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  • 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.

  • 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.

  • The Right to Free Exercise of Religion in Prisons: How Courts Should Determine Sincerity of Religious Belief Under RLUIPA

    Religion plays a vital role in the daily lives of many prisoners. For incarcerated persons, a connection to the divine can provide comfort during periods of isolation from their family and community. From a policy perspective, spiritual development and religious practice promote rehabilitation and reduce recidivism in inmates. While prisoners forfeit many of their civil liberties, Congress has ensured that religious exercise is not among them. As Congress enhanced religious freedom protections for prisoners, prison facilities became increasingly concerned that prisoners would feign religiosity to gain certain religious accommodations. To counter this concern, prison facilities conditioned accommodations on the sincerity of an inmate’s religious belief. Some facilities, however, instituted problematic methods for determining sincerity of religious belief, such as requiring physical evidence of doctrinal adherence or removing lapsing prisoners from religious accommodations.

  • Special Administrative Measures and the War on Terror: When do Extreme Pretrial Detention Measures Offend the Constitution?

    Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive and even burden his or her constitutional rights, including the Fifth and Sixth Amendment rights to due process and the effective assistance of counsel, respectively. Special Administrative Measures (SAMs) consist of a variety of confinement conditions that the attorney general may impose on an individual defendant at his or her discretion. Their purpose is to severely restrict communication by defendants with the demonstrated capacity to endanger the public through their third-party contacts. Although Congress did not create SAMs with terrorists in mind, their use in terrorism cases is almost routine. This Note explores the constitutional implications of SAMs when they are imposed on terrorism defendants who are detained pending trial. Specifically, my interview with criminal defense attorney Joshua Dratel sheds critical light on the deleterious impact SAMs have on a defendant’s Fifth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel.

  • Federal Constraints on States’ Ability to License an Undocumented Immigrant to Practice Law

    No court has decided whether an undocumented immigrant can be admitted to a state bar in a manner consistent with federal law. At the time of this writing, the issue is pending before the California Supreme Court. Federal law prohibits states from providing public benefits to undocumented immigrants. In its definition of a “public benefit,” 8 U.S.C. § 1621 includes any professional license “provided by an agency of a State . . . or by appropriated funds of a State . . . .” The law’s prohibitions, however, are not unqualified. The statute’s “savings clause” allows states to provide public benefits to immigrants unlawfully present through an affirmative enactment of state law. Current scholarship surrounding this issue has primarily focused on public policy implications. This Note sets out to answer the question of whether 8 U.S.C. § 1621 generally precludes states from issuing law licenses to undocumented immigrants, and if so, how a state may circumvent that prohibition. First, this Note addresses the threshold question of whether a law license is a public benefit under the federal statute. Contrary to the argument put forward by the Committee of Bar Examiners of the State Bar of California, I argue that the most straightforward reading of the statute includes law licenses within the category of prohibited public benefits. Second, this Note explores how a state could use the statute’s savings clause to provide law licenses to undocumented immigrants. By requiring an affirmative enactment of state law, Congress likely had in mind legislative enactments. I argue, however, that in the realm of bar admission where state supreme courts have plenary power to set requirements, a court rule allowing for eligibility of undocumented immigrants should be sufficient to trigger the statute’s savings clause.

  • To Plea or Not to Plea: Retroactive Availability of Padilla v. Kentucky to Noncitizen Defendants on State Postconviction Review

    The United States incarcerates hundreds of thousands of noncitizen criminal defendants each year. In 2010, there were about 55,000 "criminal aliens" in federal prisons, accounting for approximately 25 percent of all federal prisoners. In 2009, there were about 296,000 noncitizens in state and local jails. Like Jose, these defendants usually do not know that their convictions may make them automatically deportable under the INA. Under the Supreme Court's recent ruling in Padilla v. Kentucky, criminal defense attorneys have an affirmative duty to give specific, accurate advice to noncitizen clients regarding the deportation risk of potential pleas. This rule helps assure that, going forward, noncitizens will be in a position to make informed plea decisions. Knowing the potential consequences of a conviction, they may choose to go to trial, risking a longer sentence but possibly avoiding conviction and subsequent deportation. Unfortunately, for some noncitizen defendants, Padilla was decided too late; at the time Padilla was announced, they had already pleaded guilty, relying upon the advice of defense counsel who failed to advise them of the potential immigration consequences of their conviction. Under what circumstances should relief be available to such noncitizen defendants? This Note argues that courts should apply the rule of Padilla v. Kentucky retroactively on state postconviction review to at least the limited group of defendants whose cases were on direct review when Padilla was decided.

  • RLUIPA: What’s the Use

    After Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which protects religious land use, many observers feared that the legislation would allow religious organizations to flout land-use regulations. Because RLUIPA defines "religious exercise" broadly, these observers feared the law would protect an array of nonworship uses, including commercial ventures, as long as a religious entity owned the land. More than a decade after RLUIPA's passage, this Note concludes that courts have not interpreted religious exercise as broadly as those observers feared. Courts have not, however, settled on a clear or consistent way of interpreting religious exercise. This Note reviews the case law and extracts a coherent framework to interpret religious exercise.

  • Some Women’s Work: Domestic Work, Class, Race, Heteropatriarchy, and the Limits of Legal Reform

    This Note employs Critical Race, feminist, Marxist, and queer theory to analyze the underlying reasons for the exclusion of domestic workers from legal and regulatory systems. The Note begins with a discussion of the role of legal and regulatory systems in upholding and replicating White supremacy within the employer and domestic worker relationship. The Note then goes on to argue that the White, feminist movement's emphasis on access to wage labor further subjugated Black and immigrant domestic workers. Finally, I end with an in-depth legal analysis of New York's Domestic Worker Bill of Rights, the nation's first state law to specifically extend legal protections to domestic workers. The Note discusses many provisions of the bill and draws on the experiences of organizers involved in the passage of the bill to provide critical analysis of the limitations of legal reform. With this Note, I hope to provide organizers, activists, and legal practitioners with additional critical tools crafting solutions, legal reforms, and narratives in the struggle to end the oppression of domestic workers.

  • Urgent Reform ‘in the Name of Our Children’: Revamping the Role of Disproportionate Minority Contact in Federal Juvenile Justice Legislation

    Disproportionate minority contact ("DMC") has plagued the United States juvenile justice system for decades, but federal legislation has lacked the clarity and guidance to battle this affliction. A strong partnership must exist between state and federal entities in order to directly target DMC and thereby decrease the appallingly disproportionate number of minority children who come into contact with the juvenile justice system. This Note discusses the problem of DMC, identifies state and private efforts to combat the crisis, and indicates deficiencies in the Juvenile Justice and Delinquency Prevention Act as well as its reauthorization bill, S. 678. The Note urges Congress to revisit the reauthorization bill and supplement it with stand-alone legislation that will address DMC more effectively. Such law reform is urgent and timely, because the needs of at risk minority children have never been more pronounced than they are today.

  • Finding a Cure in the Courts: A Private Right of Action for Disparate Impact in Health Care

    There is no comprehensive civil rights statute in health care comparable to the Fair Housing Act, Title VII, and similar laws that have made other aspects of society more equal. After Congress passed the Civil Rights Act of 1964, Title VI served this purpose for suits based on race, color, and national origin for almost four decades. Since the Supreme Court's 2001 ruling in Alexander v. Sandoval, however, there has been no private right of action for disparate impact claims under Title VI, and civil rights enforcement in health care has suffered as a result. Congress has passed new legislation in response to past Supreme Court decisions that read civil rights law too narrowly. In that tradition, this Note argues that courts may interpret S. 1557 of the Patient Protection and Affordable Care Act of 2010 as creating a private right of action for disparate impact in health care that is available to diverse protected classes.