes President Barack Obama’s legacy for an indigenous people—nearly 125 years in the making—and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule—an attempt to provide Native Hawaiians with recognition and greater control over their own affairs to counter their negative socio-economic status—is analyzed within the historical and political context of a government coy to live up to its reconciliatory promises. The Article analyzes past attempts to establish a government-to-government relationship and considers new avenues for reaching this end. The Article concludes that although the rule brings the federal government closer to its ideals of justice, it does not go far enough to engender true social healing, specifically because of the uncertainty that the rule will be followed by a conservative Trump Administration that will likely be hostile toward Native Hawaiians and other indigenous communities.The Tyranny of Small Things
In this legal-literary essay, I recount a day I spent watching criminal sentencings in an Alhambra, California courthouse, highlighting the sometimes mundane, sometimes despairing, imports of those proceedings. I note that my analysis resembles that of other scholars who tackle state over-criminalization and selective law enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought, who believe that the study (or, in this case, practice) of literature will encourage calls for justice by disclosing buried, yet critical, human experience and emotions.Am I My Client? Revisited: The Role of Race in Intra-Race Legal Representation
This Article examines the challenges of intra-race legal representation for lawyers of color, law students of color, and those teaching law students of color by analyzing how the dynamics of the lawyer’s and client’s racial sameness impact legal representation. This Article brings together three strands of lawyering theory – the role of race in lawyering, critical race theory, and the role of the lawyer in intra-race legal representation. In doing so, this Article explores a number of provocative questions: Does being the same race as their clients make lawyers better legal representatives? Should lawyers of color embrace or resist race’s influence on intra-race legal representation? How do lawyers balance their desire to remain representative of their race with their responsibility to their clients? This Article also scrutinizes the role of the lawyer of color in intra-race legal representation by examining questions that are under-reviewed, such as: Do lawyers of color engage in the same explicit and implicit biases against their clients of color that lawyers of color similarly suffer? Do racial stereotypes tempt the lawyer to be more sympathetic towards, and understanding of, their same-race clients, or does it cause the lawyer to view the same-race client as an ‘other’? For lawyers of color and clients of color who seek same-race legal representation, this Article explores a difficult question— Is the lawyer of color representative enough of the race to be a representative for the client, particularly when the lawyer of color and the client of color live in different socio-economic environments? Given the resurgent examination of the role of race in interactions between persons of color and persons of power, this Article presents a timely opportunity to examine and question the role of race and the impact of divergent socio-economic status in intra-race legal representation.Tightening the OODA Loop: Police Militarization, Race, and Algorithmic Surveillance
This Article examines how military automated surveillance and intelligence systems and techniques, when used by civilian police departments to enhance predictive policing programs, have reinforced racial bias in policing. I will focus on two facets of this problem. First, I investigate the role played by advanced military technologies and methods within civilian police departments. These approaches have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools and automates de facto penalization and containment based on race. Second, I will explore these militarized systems, and their effects, from an outside-in perspective, paying particular attention to the racial, societal, economic, and geographic factors that play into the public perception of these new policing regimes. I will conclude by proposing potential solutions to this problem that incorporate tests for racial bias to create an alternative system that follows a true community policing model.Pushing an End to Sanctuary Cities: Will it Happen?
Sanctuary jurisdictions refer to city, town, and state governments (collectively, localities or local governments) that have passed provisions to limit their enforcement of federal immigration laws. Such local governments execute limiting provisions in order to bolster community cooperation, prevent racial discrimination, focus on local priorities for enforcement, or even to a show a local policy that differs from federal policy. The provisions are in the forms of executive orders, municipal ordinances, and state resolutions. Additionally, the scope of the provisions vary by locality: some prohibit law enforcement from asking about immigration status, while others prohibit the use of state resources to enforce federal immigration laws. Despite these variations, such local provisions intend to stifle cooperation with the federal government to adopt a more inclusionary local enforcement policy. Immigration policy is unanimously understood as a federal power, suggesting that federal immigration laws preempt the local governments’ provisions. Such preemption challenges have been brought to court, yet sanctuary cities remain largely untouched. The July 2015 murder of Kate Steinle in San Francisco, CA, renewed political discourse on the topic. Juan Francisco Lopez-Sanchez, an undocumented immigrant who had been previously deported five times, was charged for the murder. Mr. Lopez-Sanchez’s long history of crime and immigration violations fueled critiques of city policies and put the federal spotlight back onto sanctuary cities. The House of Representatives has since passed H.R. 3009, which would deny some federal assistance to localities that enact provisions prohibiting officers from taking certain actions with respect to immigration. President-elect Donald Trump recently announced his bold plan to cancel all federal funding to such localities. Other immigration-focused measures continue to be introduced and discussed in Congress. If passed, what practical impact would H.R. 3009, or similar legislation, have on local immigration enforcement? The bill still has considerable obstacles to overcome. However, enactment of such legislation has the potential to push local enforcement towards cooperation with federal policy.Black Health Matters: Disparities, Community Health, and Interest Convergence
Health disparities represent a significant strand in the fabric of racial injustice in the United States, one that has proven exceptionally durable. Many millions of dollars have been invested in addressing racial disparities over the past three decades. Researchers have identified disparities, unpacked their causes, and tracked their trajectories, with only limited progress in narrowing the health gap between whites and racial and ethnic minorities. The implementation of the Affordable Care Act (ACA) and the movement toward value-based payment methods for health care may supply a new avenue for addressing disparities. This Article argues that the ACA’s requirement that tax-exempt hospitals assess the health needs of their communities and take steps to address those needs presents a valuable opportunity to engage hospitals as partners in efforts to reduce racial health disparities. Whether hospitals will focus on disparities as they assess their communities’ health needs, however, is uncertain; preliminary reviews of hospitals’ initial compliance with the new requirement suggest that most did not. Relying on Professor Derrick Bell’s interest-convergence theory, this Article explores how hospitals’ economic interests may converge with interests in racial health justice. It presents two examples of interventions that could reduce disparities while saving hospitals money. The Article closes by identifying steps that health justice advocates, the federal government, and researchers should take to help, in Professor Bell’s words, “forge [the] fortuity” of interest convergence between hospitals and advocates for racial justice, and lead to progress in eliminating racial health disparities.Foreword: Innocent Until Proven Poor
One of the core tenets of our criminal justice system is the presumption of innocence until proven guilty. As the title of the Symposium recognizes, we have allowed our justice system to ignore that presumption for people living in poverty in a variety of ways. Instead, it often inflicts additional and harsher punishment on individuals because of their poverty.The Price of Carceral Citizenship: Punishment, Surveillance, and Social Welfare Policy in an Age of Carceral Expansion
The unprecedented rise in the number of people held in U.S. jails and prisons has garnered considerable attention from policy makers, activists, and academics alike. Signaled in part by Michelle Alexander’s New York Times bestseller, The New Jim Crow, and the unlikely coalition of activists, policy makers, celebrities, and business leaders on both sides of the political aisle who have pledged to end mass incarceration in our lifetime, the prison system has returned to public policy discourse in a way that was unforeseen less than a decade ago. On any given day in 2014, just over 2.3 million people were held in U.S. jails and prisons.1 This figure represents a tenfold increase in the inmate census since 1973, and about 22 percent of the world’s prisoner population.2 Unfortunately, while the causes and consequences of mass incarceration warrant rigorous examination, the focus on arrest and imprisonment has left a curious, yet equally historic phenomenon hidden in plain sight—the rise of a supervised society, and with it, an alternate track of citizenship.
