Civil Rights Archives - Princeton Legal Journal

Justice Until Death: The Necessity of Swift and Good-Faithed Capital Punishment

Justin Murdock

Abstract

There are two factions when it comes to the debate over capital punishment: one believes it is legitimate retribution for heinous criminal acts, while the other believes it is the epitome of archaic punishments which violate the principles of the Eighth Amendment. Capital punishment in the United States is limited to five main methods: lethal injection, electrocution, lethal gas, hanging, and firing squad. Lethal injection remains the most popular method of the death penalty. Consequently, in states that continue to employ lethal injection, cases of botched execution have long posed issues. One such example is the recent botched lethal injection of Kenneth Eugene Smith. I argue that given these instances of negligence in applications of capital punishment, more states should use newly-available alternative methods, such as nitrogen hypoxia, when administering capital punishment.

Background

The case study of focus sparked one of the greatest, most drawn-out legal fights pertaining to capital punishment. Kenneth Eugene Smith was convicted of murder in 1989 by a jury vote of 10-2 and sentenced to death row for grotesquely killing Elizabeth Dorlene Sennett in a murder for hire. Smith appealed his case for a retrial through Kenneth Eugene Smith v. State (2000), which resulted in a jury vote of 11-1 to sentence him to life without parole. However, the judge invoked §13A-5-47(e) of the 1975 Alabama Code, which allowed him to overrule the jury’s recommendation, and sentenced Smith to death. In 2017, however, Alabama introduced a statute to abolish the ability for judges to override a jury’s decision. Nevertheless, the law was not retroactive, so when Smith appealed to the Federal Supreme Court, he was denied review.

Smith argued in the same appeal that the Alabama Department of Corrections violated his due process rights under the Fourteenth Amendment since he was not accordingly notified of a nitrogen hypoxia alternative when made available in 2018 in Alabama. Following his final unsuccessful objection to his capital sentence, Smith later had his execution administered. Smith was strapped into a gurney and not fully anesthetized, resulting in the jabs in his limbs and groin feelings “like a knife”. This execution was administered quite late, and since the death warrant restriction expired at midnight, the process had to be called off. Smith’s failed execution is just another piece in Alabama’s history of botched executions: the state also botched the executions of Alan Miller and Doyle Lee Ham, with officers sleeping on their jobs and the inmates suffering from delays and chemical burns resulting from improper injections. All these cases have been united in their application of the Eighth Amendment based on their grotesque execution.

The final court decision in Smith’s case accords with the national precedent on capital punishment but opens interesting nuances to the penal issue. The reigning District Judge R. Austin Huffaker Jr. dismissed the appeal, stating that the violations alleged against the Alabama Department of Corrections (ADOC) should not pose a constitutional issue according to the Eighth Amendment—specifically its prohibition on “cruel and unusual punishment.” Past plaintiffs such as Miller and Ham have also cited a violation according to the Eighth Amendment, showing that based on precedent, the negligence of ADOC raises the question of constitutionality of the method of capital punishment rather than the practice of capital punishment itself. Essentially, the intended punishment inherently is not deemed a constitutional violation, but the actual application raises questions into the viability of the action.

Given the facts of Smith’s case and prior cases demonstrating consistent problems of negligence and inefficiency, this article brings two claims about the motive behind capital punishment and the future regarding lethal injection practices. To clarify, this article is not intended to discuss the merits of the death penalty as a whole. This concept has been disputed many times in court, often siding with its federal legality, so arguing against it in this piece would be futile. Instead, this article breaks apart specific kinds of capital punishment. In particular, the death penalty should be administered both swiftly and in good faith. If the accessory pain associated with the method of capital punishment goes beyond and impairs the ability to administer a swift execution, it could rise to cruel and unusual punishment. Since lethal injections are prone to failures that can lead to violations of the Eighth Amendment, courts should instead open viable, convenient alternatives such as exploring the safer nitrogen hypoxia execution method to accomplish the motives of the death penalty.

Legal Bases

Two parts of two amendments are fundamental to determining the legality of the punishments Smith, and others like him, suffered: the Eighth Amendment’s prohibition on “cruel and unusual punishment” and the Fourteenth Amendment’s prohibition on the abridgement of “due process.” Especially when alternatives are available but not fully delineated to the defendant, like Smith, the Fourteenth Amendment is crucial in piecing together the defendant’s rights against government punishment. If the purpose of these amendments is to protect minorities and the vulnerable by ensuring equal rights for all, any mishandled implementation of this measure could be viewed as the government exceeding its due authority to administer fair punishment. Therefore, this shows that the administration of botched lethal injection procedures, at least by the ADOC, should search for viable alternatives to avoid remaining within the bounds of the Eighth and Fourteenth Amendments.

While justices have typically sided with the government in capital punishment cases, key insights have nevertheless been shed about the merits of certain procedures, such as Smith’s botched lethal injection. For instance, in a 7-2 decision in Baze v. Rees (2008), the Supreme Court addressed the constitutionality of a four-drug lethal injection. While the Court concluded that the lethal injection as a concept did not violate the Eighth Amendment, members of the Court suggested that if states consistently utilize methods without sufficient justification compared with better alternatives, that may amount to cruel and unusual punishment. Additionally, Bucklew v. Precythe (2018), decided 5-4, involved an appeal in which Bucklew argued that his pre-existing medical condition of blood-filled tumors subjected him to excessive pain when receiving a lethal injection, culminating in “cruel and unusual punishment.” Again, the Court did not find the death penalty to amount to an unconstitutional punishment. However, Justice Gorsuch’s remarks do hint at this article’s claims of swift and good-faithed execution practices. Saying that the punishment should not provide “superadd[ed] . . . terror, pain, or disgrace,” he wrote that the death penalty should ideally be quick, but is not guaranteed to be entirely pleasant or easy. While there will undoubtedly be some degree of pain associated with the highest level of punishment there is in the country, inmates do still have rights that are supposed to prevent the administration of that punishment from being unnecessarily painful. ADOC’s negligence, however, caused it to infringe upon these rights.

Conclusions

Given the history of repeated botches and potential alternatives, insights from concurring and dissenting opinions should be kept in mind when witnessing this persistent negligence in capital punishment. If developments in nitrogen hypoxia make it a reasonable alternative, like in Alabama in 2018, defendants should be informed of such rights. Even if this novel practice has just surfaced in the realm of capital punishment, it should still be explicitly available if the state deems it to be safe. Even if nitrogen hypoxia is not safe according to other states’ laws, it is still abundantly clear that the ADOC failed its procedure and demonstrated incapability in administering lethal injection. If states still stalwart this process and refuse to provide viable alternatives, as even Supreme Court justices have opined, states will unfortunately continue to find themselves in a flurry of contested Eighth and Fourteenth Amendment violations.

Electronic Surveillance, the Fourth Amendment, and the NYPD’s “Muslim Surveillance Program”

Annie Akbar

In a letter to James Madison after the French Revolution had begun, Thomas Jefferson wrote, “The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.” Here, Jefferson is advocating for a periodic revision of the Constitution, one in which the citizenry rethinks its guiding document in light of the circumstances of a new era. When comparing our age to that of our Founding Fathers, it is not difficult to understand Jefferson’s sentiment. The advancement of our society, especially in terms of technology, has significantly affected the ways in which civil rights (and their infringement) appear. This is especially true when examining electronic surveillance and its implications for Americans’ constitutional liberties. For example, in Hassan v. City of New York (2015), the United States Court of Appeals for the Third Circuit held that, under the First and Fourteenth Amendments, the New York City Police Department’s “Muslim Surveillance Program,” in which electronic surveillance was used to “infiltrate and monitor Muslim life in and around New York City,” was unlawful. While this decision undoubtedly finds legitimacy in the aforementioned amendments, I contend that applying a modern interpretation of the Fourth Amendment—one rooted in “living constitutionalism,” or the idea that “constitutional law can and should evolve in response to changing circumstances and values”—can also prove the program’s illegality.

In Hassan v. City of New York (2015), lead plaintiff Syed Faraj Hassan and others associated with Islam testified that, since January 2002, the New York City Police Department (NYPD) used what was informally known as the “Muslim Surveillance Program” (also called “the Program”) to monitor the lives of Muslims and their businesses, mosques, organizations, and schools in New York City and neighboring cities and states. The Court of Appeals found that the plaintiffs—“persons associated with Islam who claimed to be targets of police surveillance program”—had standing to sue in federal court to “vindicate their religious-liberty and equal-protection rights” and that their claims were justified under the First and Fourteenth Amendments. It is clear why the Program, which “targeted Muslim American communities in New York, New Jersey, and beyond,” would violate the First and Fourteenth Amendments. However, employing the Fourth Amendment to assess the Program’s “sprawling and secretive human mapping and suspicionless surveillance program” may provide an additional legal foundation for the decision.

The Fourth Amendment affirms that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In short, the Fourth Amendment outlaws unreasonable searches and seizures. The NYPD’s participation in the Program, though, constitutes an unreasonable search and seizure of data on Muslims in the greater New York area via electronic surveillance.

The plaintiffs in Hassan argued that the NYPD monitored Muslims in several ways, such as by taking pictures, shooting videos, and gathering license plate information of mosque attendees. Officers also pointed surveillance cameras at mosques, which they could then control remotely. Furthermore, the plaintiffs asserted that the NYPD would send undercover cops into mosques, student organizations, businesses, and neighborhoods that it characterized as “heavily Muslim” to listen in on sermons and conversations before reporting back to their department. These surveillance methods were not solely concentrated in New York City—they extended into New Jersey, Connecticut, Pennsylvania, and other areas of New York state. In addition, the NYPD collected information on the locations of religious schools, the religious affiliations of certain public establishments, the number of businesses operated or visited by Muslims, and the names of people involved with Muslim Student Associations (MSAs) in the area. The NYPD also “compile[d] databases of new Muslim converts who [took] Arabic names, as well as Muslims [who took] names that [were] perceived to be ‘Western.’”

The plaintiffs declared that the intelligence gathered by the NYPD through the Program was compiled into many reports. Such reports included information on Newark’s Muslim population, over 20 precinct maps of Newark showing the locations of mosques and Muslim businesses and the ethnic composition of the Muslim population, and “analytical report[s] on every mosque within 100 miles of New York City.”

From this, it is obvious that the NYPD’s program was meant to target Muslims and their daily activities, indicating religious discrimination that the Court of Appeals affirmed in its ruling. However, I assert that the Program’s electronic surveillance to collect an expansive collection of data by itself is sufficient to warrant a contravention of the Fourth Amendment.

Regarding the Fourth Amendment, the Court of Appeals utilizes Justice Scalia’s point in Whren v. United States (1996) about selective enforcement of the law: “[T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.” While I agree with the appellate court’s reasoning, I believe that the Program’s methods of collecting people’s information, regardless of their religion, can be considered a Fourth Amendment infraction.

But first, does electronic surveillance even fall under the jurisdiction of the Fourth Amendment? In Katz v. U.S. (1967), a case involving electronic surveillance, the Supreme Court held that the Fourth Amendment protects “any place where an individual maintains a reasonable expectation of privacy.” In his concurring opinion, Justice Harlan stated that “a person has a legitimate expectation of privacy if he honestly and genuinely believes the location under surveillance is private.” Due to the separation of church and state found in the Constitution, places of worship are commonly regarded as private institutions—institutions in which a person “has a reasonable expectation of privacy.” Under this ruling, the Fourth Amendment prohibits unreasonable searches and seizures involving data collection through electronic surveillance—precisely the sort of search and seizure in which the NYPD engaged.

Now that this has been established, I will use the Fourth Amendment to provide further support for the decision in Hassan. According to the federal courts, the Fourth Amendment prohibits unreasonable searches and seizures by the government (and government agencies like police departments), but only those that are perceived as unreasonable from a legal standpoint. This is referred to as the reasonability requirement. Judges are to consider the main factors when determining whether or not a search was reasonable: the search’s infringement on a person’s Fourth Amendment rights and compelling interests that may allow for such an infringement. For an interest to be compelling, the government must use the “strict scrutiny test” to show that the interest is “important enough that it justifies infringing on a fundamental right, and [that its] infringement on rights is done in ‘the least restrictive’ or most careful way possible.” However, in Hassan, the Court of Appeals held that the “municipality’s assurance that police surveillance was justified by national-security and public-safety concerns did not satisfy its burden of producing evidence to overcome heightened scrutiny’s presumption of violation of equal protection.” Because the NYPD failed to prove that electronically surveilling Muslims was a compelling interest, the “Muslim Surveillance Program” fails to fulfill the reasonability requirement. Moreover, “least restrictive means” refers to a method that places “the least possible restriction on personal liberty and the exercise of rights.” While public safety and thus crime prevention are certainly compelling interests, the NYPD’s surveillance program is clearly not the least restrictive means possible to achieve its desired ends. This is due to its surveillance of basically all Muslims in the greater New York area, rather than just those on watchlists or things of that nature.

Though Fourth Amendment jurisprudence is beginning to incorporate electronic surveillance threats to privacy, an obstacle to this development may arise from originalists who disagree with applying the Fourth Amendment to this issue. These individuals proclaim that the “original meaning of search seems to be the ordinary meaning at the time [of the Fourth Amendment’s adoption] of ‘looking over or through’ or ‘examining by inspection’” and that an unreasonable search is only one that “violate[s] the common law rules for searches at the time of the Fourth Amendment.” However, taking into account the privacy and “search and seizures” problems that are related to electronic surveillance is crucial to upholding the protections of the Fourth Amendment. According to the Brennan Center for Justice, as cell phones, watches, cars, and other electronic devices become “smarter,” they “create detailed records about our private lives, potentially revealing not only where we have been but also our political viewpoints, consumer preferences, people with whom we have interacted, and more.” This information can be used by “law enforcement for use in investigations and prosecutions, and much of it is currently available without a warrant.” Thus, establishing legal limits to such electronic collection of data is a worthwhile endeavor to maintain the sanctity of our rights.

The idea of electronic surveillance and its potential infringement of people’s Fourth Amendment rights is one that warrants attention because, as technology continues to progress in terms of its abilities, so will the means by which data is collected. Without implementing proper legal restrictions on the use of data collection, the privacy of American citizens under the Fourth Amendment may be in danger.

The Economic Impact of Prison Labor for Incarcerated Individuals and Taxpayers

Sarah Payne

Introduction

The United States’ prison population is currently the second highest globally, falling closely behind China at just over 1.5 million individuals incarcerated.^[1] This means the United States accounts for approximately 25% of the world’s prison population, despite accounting for just 5% of the world’s population overall.^[2] Furthermore, the average cost of incarceration in the United States of America sits at approximately $80 billion per year for the taxpayer,^[3] while corporations within the private prison industry are estimated to bring in an estimated $374 million annually.^[4] Given the disproportionate number of incarcerated individuals in the United States of America, the private prison industry is opportunely positioned to make a profit from cheap prison labor. The labor, however, is exploitative not only to incarcerated individuals, but also to taxpayers. At play within this legal situation is the profit of corporations complicit in the prison industry, the well-being of incarcerated individuals, and the financial implications for the taxpayer. This paper offers an alternative approach to the carceral system that deprioritizes corporate profit margins to better prioritize the incarcerated community and taxpayers.

History and Previous Cases

While the Thirteenth Amendment outlawed slavery in United States, it did not eliminate the possibility of slavery does persist as a form of punishment for convicted criminals.^[5][1] Thus, despite the Thirteenth Amendment, slavery has since remained in the United States of America, in a roundabout fashion. Not only does the Thirteenth Amendment enable prison labor, but the Fair Labor Standards Act (FLSA) also enables prison labor through its definitions of ‘employees’ and ‘employers.’

In 1996, during Burleson v. the State of California, prison inmates attempted to receive federal minimum wage back-pay for work that took place within a California prison. At the conclusion of this case, the inmates did not receive the minimum wage compensation they sought, as they were not technically employees of the state according to the FLSA.^[6] To fall under the definition of “employee,” individuals must pass the economic reality test, a legal test designed to determine the status of someone’s employee-employer relationship. More specifically, an employee, under the definition of the economic reality test, is someone who “follows the usual path of an employee and is dependent upon the business which he or she serves.”^[7] Because this prison labor is penological rather than pecuniary, these incarcerated individuals did not pass the economic reality test.^[8]

In 1992, incarcerated individuals in an Arizona state prison also sought to recover minimum wages from a plasma treatment center, which held a contract with the State Department of Corrections. The inmates failed to receive minimum wage retribution as the court this time held that neither the plasma treatment center nor the Department of Corrections fell within the Fair Labor and Standards Act’s definition of an ‘employer,’ which is defined as, “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency but does not include any labor organization or anyone acting in the capacity of officer or agent of such labor organization.”^[9]

Understanding the Economic Implications

The nature of prison labor varies from institution to institution. For example, the California Penal Code requires, “of every able-bodied prisoner imprisoned in any state prison [to perform] as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Director of Corrections.”^[10] One firsthand account from a women’s prison details an eight-hour day participating in manual labor outside, without ample water sources or sunscreen.^[11] Another formerly incarcerated individual, Dominique Morgan, recounts his experience working as a chef while incarcerated. His workday would start at 4 am during breakfast hour, and he would work through dinner time at his facility. He made $2.25 per day and did not receive sick days, despite being diagnosed with HIV.^[12]

While subject to prison labor, incarcerated individuals within private prisons who do happen to receive pay are also subject to fees deductible from their wages. These fees include, but are not limited to, fees for room and board and other miscellaneous fees to offset the cost of incarceration. What is remarkable, however, is the fact that these fees are not a substitute for the federal funding these prisons receive. Rather, the private prisons can collect these fees in conjunction with federal funding from taxpayers.^[13] These institutions are not only exploiting incarcerated individuals as laborers; they are also pocketing money from taxpayers. This double-dipping of resources ultimately creates a profit for the private prison industry at the expense of citizens and incarcerated individuals.

In addition to these circumstances, private companies are also encouraged to utilize incarcerated individuals as laborers via tax credit.^[14] The Work Opportunity Tax Credit (WOTC) is a tax credit for employers for hiring individuals of certain demographics, such as veterans, summer youth employees, and long-term unemployment recipients; also included within the WOTC are felons.^[15] Thus, this legislation not only allows corporations to exploit incarcerated individuals with little to no wages but also incentivizes the usage of prison labor by providing tax credits to companies for using such labor. Yet again, this double-dipping of resources further increases profit margins for private prisons and corporations at the expense of exploited workers and taxpayers.

Given these two presented methods of financial profit, it is evident the exploitation of incarcerated individuals not only impacts these workers directly, but it also displaces taxpayer dollars into the hands of corporations through subtle schemes. While the exploitation of the incarcerated workers here is rather blatant, the negative impacts on the taxpayer are much more subtle[2] . Private prisons, as previously mentioned, are able to receive federal funding, which ultimately is derived from taxes. It is possible that this federal funding may be derived from the creation of new dollars within the United States; however, this production and distribution of money would still create the unintended consequence of inflation for the average citizen. Regardless, the structure of the private prison system demands a constantly laboring incarcerated population, which cannot exist without the financial support of facilities. Private companies utilizing prison labor benefit from WOTC, cheap labor, and federal funding. Incarcerated individuals within this system continuously labor; they do not receive the chance to rehabilitate or receive education, processes that are later illustrated in this paper as crucial to reducing recidivism[3] . Thus, the legal structures surrounding prison labor not only allow the demand for prison labor but also perpetuate recidivism. The taxpayer, within this system, is left indirectly funding this cycle of exploitation by nature of the prisons receiving federal funding.

Legal Argument

To address the economic concerns of the situation at hand, a three-pronged approach is presented. First, this approach uses different definitions of “employee” and “employer” than the FLSA to ensure the fair pay and treatment of working incarcerated individuals. Second, the approach disincentivizes the double-dipping behavior of corporations to partially alleviate the financial burden the current carceral system places on taxpayers. Lastly, the approach calls for the replacing of prison labor with educational opportunities that will subsequently reduce the rate of recidivism and thereby further alleviate the cost of incarceration placed upon taxpayers.

Definitions

Redefining “employee” and “employer” to comprehensively include incarcerated individuals working for corporations while in federal and private prisons is the most direct approach to addressing the economic implications of cheap prison labor. Currently, the Fair Labor Standards Act encompasses niche demographics such as child laborers, agricultural workers, service members, and politicians;^[16] however, it fails to directly encompass the demographic of incarcerated individuals. This exclusion of the prison population in the Fair Labor Standards Act is detrimental to the well-being of incarcerated individuals and taxpayers, as it facilitates the exploitation of those incarcerated. Without this comprehensive redefinition of employee and employer, there remains an incentive for mass incarceration for corporations, lobbyists, and politicians.^[17] The burden upon the taxpayer is an unintended consequence of this incentivized mass incarceration, as the carceral system, from the court system to county jails to state penitentiaries, is ultimately funded by taxes. Enforcing a minimum wage by defining prisoners as employees will lessen the appeal of prison labor for corporations as a profit-increasing tactic. This, in turn, will subsequently lessen the annual cost of incarceration that falls upon the taxpayer.

Disincentivizing Double-Dipping of Resources for Corporations to Better Prioritize a Reduction in Recidivism and Taxpayer Alleviation

It is also necessary to eliminate the ability of corporations to receive a tax credit for utilizing prison labor under the Work Opportunity Tax Credit legislation. The incentivization of this labor use 1) perpetuates the economic demand for constant availability of a prison workforce, funded by taxpayers, 2) comes at the cost of taxpayers, and 3) disincentivizes providing rehabilitation programs for incarcerated individuals before reentry into American society. These education programs may have otherwise replaced the time demand of prison labor, and research suggests they reduce recidivism.^[18] For example, one study proactive prison education significantly reduces the long-term costs of recidivism.^[19] The reinforcement of the financial benefits to corporations via prison labor not only constantly demands the presence of a prison population, but it also is directly funded by taxpayers via the WOTC. Furthermore, in a long-term model, using the prison population as laborers inhibits any sense of rehabilitation for said individuals.

Limiting a private prison’s ability to charge incarcerated individuals fees for expenses taxpayers already pay for has the potential to limit the profit margins that make prison labor preferable for corporations. Furthermore, if incarcerated workers are genuinely presented with the opportunity to establish savings, their ability to establish themselves upon reentry into society may increase. This will, in turn, reduce the likelihood of poverty-related crimes that contribute to recidivism. Research suggests there is a strong correlation between poverty and incarceration. One study illustrates how men in the bottom ten percent of the United States’ income distribution are twenty times more likely to be incarcerated between the age of thirty and forty than those in the top decile.^[20] Perhaps a more concerning revelation within this research, however, is the fact that within one year of release from prison, fewer than 20% of formerly incarcerated individuals earn more than $15,000.^[21] As a result, formerly incarcerated individuals are extremely at risk of poverty-related recidivism immediately following their reintegration into society. Overall, without the ability to receive both rehabilitative education and accrue savings, research suggests rates of recidivism starkly increase, posing another long-term financial burden upon the taxpayer yet again.

Education

Research illustrates that recidivism decreases as education increases, and among prison populations, those with no GED are the most likely to become incarcerated more than once.^[22] Furthermore, 19% of adult inmates are completely illiterate and 40% are functionally illiterate.^[23] Prioritizing literacy and a GED education for incarcerated individuals will better rehabilitate them for the demands of society upon reentry and better situate them to later secure jobs. Together, these improvements will help lower rates of recidivism. A study by RAND suggests that for every $1 spent on prison education, $4-5 of recidivism costs are saved in the initial three years after release from prison.^[24] Currently, there is a grant program established to facilitate education methods in the carceral system.^[25] Refining this grant program to prioritize the most at-risk demographics in the carceral system, those who are illiterate and without a GED, can decrease the population of the carceral system in future years. This refinement is a long-term investment that requires incarcerated individuals to forego labor[4] , but research does offer optimistic results.

Pros and Cons

The most immediate threat these law reforms pose is one to the profit margins of corporations. As these profit margins decrease, there is a possibility that this prison labor is simply outsourced to other countries by corporations for a similarly low price. Thus, labor exploitation would simply shift from the exploitation of the United States’ incarcerated population to the exploitation of foreign workers. While this outcome is not necessarily desirable, the burden placed upon the taxpayer would remain relieved. Additionally, the timeframe of the legislative changes is also a possible pitfall. Although the long-term results are worthwhile, restructuring labor within the carceral system is sure to take years. Furthermore, implementing the proposed educational reforms to reduce rates of recidivism will also take years and come with an initial price tag. However, lower rates of crime after reentry into society and reduced prison populations associated with a decline in recidivism will later offset these initial investments.

Conclusion

Given the financial appeals of prison labor, it is no surprise corporations have taken full advantage of this possible asset. However, the multimillion-dollar annual profit of the prison industry comes at the cost of the exploitation of incarcerated individuals and taxpayers. Redefining incarcerated individuals as employees in an employee-employer relationship, disincentivizing prison labor for corporations, and prioritizing education within the carceral system can address these concerns. While incarcerated individuals are often referred to as forgotten members of society, their incarceration and exploitation continue to have an impact upon all of society.

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[1] “Prison Population Total,” Prison Studies (World Prison Brief), accessed December 8, 2022, https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All.

[2] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[3] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[4] Peter Wagner and Bernadette Rabuy, “Following the Money of Mass Incarceration,” Prison Policy (Prison Policy Initiative, January 25, 2017), https://www.prisonpolicy.org/reports/money.html.

[5] U.S.C.A. Const. Amend. XIII, § 1, USCA CONST Amend. XIII, § 1

[6] Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

[7] “Employment Relationship Under the Fair Labor Standards Act,” United States Department of Labor (Wage and Hour Division United States Department of Labor, March 2022), https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship#:~:text=An%20employment%20relationship%20under%20the,be%20subject%20to%20the%20Act.

[8] Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

[9] Gilbreath v. Cutter Biological, Inc. 931 F.2d 1320 (9th Cir. 1991).

[10] West’s Ann. Cal. Penal Code § 2700, CA PENAL § 2700.

[11] Simon McCormack, “Prison Labor Booms Despite High Unemployment” (HuffPost, December 10, 2012), https://www.huffpost.com/entry/prison-labor_n_2272036.

[12] “The Uncounted Workforce,” The Indicator From Planet Money (National Public Radio, June 29, 2020), https://www.npr.org/2020/06/29/884989263/the-uncounted-workforce.

[13] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[14] “Work Opportunity Tax Credit,” Internal Revenue Service (Internal Revenue Service), accessed December 8, 2022, https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit.

[15] “Work Opportunity Tax Credit,” Internal Revenue Service (Internal Revenue Service), accessed December 8, 2022, https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit.

[16] 29 U.S.C.A. § 203, 29 USCA § 203 29 U.S.C.A. § 203 (West) § (2018).

[17] Bob Sloan and Mike Elk, “The Hidden History of Alec and Prison Labor,” The Nation (The Nation, June 29, 2015), https://www.thenation.com/article/archive/hidden-history-alec-and-prison-labor/.

[18] Center on Crime, “Education as Crime Prevention: Providing Education to Prisoners,” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

[19] “Public Policy Impacts of Rand’s Correctional Education Research,” RAND (RAND Social and Economic Well-Being), https://www.rand.org/well-being/justice-policy/portfolios/correctional-education/policy-impact.html.

[20] Adam Looney and Nicholas Turner, “Work and Opportunity Before and After Incarceration,” Economic Studies at Brookings, March 2018.

[21] Adam Looney and Nicholas Turner, “Work and Opportunity Before and After Incarceration,” Economic Studies at Brookings, March 2018.

[22] Cindy Hendricks, James E. Hendricks, and Susie Kauffman, “Literacy, Criminal Activity, and Recidivism.”

[23] Center on Crime, “Education as Crime Prevention: Providing Education to Prisoners,” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

[24] “Public Policy Impacts of Rand’s Correctional Education Research,” RAND (RAND Social and Economic Well-Being), https://www.rand.org/well-being/justice-policy/portfolios/correctional-education/policy-impact.html.

[25] 34 U.S.C.A. § 10741, 34 USCA § 10741 34 U.S.C.A. § 10741 (West) § (2018).

The Implications of New Title IX Regulations for Institutions of Higher Education

Anna Shin ’24

The establishment of Title IX, which prohibits sex-based discrimination in schools that receive federal funding, has protected students for nearly five decades by holding educational institutions accountable for cases of sexual discrimination. Notably, Title IX has played a significant role in equity in athletics, sexual harassment and violence, and protections for transgender students.

But while this law’s foundation was built on sex equality, the specific nuances of Title IX policies have varied among the presidential administrations, most recently the Trump administration. On May 14, 2020, the ACLU and law firm Stroock & Stroock & Lavan LLP filed a lawsuit against Former Secretary of Education Betsy DeVos on behalf of four activist groups: Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools (Know Your IX v. DeVos). The lawsuit was in response to new revisions released on May 6th to existing Title IX policies (otherwise known as the “Final Rule”) for sexual harassment on college campuses set forth by the DoE. The ACLU and Stroock & Stroock & Lavan LLP have argued that colleges and universities conduct sexual misconduct cases from a higher standard than reports of discrimination based on race, national origin, disability, etc. Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, called the new rule a “double standard that is devastating for survivors of sexual harassment and assault, who are overwhelmingly women and girls.” But Secretary DeVos has stated that the new regulations will secure due process rights for both the accused and the accuser, claiming that the 2020 revisions will allow Title IX officials at colleges and universities to use either a preponderance of of the evidence or a “clear and convincing standard” to prove sexual harassment claims, thereby setting a higher burden of proof. This contrasts from the policy of the Obama administration (2011), which used a “preponderance of evidence” to determine guilt in sexual misconduct claims. This consequently led to many college males filing civil lawsuits based on the claim that they were being unjustly accused of sexual harassment.

There are several issues the ACLU claims violates the due process of sexual violence victims. Firstly, they claim that the Final Rule redefines “sexual harassment” into three distinct traits: to be “so severe, pervasive, and objectively offensive” that it denies the person equal access to educational opportunities. This arguably narrows the scope for sexual misconduct claims, because the complaint must meet all three conditions for sexual harassment to be even be applicable. The previous definition used “or” in place of “and.” Secondly, any allegations or reports of sexual misconduct can be tossed and not investigated if not reported to the “right” person, or the individual formally in charge of all Title IX-related issues. Thirdly, the alleged sexual misconduct “must have taken place during a school-sanctioned activity, building, or event in which the institution has ‘substantial control.’” This disregards locations such as off-campus apartments, study abroad programs, and field trips, all of which should still fall under the school’s jurisdiction. Fourthly, it installs a “quasi-judicial system” that allows the cross-examination of both parties, which can further retraumatize victims and discourage them from coming forward about the misconduct. Finally, the current COVID-19 pandemic has heavily impacted universities’ budgets and systems, making it difficult for them to adhere to the DoE’s August deadline to implement these revisions.

On October 20, 2020, U.S. District Court Judge Richard Bennett dismissed the case on the basis that Know Your IX was unable to prove that the Final Rule was directly reducing reports of sexual misconduct, and that it was creating more work for the organization. Other reasons discussed how the claim was arbitrary and “speculative.” Similar cases such as Women’s Student Union v. U.S. Department of Education, which made a congruent argument to the Know Your IX case except for high school students, are still ongoing. So far, none of the lawsuits filed against the Final Rule have been successful. So what does this entail for the future of the Final Rule in universities? The answer is still quite unclear, largely due to the fact that it is relatively new. Most colleges have yet to fully recover from the impacts of the COVID-19 pandemic, both financially and systematically, making it difficult to assess the true consequences of the rule. But Know Your IX and the ACLU have a promising argument — by creating blockades in sexual misconduct reporting and scope, especially during a time where almost everything was conducted within a virtual space, the Final Rule could not have come at a worse time for sexual misconduct claims to go unnoticed or ignored. Universities must continue to stay vigilant on how the implementation of the Final Rule is impacting their prosecution of sexual misconduct cases. Know Your IX v. DeVos, while in itself may not have been successful, is the necessary, groundbreaking case for future lawsuits that will continue to challenge the due process of the Final Rule.

Asian American Lawyers: Then and Now

by Rebecca Cao

Introduction

Conversations about Asian Americans have only just captured national attention as anti-Asian hate crimes have escalated amidst the COVID-19 pandemic. Within the past two years, numerous discussions about Asian American identity, stereotypes of Asians, and America’s egregious history of exclusion against Asian Americans have surfaced, and, most recently in July 2021, Illinois became the first state to require the teaching of Asian American history in public school classrooms. As an aspiring lawyer who has paid attention to and often participated in such discourse, I have especially wanted to learn more about Asian American lawyers, who I believe can further enrich and complicate our understanding of Asian Americans overall. In what context did the first Asian American lawyers emerge? Who were some of the most prominent Asian American lawyers in the past, and how have they shaped American law? What are the unique obstacles that Asian American lawyers endure today? These are just some of the questions that have long interested me, and I will attempt to answer them in this article.

While I have discovered a few sources that already examine these issues (which will be referenced later), this article will aim to provide a more cohesive narrative demonstrating the overall journey of Asian American lawyers from the 1880s to modern years. Its purpose is twofold: to briefly trace the emergence of Asian American lawyers throughout American history, and to illuminate the present conditions and challenges of Asian American lawyers today. To be clear, it is beyond the scope of this article to be comprehensive; it does not attempt to identify every single Asian American lawyer in Asian American history, and neither will it attempt to explicate every event or idea relevant to this topic. Instead, it will focus on what appears to be the most salient, recurring themes that characterize the Asian American experience in the legal field. More information about Asian American lawyers will likely be unearthed in later years, but I hope that this article will inspire more conversations about their impact and struggles in the meantime.

Asian American Lawyers Throughout American History

The first Chinese American licensed to practice law in the U.S. was Hong Yen Chang, born in Guangdong, China, who immigrated to America in 1872 as one of the 120 Chinese boys sent to study in the U.S. through the Chinese Educational Mission. Chang had arrived during a time of escalating anti-Chinese sentiment in America. One reason for such racial hostility included claims that the Chinese were inherently inferior, as demonstrated in the California Supreme Court’s 1854 ruling in People vs. Hall where Chief Justice John Murray wrote that the Chinese were “incapable of progress or intellectual development beyond a certain point, as history has shown.” As the number of Chinese immigrants working in America’s gold mines, factories, and agriculture grew, allegations from other laborers in America’s economy that the Chinese posed an economic threat further exacerbated racial tensions. Pressured by such xenophobia pervading the nation, the government eventually passed the Chinese Exclusion Act of 1882, which suspended skilled and unskilled Chinese laborers in mining from immigrating to the U.S. for ten years (and it would eventually be extended for another 10 years by the 1892 Geary Act, which also required all Chinese living in the U.S. to carry identification papers—which many observed were similar to “dog tags”—at all times or suffer deportation). When Chang sought admission to the New York State Bar Association, the state’s Supreme Court rejected him since the Exclusion Act barred him from U.S. citizenship. But after Chang pressured the Association for two years, they eventually issued him a naturalization certificate and allowed him to reapply to the bar again. He was admitted in 1887. However, Chang was not as fortunate when he later moved to California, where the state’s Supreme Court deemed that his naturalization certificate from New York was invalid and thus rejected him from the bar. Chang was never allowed to practice law in California, although thanks to petitions from groups of law school students such as the Asian Pacific American Law Students Association, he was posthumously granted admission to the state’s Bar Association 130 years later in 2015. The first Chinese American lawyer in California wouldn’t emerge until nearly four decades after the Court’s decision in Chang’s case, when You Chung Hong, a son of Chinese immigrants, passed the state’s bar in 1923. He worked to repeal the Chinese Exclusion Act of 1882 that had obstructed Chang’s admission to the bar, testified in the U.S. Senate on immigration laws, and in 1933, became the first Chinese American permitted to practice before the Supreme Court.

Alongside the Chinese Exclusion Act, the government also passed legislation thwarting South Asians from entering the U.S during this time. In 1917, the U.S. banned immigration from the entire Indian subcontinent through the Barred Zone Act. In the 1923 case, U.S. v. Bhagat Singh Thind, the Supreme Court ruled that Southeast Asians were ineligible for naturalization. An immigrant from Punjab, India, Dalip Singh Saund campaigned against these discriminatory policies. His efforts eventually resulted in Congress passing the Luce-Celler Act of 1946, which permitted more South Asians to immigrate to the U.S. and become U.S. citizens. After becoming a naturalized U.S. citizen in 1949, Saund was elected to Congress in the House of Representatives—and re-elected twice—thus becoming the first Asian American, Indian American, and first Sikh American to do so.

More Asian American lawyers emerged during and shortly after the U.S.’ participation in World War II. For example, Minoru Yasui, a Japanese American lawyer, established a practice in Portland to help Japanese Americans affected by Executive Order 9066, by which President Franklin Delano Roosevelt authorized the internment of Japanese Americans and noncitizens from Japan. Yasui also refused to evacuate to an internment camp and was consequently sentenced to a year in prison. When he was released in 1944, he practiced law in Colorado, where he advocated for the Japanese community in America to receive reparations. During this time, Fred Korematsu, a son of Japanese immigrants, was arrested for resisting his displacement to an internment camp; this incident would eventually result in Korematsu vs. U.S. (1944), where the Supreme Court upheld Executive Order 9066—but nearly four decades later in 1983, Dale Minami, an Asian American lawyer, would reopen and help overturn this decision.

Furthermore, although they are often overlooked, Asian American lawyers directly served in America’s war efforts. Herbert Choy, a graduate of Harvard Law School, served in the U.S. Army Judge Advocate General’s Corps (from 1942-1946), which “represents the legal interests of soldiers and the U.S. Army,” according to the U.S. Army Judge Advocate General’s Corps brochure. When he returned to America, he became the first Korean American in the United States admitted to the bar. Another Asian American graduate of Harvard Law School, Hiram Fong, served as Judge Advocate in the U.S. Air Force, after which he became the first Asian American U.S. Senator from 1959 to 1977 from Hawaii and the first Asian American to receive delegate votes to be nominated for the President of the United States.

Asian American lawyers also actively contributed to the social change movements that swept America in the 1960s—most notably, Patsy Mink, a third-generation Japanese American from Hawaii and graduate of University of Chicago Law School. Several years after being rejected from all jobs she applied to because of her interracial marriage, Mink became the first Asian American woman to serve in Congress when she won a seat in the U.S. House of Representatives in 1964. As a Congresswoman, Mink helped address the needs of the women’s rights movement through sponsoring the first childcare bill, in addition to passing the 1974 Women’s Educational Equity Act which allocated $30 million a year for programs in schools that promoted gender equality, improved women’s academic and job opportunities, and expunged gender stereotypes from educational curricula. She even co-wrote the Title IX law which stated that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Mink also championed educational reform more broadly as she pushed for legislation introducing bilingual education, in addition to introducing the first Early Childhood Education Act.

Asian American Lawyers in the Modern Era

The population of Asian American lawyers has grown considerably since the 2000s. According to “A Portrait of Asian Americans in the Law,” a 2017 report published by Yale Law School and the National Asian Pacific American Bar Association and compiled by Eric Chung, Samuel Dong, Xiaonan April Hu, Christine Kwon, and Goodwin Liu, “the number of Asian American lawyers has grown from 20,000 [in 2000] to 53,000 [in 2017], comprising nearly 5 percent of all lawyers nationwide.” Additionally, the report establishes that over the past three decades, the number of Asian Americans enrolled in law school has nearly quadrupled to 8,000, demonstrating the largest spike of any racial or ethnic group—and that they are more likely to attend highly ranked law schools. But it also notes that most recently in 2016, the number of Asian American students entering law school in general was the lowest in more than 20 years. The report doesn’t attribute an exact reason for such a steep decline and recommends further research into this trendline.

With respect to the numerous Asian American lawyers who are already in the field today, however, data from the report reveals that very few of them hold leadership positions in the legal profession. Of course, while Kamala Harris has become the first South Asian American Vice President, most Asian American lawyers in general struggle to become leaders. Although 7.05% of respondents in the Vault and Minority Corporate Counsel Association’s (Vault/MCCA) 2015 survey of 225 law firms were Asian American, the data indicated that only 2.09% of them had seats on executive management committees, 2.32% on partner review committees, and 3.78% on associate review committees. Moreover, few Asian Americans serve as state judges. Even in states such as Maryland and New York—both home to a significant number of Asian Americans—less than 1 percent of their state appellate or general jurisdiction trial judges were Asian American in 2014. Even fewer Asian Americans serve in supervisory positions at the federal level; the “Portrait” highlights that in 2016, there were only three Asian American United States Attorneys in office—out of all 94 available positions—with one in each of the following areas: Hawaii, Guam and the Northern Mariana Islands, and the Southern District of New York. Data from a 2014 survey in the “Portrait” also found that, out of the 2,437 elected prosecutors in the nation, only four were Asian American. Asian Americans also rarely serve in the higher ranks of academic administration at law schools. In 2013, only three Asian Americans were law deans out of the 202 in the country, and only 18 Asian Americans out of the nation’s 709 associate or vice deans.

Why, despite demonstrating an overall and significant growth of lawyers, is there such a dearth of Asian Americans working as leaders in the law? A possible answer may include the model minority myth, which stereotypes Asian Americans as hardworking and “smart,” but too passive and socially inept to hold leadership positions. Indeed, in Elisabeth Frater’s article, “Asian American Attorneys: Shattering Conventional Norms,” Reed Smith Partner Min S. Suh confirms that “there is a perception, especially in the legal community, that Asian American lawyers are not suitable for management or leadership positions due to the stereotype that Asian Americans lack the personality to influence and lead others.” Joseph J. Centeno, a partner with Philadelphia’s Obermayer Rebmann Maxwell & Hippe, further buttresses this point: he adds that “in our society, to be a leader in any industry, you have to be bold, you have to take risks, and you have to be out there and network and create relationships with people… but Asian Americans [are often seen as] not being aggressive or assertive and being meek or sometimes a geek.” In the survey featured in the “Portrait,” many Asian American lawyers indicated that, throughout their experience in the legal profession, the most common traits that they were associated with at their jobs were “quiet,” “introverted,” “passive,” and “awkward.” Few to none of them reported that they believed they were seen as “assertive,” “extroverted,” or “loud.”

The misconception of Asians as perpetual foreigners in America may also account for another reason why Asian Americans struggle to further advance in the legal field. In the “Portrait” survey, one Asian American lawyer reported that “[she’s] an immigration lawyer. When [she] go[es] to immigration court, [she’s] mistaken for the alien.” Moreover, the Western fetishization of the sexualized, “exotic” Asian woman also poses significant obstacles for female Asian American lawyers that may thwart them from further elevating their legal careers. The same immigration lawyer from the “Portrait” survey mentioned above also revealed that “when [she] go[es] to jail to visit a client, [she’s] mistaken for their girlfriend.” Another respondent in the “Portrait” survey explained that “being an Asian woman added another layer as men were often more interested in expressing themselves as romantic prospects as opposed to colleagues.”

Moving Forward

Sources confirm that Asian American lawyers have demonstrated outstanding progress since the 1880s, despite having once been barred from practicing law. Yet they continue to face significant obstacles in the profession. Although Asian American lawyers have helped shape, build, and change American law for nearly 200 years, they are still reduced to outdated, fictitious stereotypes that preclude them from becoming leaders in the field today. Now it is time for those not only in the legal field, but also the rest of America in general, to reflect on these realities and consider how we should move forward and treat our Asian American lawyers in the future to help them reach their full potential.

The U.S. Criminal Justice System Needs to Start Treating Children Like Children

by Bianca Ortiz-Miskimen

On any given day, tens of thousands of incarcerated children are forced to eat, sleep, and learn in juvenile detention centers and adult prisons across the United States.

News stories of children being charged for harmless behaviors have become increasingly publicized, with examples ranging from not completing homework and participating in cafeteria food fights to stealing 25-cent candy. While there are child offenders who commit more serious crimes, they all deserve fair trials and sentences that take into account their young age.

Research from Stanford University shows that children have difficulty understanding the long-term consequences of their decisions and lack cognitive control during emotional situations. Experts also link moral conscience to the prefrontal cortex, which does not fully develop until adulthood and is often delayed in children who experience trauma as a result of being victimized early in life.

When a child is charged with a crime, a court will decide whether they will be tried as a child or an adult based largely on the severity of the crime. Those with less serious offenses are treated as children and have their cases heard by juvenile judges that have the power to remand them to a juvenile detention center while those treated as adults may be remanded to an adult prison with protective custody.

Meanwhile, parents of child offenders are forced to foot the bill for nightly housing in juvenile detention centers. Laws requiring these parental payments were meant to avoid burdening taxpayers and to encourage parents to keep their children out of trouble. However, the reality is that most of these parents are low-income and incapable of paying. Although some states have decided to end this practice, laws about charging parents are highly decentralized and can vary from county to county, creating large disparities.

To combat the stress of incarceration on young children and their parents, both New York and New Jersey have recently passed legislation to raise the age at which children may be tried in court as adults. However, the fact remains that in 22 states, there are no minimum age requirements for transferring a child into adult criminal courts, meaning that a child of any age in those states could end up in an adult prison for the rest of their life.

The U.S. Supreme Court has acknowledged the issue of excessive sentencing for child offenders in landmark cases Roper v. Simmons (2005) and Graham v. Florida (2009), in which the Court reversed decisions to impose the death penalty on a juvenile offender and to sentence a minor to life without parole for a non-homicidal offense, respectively. The Supreme Court opinions to reverse these prior holdings were made on the grounds that the childrens’ original sentences violated the U.S. Constitution’s Eighth Amendment prohibition on “cruel and unusual punishment.”

Rights for juvenile offenders were expanded further by the Supreme Court in Miller v. Alabama (2012) and Montgomery v. Louisiana (2016). In Miller v. Alabama, Miller appealed his sentence of life in prison without parole for a homicidal offense on the grounds that punishing a 14-year-old for the rest of his life was cruel and unusual. In a 5-4 decision, the Supreme Court reversed his sentence, with the majority opinion concluding that life without parole is a disproportionate punishment for a juvenile, thus affirming that sentencing for child offenders must be treated as constitutionally different from adult offenders.

This decision was reaffirmed in Montgomery v. Louisiana, in which Miller v. Alabama was used as precedent to assert that sentencing schemes that impose mandatory life sentences onto juvenile offenders are unconstitutional. The Court held a 6-3 decision in favor of Montgomery, stating that the Miller decision applied retroactively to Montgomery’s case.

In the majority opinion, Justice Kennedy wrote, “In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, […] prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”

Montgomery, who is 73 years old but was just 17 years old at the time of his crime, is now eligible to be considered for parole. His case has also opened the door for other cases of child offender sentencing decisions to be re-evaluated based on this new standard. Thus far, Montgomery v. Louisiana has allowed more than 500 offenders to be released on parole.

However, the Supreme Court ought to recognize the capacity for rehabilitation of child offenders beyond the scope of life sentences. Even short stays in juvenile centers can have a profound negative impact on children due to harsh living conditions. For example, two juvenile correctional facilities in Wisconsin were recently hit with a class-action lawsuit in J.J. v. Litscher (2017) for keeping children in solitary confinement, spraying them with mace, and denying them therapeutic programs.

Confinement in juvenile centers has become particularly harmful during the COVID-19 pandemic, which has caused centers to cut visits from families and friends to prevent the spread of the virus, leaving thousands of incarcerated young people feeling extremely isolated.

Despite clear issues, some have argued that punishing minors will serve a positive long-term function by teaching children at a young age that their actions have consequences. The problem is that not all children are subject to the same punishments.

While white children make up the largest share of juvenile detainees in 45 of 50 states in the U.S. as of 2019, children of color — particularly African American children — are disproportionately represented in juvenile detention centers and are referred to juvenile courts at a higher rate than their white peers. This can be attributed to a number of factors, the most troubling of which include racial bias from judges and prosecutors.

In 2018, the Senate reauthorized the Juvenile Justice and Delinquency Protection Act to update national standards on the judicial treatment of minors. The bill, introduced by Senators Chuck Grassley (R-IO) and Sheldon Whitehouse (D-RI) aims to create restrictions on locking children up for statute offenses (eg. skipping school or running away from home), reduce racial disparities in the juvenile justice system, and support alternatives to incarceration for nonviolent offenders. Proposed alternatives include behavior management programs, problem-solving courts, street and home-based services, and drug abuse prevention and education services.

Experts in the fields of psychology and constitutional law have made steps towards affirming that children are not as capable as adults of understanding the consequences of their actions. Now, federal, state, and local laws must reflect this truth and discontinue practices that are overly punitive and insufficiently rehabilitative towards child offenders who cannot yet fully appreciate the weight of their transgressions.

Affirmative Action Admissions Regimes are Unconstitutional: Strict Scrutiny Should Mean Something

by Myles McKnight and Benjamin Edelson

Harvard’s affirmative action saga continues, or so we hope. After losses in the Federal District Court and the First Circuit Court of Appeals, the non-profit group seeking to do away with Harvard’s race-obsessed admissions regime has filed a Petition for Writ of Certiorari in our Nation’s highest tribunal. Students for Fair Admissions petitions the Court to consider overruling Grutter v. Bollinger, the narrow 2003 decision which held that the University of Michigan Law School’s race-conscious admissions program was constitutional because it satisfied strict scrutiny. Grutter’s loose reasoning leads us to think that the Court should overrule, so we’ll canvass just one reason for believing so here.

Whatever you make of the merits of Harvard’s affirmative action program, there are constitutional questions that lurk beneath the operation of any state-sponsored policy which prescribes differential treatment on the basis of race. No one denies this. Policy is one thing, constitutionality another. And when government policy (or the policy of institutions that receive government funding, like Harvard) makes racial classifications, reviewing courts must apply the test of strict scrutiny to determine whether or not those policies meet constitutional muster.¹ For the unfamiliar: A race-conscious policy satisfies strict scrutiny if it 1) furthers a compelling (i.e. necessary) state interest, and 2) is “narrowly tailored” such that the policy minimizes, to the extent possible, differential treatment on the basis of race. If a policy discriminates on the basis of race only to the degree necessary to meet a compelling interest, it stands the test of strict scrutiny.

Harvard argues that its policy meets this standard. We think that’s wrong. In fact, we don’t think an affirmative action regime like Harvard’s can ever satisfy strict scrutiny for reasons we’ll present below. But first, some preliminaries.

The compelling interest claimed by the law school in Grutter was the procurement of the educational benefits that stem from having adequately diverse classrooms (what Justice Thomas calls “classroom aesthetics”).² In fact, of the interests historically offered as justifications for affirmative action admissions practices, the Court has held that this is the only one that can be compelling.³ Before turning to whether or not this interest actually is compelling, we should point out that there is serious reason to doubt that this interest is truly the one that animates affirmative action policies like Harvard’s.

Let’s grant, for a moment, that the end to which the policy is tailored is the procurement of the educational benefits that stem from classroom diversity. (The alleged compelling interest is not racial diversity qua racial diversity, but rather the educational benefits that stem from that diversity).

Why limit the diversity to racial diversity? If the interest in the educational benefits that stem from racial diversity is indeed compelling, presumably there are other forms of diversity that would produce similarly significant, and similarly valuable, educational benefits. And those would be compelling too, right?⁴

We can, in fact, think of other diversity domains wherein composition shifts would shock the academic status quo at elite universities just as much as or even more than adjustments in racial composition, thereby providing educational benefits at least as tangible and significant. Here are a few: political, ideological, and religious diversity among professors and students. Nevertheless, it is no secret that evangelical Christians and conservatives go dramatically underrepresented at institutions like Harvard or, say, Princeton. Can it really be that the educational benefits that stem from racial diversity are compelling interests while the educational benefits that stem from political, ideological, and religious diversity are not? Indeed, in the context of academe, where the cause of truth-seeking through academic discourse is advanced, one would think that the most prized form of diversity would be ideological. There can be little doubt that healthy ideological diversity would have at least as tangible an impact on the ability of students to navigate an ideologically, racially, and religiously diverse world as racial diversity would.

All of this should give us real pause before buying into the notion that the educational benefits that stem from racial diversity are the real interests at play. To us, it seems more plausible that the interest is something akin to the following: the rectification of societal ills and tragedies of minority underrepresentation. We think that this is a laudable interest, but it is not the one once alleged by the University of Michigan Law School or the one alleged by Harvard today. Moreover, the fulfillment of this specific interest by affirmative action was explicitly thrown away by Justice Powell in Bakke.

If you disagree with us so far, you might be tempted to respond: “Ah, well, conservatives and evangelicals are not historically marginalized groups. It’s wrong to analogize intellectual and religious diversity to racial diversity in this way!” Well, you’ve proved our point: Your interest lies in the rectification of historic societal ills.

Let’s leave this aside. As a matter of fact, we do have reason to conclude that the asserted interest of procuring educational benefits is not the one that the Court should evaluate here. This is because the phrase “educational benefits that flow from racial diversity” is actually a gross misstatement of the more precise interest motivating Harvard’s scheme. We construe it as follows: the procurement of the educational benefits that stem from racial diversity, consistent with the maintenance of prestige and the general standards of the institution.

In our view, that second clause (“…prestige and general standards of the institution”) is a necessary component of the true interest to be weighed. Before explaining why this is the case, we should first take care to note that the maintenance of institutional prestige couldn’t possibly be a compelling interest. The compelling interest doctrine, as applied to race-conscious policies, provides the courts with a mechanism to smoke out illegitimate racial differentiation in all but situations of total necessity; “compelling” does not mean “preferable” or “laudable.” As historically applied to race-conscious policies, strict scrutiny has rejected interests even as important as the “best interests” of children. Race-conscious policies have otherwise typically stood only when they serve interests of such immense necessity as national security, the functionality of government, and safety from violence.⁵ In any case, should you prefer a looser conception of “compelling interest” than we do, it’s still immensely difficult to see how the maintenance of institutional prestige could ever rise to the qualification of compulsory. To quote Justice Scalia: “If that is a compelling state interest, everything is.”

So, if we’re correct in construing the relevant interest as we do, an affirmative action scheme like Harvard’s cannot pass the test of strict scrutiny. And if that is the case, it is unconstitutional. So, why are we correct?

Suppose you were devising an admissions scheme designed to secure the educational benefits that stem from classroom diversity. You’re not interested in prestige or maintaining the “high standards” for admission that make your university so elite – you know that those interests couldn’t be compelling. So, how do you do it? Your policy will need to be narrowly tailored, meaning it will have to be as race-neutral as possible while still increasing the diversity of your classrooms. If your interest lies only in the educational benefits that flow from increased racial diversity, perhaps you’ll come up with a lottery system so that your admitted class will be more reflective of a diverse applicant pool. Or, maybe you’ll adopt an approach to evaluating applications that gives less weight across the board to factors that, on average, tend to cut against the admissions chances of disadvantaged minority students (e.g. SAT scores). This would substantially reduce the disadvantage faced by applicants from historically marginalized communities. Because reduced consideration of such factors would apply to all applicants, you might not have to consider racial background at all.

But instead, you opt for a scheme that deliberately favors applicants from some minority groups by applying different standards of admission to students on the basis of their racial identities.⁶ Anyone can see that that scheme is not narrowly tailored to the interest in the way that the aforementioned alternatives might be; there are more race-neutral ways to attain sufficient classroom diversity than this scheme. Indeed, such a race-conscious admissions scheme can only be narrowly tailored if the interest itself is adjusted to accommodate the claim of narrow tailoring. Thus, an affirmative action admissions regime like Harvard’s, which applies different standards to different races in order to produce classroom diversity without sacrificing any degree of prestige, is only narrowly tailored in the context of an interest which includes the maintenance of the prestige secured by exclusive admission standards. And the interest in prestige and exclusivity, as we have suggested, cannot be compelling.

Importantly, we haven’t passed judgment on the policy merits of affirmative action. We believe that the rectification of societal ills and tragedies of minority underrepresentation are important and laudable interests. They are, moreover, perfectly constitutional interests. However, this does not mean that the Constitution gives wide latitude to policymakers who wish to realize these aspirations by devising policies that prescribe differential treatment between races. Rather, our Nation’s reckoning with its painful history of racial discrimination has led to the application of a rigorous legal safeguard designed to smoke out all but the most indispensable considerations of race. That safeguard is strict scrutiny. For a policy that discriminates between individuals on the basis of race to survive a constitutional challenge, it must do battle with strict scrutiny. The sort of policy we address here loses that battle.

¹ Adarand v. Peña, 515 U.S. 200 (1995)

² Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325 (2003)

³ See Justice Powell’s opinion in Bakke. Bakke, 438 U.S. 265 (1978)

⁴ It’s true that many schools, including Harvard, consider certain other forms of diversity during the admissions process (Harvard also considers geographic diversity, for example).

⁵ From Justice Thomas in Grutter: “Where the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination, I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity.’ Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (per curiam) (Black, J., concurring) (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination); Croson, supra, at 521 (Scalia, J., concurring in judgment).”

⁶ That this is the mechanism by which affirmative action policies achieve their ends is not a subject of debate.

This article was edited on April 27, 2021.