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Blame the Victim: How Mistreatment by the State Is Used to Legitimize Police Violence
Get PDFThe surprising thing about George Floyd is not that he was killed by the police. What is remarkable is that the officer who killed him was charged, convicted, and sentenced to more than twenty-two years in prison. This article examines the institutional mechanisms that support police violence against Black people. In the process, it illuminates the insidious ways in which state actors exploit structural social, economic, and health mistreatment to legitimize police violence. After exploring these issues, this article provides suggestions to reform our institutions in a manner that will bring about meaningful and lasting change
Parole, Victim Impact Evidence, and Race
Get PDFParole offers the possibility of release for a substantial number of incarcerated people in the United States, the world’s largest jailer, but is seriously understudied. In particular, the role of victims and race in the parole decision-making process deserves attention. Decades of research has shown that the “race-of-victim effect” leads to more punitive sentences when white victimhood is at issue. In the parole context, the ubiquity of victim impact statements and the emotional responses they trigger raise the likelihood that the “race-of-victim effect” plagues parole decision-making as well. This essay calls for greater data collection and scrutiny into the role of race and victim impact evidence in the parole decision-making process
DNA Dystopia: How the National Security Apparatus Could Map the Entire Genome of America Without Violating the Fourth Amendment or the Constitutional Right to Privacy
Get PDFOver the past decade, scientific advances have allowed genetic testing to become accessible to consumers. Direct-to-consumer (DTC) DNA testing companies can analyze your DNA sample so you can learn about your family’s origins or whether you are genetically predisposed to a specific disease or disorder. Consumers can then send these analyzed files to third-party databases that aggregate genetic data for specific purposes, like helping law enforcement solve cold cases. Recently, the Department of Defense alerted servicemembers that DTC DNA tests were a national security threat. Simply put, when the national security apparatus finds a threat, it proactively seeks to neutralize the threat, as seen in the 1960s and 1970s when crushing domestic protestors and at the beginning of the twenty-first century during the “War on Terror.” This note explores whether genetic information stored with DTC DNA testing companies or third-party databases is in fact a national security threat. This note brings attention to what would occur if US intelligence operations began to seize the DNA data of Americans, highlighting how the federal judiciary is ill-equipped to adjudicate DNA data, the biological essence of each person. This note then seeks to assess whether constitutional protections for genetic data could be judicially crafted by adapting the Fourth Amendment expectation of privacy or extending the larger constitutional right to privacy to the realm of genetic data. In finding shortcomings to these prospects, a legislative solution is the only alternative. This note also assesses European privacy laws and state-based initiatives or viable alternatives to the present situation. Ultimately, a federal law should be crafted that protects consumer’s genetic privacy, balances a private right of action with regulatory enforcement, and incentivizes DTC DNA companies and third-party websites to promote more secure methods so genetic data cannot be deemed a potential national security threat
Achieving Law Reform Sometimes Requires a Strong Defense
Get PDFIn 2019, a joint drafting committee authorized by the Uniform Law Commission and the American Law Institute began work on a sweeping set of amendments to the official text of the Uniform Commercial Code (UCC) that address issues arising from emerging technologies. The amendments were approved by the sponsoring organizations at their 2022 annual meetings, and efforts are already underway to gain uniform nationwide enactment by state legislatures. The most significant changes to the UCC consist of a new Article 12 dealing with digital assets and amendments to Article 9 that facilitate the leveraging of these assets. Also in 2019, Wyoming adopted legislation to accomplish much the same thing. Although well-intended, the manner in which the legislation was drafted created serious problems for the functioning of that state’s version of Article 9 and for lawyers planning financing transactions involving digital assets. Between 2019 and 2022, bills based on the Wyoming model were introduced in over 20 states. In response, the Uniform Law Commission launched an intense effort by a small team of its members to explain to these states the problems with the legislation and to encourage them to wait for the official amendments to be finalized. I was a member of the joint drafting committee and of the team that opposed Wyoming-like legislation. The Article is based on my first-hand observations and on documents maintained in my files
ICE Transfers and the Detention Archipelago
Get PDFThis article examines transfers as an understudied but critical dimension of the immigration detention system. Transfers regularly take detainees in immigration custody from public to private facilities, across state lines, and beyond the jurisdiction of individual courts. Immigration and Customs Enforcement (“ICE”) has virtually unlimited authority to use transfers strategically to further agency goals of immigration enforcement. For individual detainees, transfers shape outcomes in their immigration cases. Noncitizens are regularly funneled into detention centers in legal jurisdictions generally hostile to claims for relief. Transfers also regularly send detainees to facilities in isolated, rural communities, where they are more likely to face psychological and logistical barriers to fighting their deportation. From the outset, ICE has resisted regulation and adherence to its own guidelines, resulting in harm to detainees without the protections and recourse afforded to those in criminal custody. The agency’s unlimited authority to effectuate transfers can be traced to specific failures within each branch of government, including the lack of statutory or regulatory authority to rein in ICE practices and jurisdiction-stripping statutes that systematically prevent noncitizens from challenging immigration agency decisions. The intractable problems raised by transfers—including the limits of ICE detention infrastructure and the challenges of enforcing standards across public and private facilities—highlight the problems inherent in an enforcement strategy with detention at its center. This article concludes that transfer policies require not reform, but reimagination of immigration enforcement within a framework that offers safeguards for the rights of noncitizens in removal proceedings
WEATHERING THE STORM: ESTABLISHING INTERNALLY DISPLACED PEOPLE’S RIGHT TO AFFORDABLE HOUSING IN THE WAKE OF NATURAL DISASTERS
Get PDFIn 2020, natural disasters caused more internal displacement than war; floods, storms, and wildfires caused thirty million new displacements globally, and 1.7 million in the U.S. alone. The data and history suggest that masses of people will be displaced every year and will face housing insecurity without any formal acknowledgement of their unique plight or a guarantee that internally displaced persons (“IDPs”) will have protected rights. This Note proposes that, considering the worsening climate crisis leading to more frequent and severe natural disasters, the U.S. should codify the rights of internally displaced people as laid out in the United Nations’ Guiding Principles on Internal Displacement. In order to actualize IDPs’ right to return and resettle, the U.S. should also establish IDPs’ right to affordable housing when natural disasters force people to leave behind their homes and communities. To effectively enforce such rights, the federal government should provide more affordable housing, invest in making the existing affordable housing stock and new affordable housing developments climate resilient, and collect accurate data on IDPs to provide adequate disaster relief, taking special care not to exacerbate gentrification and surveillance concerns. Codifying the rights of IDPs would go a long way in remedying larger systemic issues such as the racial wealth gap and rampant housing insecurity, ultimately furthering environmental justice
How Public Health Informed Lawmaking Would Address the Rising Synthetic Opioid Death Toll
Get PDFThe sharply rising deaths associated with use of synthetic opioids in the United States highlight the failure of a legislative strategy focused on reducing the availability of prescription opioids. However, since synthetic opioids prescribed for pain relief have never been a major contributor to either developing opioid dependence or dying from opioid use, it is not surprising that these measures have not only failed to reduce deaths, but have also caused considerable harm to people in need of pain relief. Yet reversing them and taking a public health approach focused on preventing the most serious harms associated with synthetic opioids is hampered by the failure of the US legal system to adopt public health methods when legislating to address threats to the public’s health. Specifically, legislative initiatives are doomed to fail when they lack processes of setting legislative goals based on scientific evidence, reviewing the effectiveness of legislation in achieving these goals, or implementing changes when the goals are not being met. This article identifies why the current method of using the legal system to address public health problems has made it so difficult to address the unacceptably high number of deaths associated with use of synthetic opioids and suggests how a different approach to law making could prevent future deadly failures
Signed, Sealed, & Undelivered: Unsuccessful Attempts of Foreign Judgment Recognition Between the U.S. and China
Get PDFWith the growth of international trade between the United States and China, the issue of not having a reciprocity system for recognition and enforcement of foreign judgments between the two countries has become increasingly more prevalent. Since ratifying the New York Convention, parties from both countries have primarily relied on arbitration to settle disputes. However, as trade continuously expands, the need for a reciprocal system for foreign judgments expands alongside it. This note addresses the history of the Hague conventions and the attempts to resolve foreign judgment recognition and enforcement on a multilateral scale. The note then continues discussing how the United States and China recognize and enforce foreign judgments. On the international level, both the United States and China have signed the 2005 Choice of Court Convention; but neither have ratified it since the resulting treaty contained ambiguous provisions. To correct and clarify provisions of the Choice of Court Convention, the Hague Conference held the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. This note proposes that the United States and China should sign and ratify the 2019 Judgment Convention to ensure a reciprocal judgment recognition and enforcement system for foreign business conducted in each country, thereby protecting and strengthening future business between the two countries