Racial Justice

13 posts

Shielded from Justice: How State Attorneys General Can Provide Structural Remedies to the Criminal Prosecutions of Police Officers

By Isaac G. Lara

The recent string of police shootings involving unarmed civilians has prompted national outcry over the actions of law enforcement officials. Many state and local law enforcement agencies today are reexamining the way prosecutors handle these incidents. In most jurisdictions today, District Attorneys are responsible for investigating such cases, which is problematic given the reciprocal relationship that exists between District Attorneys and law enforcement agencies. Specifically, District Attorneys rely on police officers to make arrests, interrogate suspects and testify at trial. In turn, police officers rely on District Attorneys to translate their arrests into convictions. This relationship creates a real or perceived conflict-of-interest, which can severely undermine public confidence in the criminal justice system.

State Attorneys General, however, may provide structural solutions to this problem. To illustrate this, this Note conducts a broad survey of the five major categories of actions that State Attorneys General can use during investigations into police shootings. This Note also offers recommendations as to how State Attorneys General can improve on current practices to ensure fair investigations and outcomes. Recommendations include appointing a special prosecutor from a different district; launching a conflict-of-interest inquiry; cooperating with the federal government in devising a national database of police shootings; and reexamining the legal parameters of the use of force.

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Embracing Federalism in Special Prosecution Models: An Analysis of Experimentation in the States

Issues Volume 52, Issue 3

By Sabrina Singer

The main project of this Note is to use the example of police officer-involved deaths of unarmed civilians to craft and apply different special prosecution models. In Part II, this Note starts from the proposition that a special prosecutor should supersede the local prosecutor to investigate and prosecute certain cases, such as the police-involved death of unarmed civilians. This Note then identifies and addresses the criticisms made by opponents of special prosecution models.

In Part III, this Note presents and analyzes the existing special prosecution models implemented in states to address cases of police officer-involved deaths of unarmed civilians. Part IV uses the example of New York as an in-depth case study. Then, Part V distills down these complete state models to “dimensions” – areas where the models differ – to provide an analytical structure for readers to use in their own evaluation and design of special prosecution models. The dimensions also provide a structure for Part VI, which proposes and evaluates special prosecution models that seek to address incidents of police officer involved deaths of unarmed civilians. The broader utility of the dimensions will be as a framework for any future special prosecution model that seeks to address any future latent law enforcement gaps.

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Catalyzing the Separation of Black Families: A Critique of Foster Care Placements Without Prior Judicial Review

Issues Volume 51, Issue 3

By Kathleen Simon

Although decades of efforts have realized significant progress toward the goal of eliminating racial discrimination in the child welfare system, black children continue to enter foster care at rates that exceed their level of need. This Note explores how the standard practice of removing a child without prior judicial authorization has quietly contributed to this civil rights crisis by enabling racial bias to go unchecked in the placement decision-making process.

In an attempt to understand how state legislatures can ensure that risk, rather than race, informs foster care placements, this Note introduces an original analysis comparing the racial disparity rates in foster care entries among states. Based on the study’s finding that greater racial disparities exist in jurisdictions with flexible emergency removal laws, this Note recommends that states excuse pre-deprivation hearings only when taking the time to seek an ex parte court order would jeopardize a child’s safety.

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Retaking Mecca: Healing Harlem through Restorative Just Compensation

Issues Volume 51, Issue 2

By Meron Werkneh

Neighborhood redevelopment often brings about major cultural shifts. The Fifth Amendment‟s Takings Clause allows for the taking of private property only when it is for public use, and requires just compensation. Courts have expanded the “public use” requirement to allow “urban renewal projects” where the economic development of the area stands as the public purpose. The consequent influx of private developers in the name of economic revitalization has led to the displacement of many communities — particularly those made up of low-income people of color.

This displacement has been extremely visible in Harlem. Harlem was once considered the Mecca of black art and culture, but the last few decades have brought changes that may cost it this title. Rampant land condemnations and redevelopment efforts incited a noticeable socioeconomic shift in the historic neighborhood. Residents and small business owners pushed against these eminent domain actions, but to no avail — Harlem‟s gentrification continued. Rising rents and institutional barriers compelled the slow exodus of longtime African American residents and business owners unable to afford the increasing costs.

This Note explores the expansion of “public use” after Kelo v. City of New London, noting how it encouraged gentrification, particularly in Harlem. It argues that the current compensation scheme does not meet the constitutional standard of being “just” because it does not account for the loss of the community as a unit, or the dignitary harm suffered due to forcible displacement in the name of “revitalization.” Finally, it proposes Community Benefits Agreements as the vehicles through which gentrifying communities can receive restorative compensation, offering recommendations for creating a CBA that could begin to heal Harlem.

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“A Statement About Who Deserves to Live Here”: The Fair Housing Act Implications of Housing New York

Issues Volume 52, Issue 4

By Pablo Zevallos

New York City faces the twin problems of housing segregation and a shortage of affordable housing. In response, Mayor Bill de Blasio developed Housing New York, a plan to create or preserve 300,000 affordable units across a variety of income bands. As part of this plan, the City instituted inclusionary zoning policies and modified density caps in certain neighborhoods while targeting units for households in a range of income brackets citywide. Yet many residents and community advocates have long argued that homes developed under the plan are unaffordable to working-class, disproportionately affecting Black and Latino New Yorkers.

This Note takes a first pass at analyzing the plan’s compliance with the Fair Housing Act of 1968 through the lens of the plan’s income affordability targets and its household targets (the latter being deciphered through the aforementioned changes to city policy on density and the number of bedrooms targeted in new housing units). It examines key neighborhood demographics for communities targeted for inclusionary zoning and argues that the plan’s income affordability targets and its household targets, taken together with the City’s existing community preference policy, likely have a disparate impact on Black and Latino New Yorkers by disproportionately denying members of these communities housing and by perpetuating segregation within and between neighborhoods. This Note then propose a non-comprehensive set of remedies that would fall within jurisprudential constraints on Fair Housing Act cases.

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Whiter and Wealthier: “Local Control” Hinders Desegregation by Permitting School District Secessions

Issues Volume 52, Issue 1

By Meaghan E. Brennan

When a school district is placed under a desegregation order, it is to be monitored by the district court that placed the order until the district is declared unitary. Many school districts have been under desegregation orders since shortly after Brown v. Board, but have failed to desegregate. Even when a school district is making an honest attempt, fulfilling a desegregation order is difficult. These attempts can be further complicated when a racially-identifiable set of schools secedes from the district. Such school district disaggregations make traditional desegregation remedies more difficult by further isolating children of different races.

In the past few decades, dozens of school districts have seceded to create wealthy districts filled with white children adjacent to poorer districts with children of color. This Note argues that school district secessions harm desegregation efforts and, in turn, the educational achievement of students in those districts. Two school districts — one in Jefferson County, Alabama and another in Hamilton County, Tennessee — serve as examples of how secession movements arise and how the conversations progress. Secession proponents often advocate for increased “local control” — seemingly innocuous rhetoric that serves as a guise for racism and other prejudice.

This Note argues that school district disaggregation is made far too easy by judicial preoccupation with local control and by the moralpolitical failure of state legislatures. But it is possible to discourage segregative school district disaggregation by reworking the concept of local control so that it prioritizes all children, and by adopting state legislation that promotes consolidated, efficient school districts.

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Strict Tort Liability for Police Misconduct

Issues Volume 53, Issue 1

By Elias R. Feldman

The disproportionate rates at which police use wrongful deadly force against racial minorities in the United States is a matter of significant national concern. This Note contributes to the ongoing conversation by proposing a new legal reform, which calls for the state law imposition of strict tort liability on municipal governments for police misconduct. Such a reform could remedy the harms of police misconduct more fully than the existing laws do.

Under the Restatement (Third) of Torts, a person who is found by a court to have carried on an “abnormally dangerous activity” will be subject to strict liability for physical harm resulting from that activity. An abnormally dangerous activity is one which creates a foreseeable and highly significant risk of harm even when reasonable care is exercised in its performance; it is also an activity of “uncommon usage” in the sense that the risk it creates is nonreciprocal. In Part II, this Note explains how the policies and practices of modern policing, in conjunction with human cognitive limitations, cause policing to create a foreseeable and highly significant risk of harm even when performed with reasonable care. Part III then explains how policing’s risk is disproportionately borne by racial minorities, and how this nonreciprocity of risk imposes a dignitary harm on third-party racial minorities distinct from the physical harm suffered by police misconduct’s immediate victims. Part IV, in turn, discusses how policing’s nonreciprocal risk also makes policing “uncommon” in the relevant sense. Having established that policing is the kind of activity to which strict liability can be properly applied as a matter of law, this Note argues in Part V that imposing strict tort liability on municipalities for police misconduct is desirable as a matter of policy because strict liability rules are uniquely effective at correcting the misallocation of social costs and benefits stemming from nonreciprocal risk. Finally, this Note concludes in Part VI by anticipating possible political and legal objections to the proposed reform.

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Giving Voice to the Silenced: The POWER Act as a Legislative Remedy to the Fears Facing Undocumented Employees Exercising Their Workplace Rights

Issues Volume 54, Issue 3

By Elie Peltz

Undocumented workers in the United States number nearly eight million and are key contributors to major industries and regional economies across the country. Yet undocumented workers often hesitate to report labor law violations due to the fear of making themselves known to immigration authorities. In recent years, employers have felt emboldened to ignore the labor rights of undocumented workers amidst a political climate marked by anti-immigrant rhetoric and increased government monitoring of immigrants. Although federal, state, and local law all provide criminal and civil remedies for undocumented workers who have experienced workplace violations, these forms of relief do not protect undocumented workers from their greatest fear — deportation. Consequently, many undocumented workers continue to suffer workplace abuse in silence.

This Note explores two complementary federal government reforms to insulate undocumented workers who report workplace abuse from deportation: 1) expansion of the U nonimmigrant status visa program, and 2) restriction of U.S. Immigration and Customs Enforcement’s ability to deport individuals who have pending actions against employers. This Note then analyzes proposed legislation that fixes the shortcomings of these attempts at reform: The Protect Our Workers from Exploitation and Retaliation Act (POWER Act), most recently introduced in Congress in November of 2019. Finally, given enforcement trends that emerged under the Trump Administration, this Note critically assesses the viability of the POWER Act and considers ways to bolster the legislation’s protections for undocumented workers.

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Racialized Self-Defense: Effects of Race Salience on Perceptions of Fear and Reasonableness

Issues Volume 55, Issue 4

By Suzy J. Park

Through a controlled experiment, this Note investigates the hypothesis that implicit references to racial stereotypes, such as subtle racial imagery, trigger mock jurors’ implicit biases to a greater degree than explicit invocations of racial stereotypes. Across six conditions, 270 participants read facts resembling those of People v. Goetz, in which a White defendant shot four young men in a subway train, allegedly in self-defense. Half of the participants viewed photos depicting the victims as White; the other half viewed photos depicting the victims as Black. Participants were further randomly assigned to read the defense attorney’s statement to the jury layered with implicit, explicit, or no racial cues. Following the experimental manipulation, participants indicated to what degree they believe that the defendant subjectively and reasonably believed that he was faced with a physical threat at the time of the shooting. Contrary to the hypothesis, the experiment found no statistically significant difference between explicit and implicit appeals to race in triggering individuals’ racial biases regardless of the race of the victims. This Note contributes to the existing literature by providing experimental data on exactly how powerful the use of implicit racial imagery may be in the courtroom and by probing the mechanism through which racially coded language affects jurors’ decision-making. The results further suggest that, since courts cannot easily make people “turn off” their prejudices through the use of race salience, choosing jurors during voir dire who are internally and genuinely motivated to be unprejudiced is all the more important.

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“Stamping” Out the Postage Poll Tax

Issues Volume 55, Issue 2

By Samuel Ackerman

In the 1966 case of Harper v. Virginia Board of Elections, the Supreme Court abolished the last vestiges of the Jim Crow-Era poll tax in one fell swoop under the Equal Protection Clause. The opinion emphasized that paying a tax or fee is irrelevant to one’s qualifications for voting and invidiously discriminates against the poor. Litigants have since invoked Harper to challenge poll tax-like policies, called constructive poll taxes. The doctrine surrounding constructive poll taxes, however, remains underdeveloped. This Note seeks to clearly establish what constitutes a constructive poll tax. This Note also responds to the 2021 case of Black Voters Matter Fund v. Secretary of State for Georgia, where the Eleventh Circuit held that requiring voters to pay for postage on mail ballots is not a constructive poll tax. Considering Harper’s philosophical underpinnings, the limited constructive poll tax case law and policy principles, this Note argues that a constructive poll tax exists whenever states require voters to pay a tax or fee unrelated to elections or buy an item or service to cast a ballot. Applying this definition to postage on mail ballots, this Note concludes that postage requirements constitute constructive poll taxes in violation of the Equal Protection Clause. Finally, this Note advocates for strategic litigation and state-level legislation to abolish postage requirements for mail ballots and encourage a sea change in constructive poll tax doctrine.

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“Unpacking” the Problem: The Need to Broaden the Scope of Vote Dilution Claims Under Section 2 of the VRA

Issues Volume 55, Issue 2

By Paul A. Riley, Jr.

There are two common types of gerrymandering: “cracking”— splitting a cohesive voting bloc across districts, and “packing”—over-consolidating a cohesive voting bloc into a single district. These types of gerrymandering can be partisan, but they can also be along racial lines. As this Note demonstrates, Section 2 of the Voting Rights Act (VRA) has a remedy for cracking, but not for packing.

Through statistical analyses, this Note demonstrates the statistically significant relationship between race and the Cook Political Report’s “Partisan Voting Index,” as well as between race and voter turnout in the 2020 general and 2018 midterm elections. In particular, the statistical analyses reveal how race and PVI can serve as the pillars of a novel, three-factor test that would make vote-packing claims cognizable under Section 2 of the VRA. Finally, this Note proposes a framework that would broaden the definition of “vote dilution” under Section 2 of the VRA and would provide a remedy for minority voters who are packed into districts.

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Beyond Discriminatory Intent: Agriculture, Labor Rights, and the Shortcomings of Equal Protection Doctrine

Issues Volume 55, Issue 2

By Mary Otoo

The National Labor Relations Act provides labor protections for millions of workers. The existing exemption for agricultural workers, however, leaves a crucial category of workers vulnerable because they lack federal protection to form unions and collectively bargain with their employers. Implemented in 1935, the exemption created a severe disparate impact for farm workers, most of whom are Latinx. This lack of labor rights robs agricultural workers of important tools to increase wages and improve working conditions and benefits.

In the past, plaintiffs have attempted to challenge the exemption on equal protection grounds, but these challenges have failed—in large part because there is no direct evidence of Congress’ intent to discriminate against Latinx workers, despite the exemption’s disproportionate harm. This Note presents a theoretical framework for assessing equal protection claims challenging laws that have a prolonged and severe disparate impact, a framework which, unlike current equal protection doctrine, does not require plaintiffs prove discriminatory intent. The intention in creating this new framework is to make it easier for plaintiffs to challenge longstanding laws that continue to have a harmful disparate impact on minorities, even in cases where it is difficult or impossible to prove that Congress harbored discriminatory intent when it passed the law. This Note explains the elements of the theoretical framework and applies it to the NLRA agricultural exemption.

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Insurrection By Any Other Name? Race, Protest, and Domestic Military Intervention

Issues Volume 55, Issue 1

By Ailee Katz

During the summer of 2020, protests against police violence and racial injustice erupted around the country. In response to the movement, governors and the federal government deployed National Guard troops in several states and Washington, D.C. President Trump also threatened to invoke the Insurrection Act to suppress the protests.

Drawing on the concepts of antisubordination and racial citizenship, this Note contends that modern military suppression of racial justice protest reproduces racial hierarchy by physically and symbolically suppressing the valid exercise of citizenship, speech, and demand for equal treatment. After surveying the historical and modern legal landscape governing domestic military deployment—including the Posse Comitatus and Insurrection Acts—this Note calls for an updated framework that significantly curtails presidential and gubernatorial authority to suppress social unrest with military force. This Note therefore expands on existing scholarship that has explored how policing exacerbates racial violence and inequality by examining how the military can and has been used to maintain white supremacy.

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