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  • Keeping Counsel: Challenging Immigration Detention Transfers as a Violation of the Right to Retained Counsel

    In 2019 U.S. Immigration and Customs Enforcement (“ICE”) incarcerated nearly 500,000 individuals. More than half of the individuals detained by ICE were transferred between detention facilities, and roughly thirty percent of those transferred were moved between federal circuit court jurisdictions. Detention transfers are isolating, bewildering, and scary for the detained noncitizen and their family. They can devastate the noncitizen’s legal defense by destroying an existing attorney-client relationship or the noncitizen’s ability to obtain representation. Transfers also obstruct the noncitizen’s ability to gather evidence and may prejudicially change governing case law. This Note describes the legal framework for transfers and their legal and non-legal impacts. It contends that transfers violate noncitizens’ constitutional and statutory rights to retained counsel by obstructing the attorney-client relationship. Further, it argues that federal courts have jurisdiction to review right to counsel challenges to transfers under the Immigration and Nationality Act. Written with practitioners in mind, this Note canvasses the practical and legal difficulties of making such a challenge.

  • Law and Anti-Blackness

    This Article addresses a thin slice of the American stain. Its value derives from the conversation it attempts to foster related to reckoning, reconciliation, and redemption. As the 1930s Federal Writers’ Project attempted to illuminate and make sense of slavery through its Born in Slavery: Slave Narratives From 1936-1938, so too this project seeks to uncover and name law’s role in fomenting racial division and caste. Part I turns to pathos and hate, creating race and otherness through legislating reproduction— literal and figurative. Part II turns to the Thirteenth Amendment. It argues that the preservation of slavery endured through its transformation. That the amendment makes no room for equality further establishes the racial caste system. Part III then examines the making of racial division and caste through state legislation and local ordinances, exposing the sophistry of separate but equal. Part IV turns to the effects of these laws and how they shaped cultural norms. As demonstrated in Parts I-IV, the racial divide and caste system traumatizes its victims, while also undermining the promise of constitutional equality, civil liberties, and civil rights.

  • The Right to Be and Become: Black Home-Educators as Child Privacy Protectors

    The right to privacy is one of the most fundamental rights in American jurisprudence. In 1890, Samuel D. Warren and Louis D. Brandeis conceptualized the right to privacy as the right to be let alone and inspired privacy jurisprudence that tracked their initial description. Warren and Brandeis conceptualized further that this right was not exclusively meant to protect one’s body or physical property. Privacy rights were protective of “the products and the processes of the mind” and the “inviolate personality.” Privacy was further understood to protect the ability to “live one’s life as one chooses, free from assault, intrusion or invasion except as can be justified by the clear needs of community living under a government of law.” Case law supported and extended their theorization by recognizing that privacy is essentially bound up in an individual’s ability to live a self-authored and self-curated life without unnecessary intrusions and distractions. Hence, privacy may be viewed as the right of individuals to be and become themselves. This right is well-established; however, scholars have vastly undertheorized the right to privacy as it intersects with racial discrimination and childhood. Specifically, the ways in which racial discrimination strips Black people—and therefore Black children—of privacy rights and protections, and the ways in which Black people reclaim and reshape those rights and protections remain a dynamic and fertile space, ripe for exploration yet unacknowledged by privacy law scholars. The most vulnerable members of the Black population, children, rely on their parents to protect their rights until they are capable of doing so themselves. Still, the American education system exposes Black children to racial discrimination that results in life-long injuries ranging from the psychological harms of daily racial micro-aggressions and assaults, to disproportionate exclusionary discipline and juvenile incarceration. One response to these ongoing and often traumatic incursions is a growing number of Black parents have decided to remove their children from traditional school settings. Instead, these parents provide their children with home-education in order to protect their children’s right to be and become in childhood.

  • Ramos v. Louisiana: The Fight for Unanimous Jury Verdicts as a Constitutional Right

    By Becky Wasserman Associate Editor, Vol. 25 Ten out of twelve jurors. That’s all it takes in the State of Oregon to convict a person accused of a crime.[1] Before 2018, Louisiana also permitted non-unanimous jury verdicts in criminal trials.[2] Now, Oregon is the last…

  • How ‘Know Your Rights Training’ Can Protect You and Others

    By Liz Morales Associate Editor, Vol. 24 Disclaimer: This blog post is not intended to provide legal advice. If you are interested in learning about your constitutional rights, please visit the webpage of a legal organization linked below, or consult with a licensed attorney. The importance of ‘Know Your Rights’ training was recently highlighted in a video showing a man using his training to prevent an Immigration and Customs Enforcement (ICE) officer from arresting two persons.[1] In the clip, an unidentified ICE officer can be seen approaching a vehicle claiming to have a judicial warrant for the arrest of an alien.[2] Sitting in the driver’s seat was Bryan MacCormack, executive director of a nonprofit organization that helps immigrant communities in Columbia County in New York. [3]   MacCormack and the two undocumented persons he was accompanying had just left the local court house to deal with minor traffic citations when the ICE officer came up to their window.[4] Refusing to open his car door, MacCormack told the ICE officer that the paperwork he was presenting to him was “not signed by a judge” and thus was “not a judicial warrant.”[5] “I have no obligation to oblige by that warrant,” he continued.[6] MacCormack was able to articulate his rights to the ICE officer thanks in part to his Department of Justice-accredited ‘Know Your Rights’ training.[7] The training had provided attendees with copies of the letter the ICE officer was presenting as well as copies of a ‘real’ warrant, both of which MacCormack had in the car with him.[8] MacCormack said training administrators provided these materials so that “people know not to listen” to documents like the one used by this ICE officer.[9]

  • The Danger of Nonrandom Case Assignment: How the Southern District of New York’s “Related Cases” Rule Shaped Stop-and-Frisk Rulings

    The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s “related cases” local rule, which allows judges to “accept” a new case related to an earlierfiled case already on their docket. Unlike past stop-and-frisk scholarship, this Article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence. The Article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The Article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of over-sight. The Article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of “hot-spot policing.” The Article turns to the stop-and-frisk litigation previously and currrently assigned to Judge Scheindlin and uses it to examine the serious—and substantive— consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence, for example, elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. This Article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, advocates for the publication of assignment decisions, and suggests appropriate motion practice for challenging the assignments. Finally, the Article evaluates the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Because her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment, they may be subject to reversal, consequently narrowing the rights at stake. On December 23, 2013, some but not all of the changes to the Southern District of New York’s local rules suggested by this Article, which was available in draft form on the Social Science Research Network, and cited in an article that appeared in November in the Wall Street Journal, were implemented. The changes, and their shortcomings, are described in the Article’s Afterword.

  • 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.

  • The Court Loses its Way with the Global Positioning System: United States v. Jones Retreats to the “Classic Trespassory Search”

    This Article analyzes United States v. Jones, in which the Supreme Court considered whether government placement of a global positioning system (GPS) device on a vehicle to follow a person’s movements constituted a Fourth Amendment “search.” The Jones Court ruled that two distinct definitions existed for a Fourth Amendment “search.” In addition to Katz v. United States’s reasonable-expectation-of-privacy standard, which the Court had used exclusively for over four decades, the Court recognized a second kind of search that it called a “classic trespassory search.” The second kind of search occurs when officials physically trespass or intrude upon a constitutionally protected area in order to obtain information. This work examines the concerns created by Jones’s ruling. This Article asserts that, by emphasizing property rights in bringing back the decades-old physical trespass test, Jones potentially undermined the Katz standard. Further, Jones added an inquiry into motivation by asking if the government committed the intrusion to obtain information, thus creating a subjective inquiry that is inconsistent with much of Fourth Amendment doctrine. Finally, in its attempt to distinguish its facts from earlier vehicle-tracking cases, the Court created a loophole in Fourth Amendment application that law enforcement could exploit in the future.

  • Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings

    Today, an immigrant green card holder mandatorily detained pending his removal proceedings, without bail and without counsel, due to a minor crime committed perhaps long ago, faces a dire fate. If he contests his case, he may remain incarcerated in substandard conditions for months or years. While incarcerated, he will likely be unable to acquire a lawyer, access family who might assist him, obtain key evidence, or contact witnesses. In these circumstances, he will nearly inevitably lose his deportation case and be banished abroad from work, family, and friends. The immigrant's one chance to escape these cascading events is the off-the-record Joseph hearing challenging detention. If he wins the hearing and is released, he can then secure counsel, and if so, will likely win his case. Yet detained and most likely pro se, he may not even know a Joseph hearing exists, let alone win it, given the complex statutory analysis involved, regarding facts, witnesses, and evidence outside his reach. The immigration detention system today is unique in modern American law, in providing for preventive pretrial detention without counsel pursuant to underlying proceedings without counsel - let alone proceedings so complex that result in a deprivation of liberty as severe as deportation. In this Article, I call this the cascading constitutional deprivation of wrongful detention and deportation. I argue, under modern procedural due process theories, that this cascading constitutional deprivation warrants appointed counsel, notwithstanding traditional plenary power over immigration laws. In a post-Padilla v. Kentucky world where criminal defenders must now advise their clients on the same issues litigated at the Joseph hearing, I argue a right to appointed counsel for mandatorily detained immigrants pending removal proceedings is constitutionally viable and practically feasible.

  • 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.