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Carceral Socialization as Voter Suppression
In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are powerful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples’ sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to participate in politics. Hence, the carceral system’s impact on political participation goes well beyond those who are formally disenfranchised due to convictions. It also suppresses participation among the millions of legally eligible voters who have not been formally disenfranchised—people who have had more fleeting encounters with law enforcement or vicarious interactions with the carceral system. This Article considers the implications of these findings from the perspective of voting rights law and the constitutional values underlying it. In a moment when voting rights are under siege, voting rights advocates are in a heated discussion about how our federal and state constitutions protect ideals of democratic citizenship and political equality. This discussion has largely (and for good reason) focused on how the law should address what I call “de jure” suppression: tangible election laws and policies that impose legal barriers to voting, or dilute voting power. Eliminating these formal barriers to voting is vital. But, I argue, fully realizing the constitutional values underlying voting rights will also require also addressing what I call “de facto” suppression, or suppression through socialization. This occurs not through formal legal restrictions on voting, but when state institutions like the carceral system systematically socialize citizens in a manner that is incompatible with democratic citizenship. I show how de facto suppression threatens the constitutional interests protected by the right to vote just like de jure suppression does. In short, by systematically socializing people in a manner that is fundamentally incompatible with democratic citizenship, the state can effectively strip a citizen of much of the instrumental and intrinsic value conferred by the right to vote. Those who are concerned about advancing and protecting voting rights should understand the carceral system’s anti-democratic socialization as a form of political suppression—one that should warrant constitutional scrutiny for the same reasons that de jure suppression should warrant scrutiny.Carceral Intent
For decades, scholars across disciplines have examined the stark injustice of American carceralism. Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate. These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement. This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and sweeping harms of America’s system of confinement. This Article begins by tracing the origins of American carceralism, focusing on the modern prison’s relationship to white supremacy and the post-Emancipation period in U.S. history. The Article then turns to the constitutional doctrine of incarceration, synthesizing and categorizing the law of carceral intent. Then, drawing upon critical race scholarship that examines anti-discrimination doctrine and the concept of “white innocence,” the Article compares the law’s reliance on carceral intent with the law’s reliance on discriminatory intent in equal protection jurisprudence. Critical race theorists have long critiqued the intent-focused antidiscrimination doctrine as incapable of remedying structural racism and inequities. The same can be said of the doctrine of incarceration. The law’s preoccupation with an alleged wrongdoer’s “bad intent” in challenges to the scope and conditions of incarceration makes it ill-suited to remedying the U.S. prison system’s profoundly unjust and harmful features. A curative approach, this Article asserts, is one in which the law focuses on carceral effect rather than carceral intent, as others have argued in the context of equal protection. While such an approach will not remedy the full scope of harms of U.S. incarceration, it would be a start.9/11 Impacts on Muslims in Prison
It is no understatement to say that September 11, 2001, is the most important date in the history of American Islam. From this day forth, Muslims would become a target for social wrath and become vilified like at no other time in American history. In one fell swoop, Muslims became the most feared and hated religious group in the country. While analysis of the impacts on Muslims tends to focus on Muslims outside of prison, it is critical to recognize that Muslims in prison were no exception to the post- 9/11 hostilities directed at Muslims. They experienced similarly heightened levels of Islamophobia and discrimination. The main goal of this essay is to consider the War on Terror in the prison context in the years following the events of 9/11. The work aims to assess how fear and anger seeped into prisons and became the means of repressing Muslims and casting them as a unique threat to national and institutional security. Although time has proved these attitudes unjustified and alarmist, they have taken a toll on those in prison and made life more difficult for individuals already existing in some of the harshest conditions in the country.Thirteenth Amendment Litigation in the Immigration Detention Context
This Article analyzes how the Thirteenth Amendment has been used to prevent forced labor practices in immigration detention. The Article assesses the effectiveness of Thirteenth Amendment litigation by dissecting cases where detainees have challenged the legality of labor requirements under the Trafficking Victims Protection Act. Given the expansion in immigration detention, the increasing privatization of detention, and the significant human rights implications of this issue, the arguments advanced in this Article are not only currently relevant but have the potential to shape ongoing dialogue on this subject.Asian Americans and Pacific Islanders and the Prison Industrial Complex
Recent uprisings against racial injustice, sparked by the killings of George Floyd and others, have triggered urgent calls to overhaul the U.S. criminal “justice” system. Yet Asian Americans and Pacific Islanders (AAPIs), the fastest-growing racial group in the country, have largely been left out of these conversations. Identifying and addressing this issue, I intercalate AAPIs into powerful, contemporary critiques of the prison industrial complex, including emergent abolitionist legal scholarship. I argue that the model minority myth, an anti-Black racial project, leads to the exclusion of AAPIs in mainstream and critical studies of crime and carcerality. I begin the intervention by critiquing the lacuna that exists within Asian American Jurisprudence, specifically the erasure of criminalized AAPIs’ voices and experiences. I then demonstrate that AAPIs are caught in the carceral web of mass incarceration by highlighting the lived experiences of AAPI youth within the school-to-prison pipeline, in addition to excavating the minimal publicly available data on AAPI prison populations. Adopting multidisciplinary and multimodal methods, I identify and analyze distinct forms of racial profiling and racialized bullying that drive AAPI students out of schools and into prisons. I pay specific attention to the criminalization of various AAPI youth subgroups as whiz kids, gang members, or terrorists. In uncovering previously unexamined dimensions of the criminal system, I stress how the exclusion of AAPIs in critical discourse obscures the actual scale of the carceral state, erases complex intra- and interracial dynamics of power, marginalizes criminalized AAPIs, and concurrently reinforces anti-Blackness and other toxic ideologies. The Article reaffirms critical race, intersectional, and abolitionist analyses of race and criminalization. It also directly links Asian American Jurisprudence to on-going abolitionist critiques of the prison industrial complex. I conclude with a proffer of abolitionist-informed solutions to the school-to-prison pipeline such as the implementation of an Ethnic Studies curriculum. Lastly, I issue a call, particularly to AAPI communities, for fiercer and more meaningful coalition-building.
Time for the Government to Show that it “CARES” about Individuals who are Incarcerated
By Emma RosenAssociate Editor, Vol. 26 “The IRS’s decision to exclude incarcerated persons from advance refund payments is likely contrary to law…. Plaintiffs have established they are likely to be irreparably injured without an injunction.”[i] Judge Hamilton, of the Northern District of California, gave hope to incarcerated…A Call for Standardizing Voting in Jails
By Clara ButlerAssociate Editor, Vol. 26 The 2020 election came down to slim margins in counties across the nation. Yet, over five million people in this country were unable to cast a ballot because of their involvement with the criminal justice system.[1] The Supreme Court has held that it…Jail By Another Name: ICE Detention of Immigrant Criminal Defendants on Pretrial Release
This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This Article agrees with and expands on this interpretation of the BRA. Focusing on the BRA’s plain text and legislative history, it argues that the BRA confers a “right to remain released” pending trial, which ICE detention infringes. It then debunks the leading counterarguments to this BRA interpretation. It also explores constitutional arguments for the right to remain released and their implications for federal and state criminal defendants.
What’s Safety Got To Do With It? Why We Shouldn’t Be Shackling Youths (or Anyone) in Michigan
By Melissa Almonte Associate Editor, Vol. 25 During my first seminar with the Juvenile Justice Clinic at the University of Michigan Law School, I learned that children are routinely shackled in juvenile proceedings in Michigan. My jaw dropped. I thought: but that’s only supposed to happen in criminal court!…
Chilling Effect: Brooklyn Detainees Bang on Prison Walls as Temperatures Drop
By Elizabeth Morales Associate Editor, Vol, 24 On the first day of February, as temperatures in East Coast dropped below-freezing, a video showing inmates banging on the walls and windows of their cells at a Brooklyn jail went viral. The inmates were trying to alert people on the outside that their building had been with little to no heat for six days. Their call for help was successful, and a sea of protestors quickly formed on the streets below. More videos of activists chanting “turn on the heat!” made the social media rounds bringing worldwide attention to the conditions inside the jail. The jail in question is the Metropolitan Detention Center (MDC Brooklyn). MDC Brooklyn is a pre-trial detention facility in Brooklyn, NY that houses more than 1,600 inmates at all security levels.[1] most of whom are awaiting trial or are there due to their inability to make bail.[2] Problems with the building’s heating system started on January 27th when an electrical fire broke out in the jail’s west building which houses only men.[3] The fire caused a partial power outage [4] and engaged the jail’s emergency power system.[5] There is dispute as to whether heat and hot water in the jail’s housing units was affected.[6] The jail’s warden, Herman Quay, responded to the public outcry stating via a spokeswoman that “[c]ells have heat and hot water, there is lighting in the common areas and inmates are receiving hot meals.”[7] Local public defenders and union leaders paint a different story.[8] They report receiving dozens of calls from inmates via a dedicated line inside the jail that directly connects the inmates with the federal defenders offices.[9] Inmates allegedly complained of frigid temperatures, ill health, pitch-black cells, and lack of access to essentials like extra blankets and additional sweaters.[10]