jlieditors, Author at Minnesota Journal of Law & Inequality

A Solution to Hoffman’s Choice for Unauthorized Workers: Creating New Incentives to Report Unlawful Workplace Discrimination

By jlieditors

by Andrew J. Glasnovich^†

Table of Contents

I. How the Law Disincentivizes Unauthorized Workers from Reporting Discrimination

A. Immigration Law Creates Negative Consequences for Reporting Discrimination
B. Courts Place the Blame on the Worker Instead of the Discriminating Employer
C. California Took a Stand for Unauthorized Workers

II. How to Incentivize Unauthorized Workers to Report Discrimination

A. Provide Damages for Irreparable Harm
B. Allow the EEOC to Seek All Types of Damages
C. Congress Must Act to Amend Title VII

III. Hoffman Enacts an Unintended Punishment on Unauthorized Workers

Maria and Sue are coworkers at ACME Factory. They are also neighbors and best friends. Additionally, Maria and Sue share the same supervisor at work, Ted. One day, Ted calls Maria and Sue into his office to discuss declining factory production quotas. Near the end of the conversation, Ted mentions that this quota problem could go away if Maria or Sue would go on a date with him. Maria and Sue glance to each other and politely dismiss the remark. Later that week, Maria and Sue decide to report Ted to management for his inappropriate behavior. Management informs Ted, and he immediately terminates Maria and Sue.

Distraught and unemployed, the friends take legal action. Maria and Sue go to the Equal Employment Opportunity Commission (EEOC). The EEOC finds that the friends were fired in retaliation for their complaint against Ted. An action commences in federal district court and the friends seek reinstatement, backpay, and compensatory and punitive damages.

As discovery closes, ACME uncovers that Maria does not have authorization to work in the United States. Thus, ACME claims Maria is ineligible to bring suit for employment discrimination, because she should never have been employed by ACME in the first place. The judge agrees and dismisses Maria’s claim, but ultimately Sue wins her case and is awarded the entirety of her requested relief.

So what was different between Maria and Sue? Do workplace discrimination laws apply to authorized and unauthorized workers differently?[1] Maria and Sue were subject to the same harassment. Somehow ACME and Ted got away with mistreating Maria, but were held to account for mistreating Sue.

In 2012, the United States was home to 11.7 million people who did not have legal authorization to reside in the country.[2] Of those, approximately 8 million people were active in the work force.[3] Unauthorized workers will likely contribute $2.6 trillion over the next decade to the U.S. economy.[4] Those unauthorized persons are some of the most vulnerable members of society. Because of their status, some unauthorized workers fear that their choice to report employer misconduct will lead to their deportation or imprisonment.[5] State and federal laws prohibit employers from class-based discrimination against their workers—whether these workers are authorized or unauthorized.[6] Despite those laws, some employer misconduct is notably egregious and includes wage theft, unsafe labor conditions, race and sex discrimination, and sexual assault.[7] However, some unauthorized workers are brave enough to risk deportation and challenge their employers’ unlawful practices.[8]

This Article will identify how federal law protects unauthorized workers from class-based discrimination and will define the proper scope of relief for violations of these laws. First, this Article examines a conflict in federal law that creates an incongruence between the purported right to a workplace free of discrimination and the corresponding claims for relief available to unauthorized workers. Next, this Article proffers a new analytical framework, based on state law examples, to resolve this legal quagmire, arguing that current jurisprudence does not apply to antidiscrimination statutes. Finally, this Article proposes that Congress amend Title VII of the Civil Rights Act of 1964 (Title VII) to correct the U.S. Supreme Court’s misapplication of immigration law, which stripped unauthorized workers of the basic protections of dignity and workplace security.

I. How the Law Disincentivizes Unauthorized Workers from Reporting Discrimination

Two seemingly unrelated statutes predominate this analysis: The Immigration Reform and Control Act (IRCA) and Title VII. In comparing the overarching policies of both statutes, one must resolve the question: Can unauthorized workers sue and receive monetary awards that purport to compensate for lost wages—wages that, under IRCA, these workers unlawfully earned? A cursory look at these two statutes illuminates the problem.

A. Immigration Law Creates Negative Consequences for Reporting Discrimination

IRCA’s goal is to discourage the flow of undocumented persons into the United States.[9] IRCA prohibits an employer from hiring a person not authorized to work in the United States, penalizing the employer for failing to confirm eligibility. This in turn has negative consequences for the unauthorized employee.[10] A violation of these provisions subjects the unlawful actor to both civil fines and criminal penalties, including the possibility of deportation for an unauthorized person.[11] Congress did not, however, intend IRCA to block unauthorized workers’ access to discrimination protections offered by other statutes.[12]

Paramount among these anti-discrimination statutes, Title VII protects an individual from unlawful employment practices based on his or her race, color, religion, sex, or national origin.[13] Congress enacted Title VII to rid the work place of invidious discriminatory practices.[14] Congress recognized that racial and sexual discrimination impose a high cost on society and that bringing to light this discrimination is a compelling governmental interest.[15] Title VII provides various remedies to the unlawful employment practice, including reinstatement, backpay,[16] and punitive and compensatory damages.[17]

The Supreme Court has held that, for analogous workplace claims under the National Labor Relations Act (NLRA), IRCA precludes unauthorized workers from obtaining wage-like damages.[18] In Hoffman Plastic Compounds, Inc. v. NLRB, the Court found that the National Labor Relations Board (NLRB), an administrative agency, did not have the authority to award backpay to an unauthorized worker.[19] The Court reasoned that the NLRB, in its capacity enforcing the NLRA, did not have the authority to contravene the policy behind IRCA.[20] The Court, however, did not allow the employer-defendant to avoid liability, but instead found the NLRB could enforce other “‘traditional remedies’ sufficient to effectuate national labor policy regardless of whether . . . backpay accompanies them.”[21]

The Hoffman Court declined to decide whether backpay, as a remedy, was per se foreclosed to unauthorized workers.[22] Critics of the Hoffman majority point out that hiring unauthorized workers would lower the employer’s cost of violating labor laws, making unauthorized workers more attractive to hire and exploit.[23] This would thereby also undermine IRCA.[24] To critics, backpay would be an appropriate remedy, not just because it compensates the employee, but because it punishes the employer.[25]

B. Courts Place the Blame on the Worker Instead of the Discriminating Employer

Though Hoffman soundly answered the question of what remedies were available to an unauthorized worker under the NLRA, it did not answer that question for Title VII.[26] Many lower courts have held Hoffman inapplicable to Title VII “because neither Title VII nor IRCA clearly expresses Congress’s intent to exclude foreign nationals without proper work visas from Title VII’s coverage . . . although [a plaintiff’s] visa status and eligibility for employment may limit her remedies.”[27]

Not all courts have found Hoffman to be irrelevant in the Title VII context. In Escobar v. Spartan Security Services, an unauthorized worker brought sexual harassment and sex discrimination claims under Title VII.[28] Subsequent to his employment and the discriminatory incidents at Spartan, Escobar obtained authorization to work in the United States.[29] However, Escobar’s lost wages occurred prior to his work authorization. The court found that, although Hoffman only addressed claims under the NLRA, the logic of Hoffman “compels the conclusion that Escobar is not entitled to backpay on his claims under Title VII.”[30]

In contrast, the Ninth Circuit rejected Hoffman’s absolute bar to backpay under Title VII.[31] In Rivera v. NIBCO, Inc., twenty-three immigrant plaintiffs alleged NIBCO’s English language skills test had an adverse effect on their employment status based on their national origin.[32] The Ninth Circuit declined to enforce Hoffman’s prohibition on backpay to Title VII.[33] The court found that, because Title VII and the NLRA have different statutory language and were enacted to serve different purposes, Hoffman was not directly applicable to Title VII.[34]

The agency that enforces Title VII, the EEOC, considers unauthorized workers to be protected by anti-discrimination laws.[35] The EEOC initially took the position that unauthorized workers are eligible for backpay and other remedies “to the same extent as authorized workers . . . .”[36] As case law evolved away from allowing backpay for unauthorized workers, the EEOC has held firm on its stance that unauthorized workers are, nonetheless, protected by the statutes the EEOC enforces.[37]

C. California Took a Stand for Unauthorized Workers

In partial response to Hoffman, states took various approaches to shield their worker protection laws from IRCA’s reach.[38] California, for example, enacted Senate Bill 1818 (S.B. 1818) to amend its Title VII equivalent, the Fair Housing and Employment Act (FHEA), to explicitly protect unauthorized workers.[39]

In Salas v. Sierra Chemical Co., the California Supreme Court refused to apply Hoffman’s prohibition on backpay against unauthorized workers who sought relief under FHEA.[40] The court examined whether Hoffman preempted FHEA.[41] Similar to the Ninth Circuit in Rivera, the California Court decided both that the damages and the private cause of action found in the FHEA differed substantially from the administrative procedures in the NLRA.[42] Thus, the differing remedial goals of the NLRA and California’s FHEA justified distinguishing Salas from Hoffman.[43]

In spite of this distinction, the California Supreme Court found that, once an employer has discovered a plaintiff’s unauthorized status, an award of backpay would conflict with IRCA.[44] In Salas, however, the employer-defendant was aware of the plaintiffs’ unauthorized status and continued to allow them to work.[45] Thus, the court held that the employer could not invoke the IRCA defense to avoid backpay damages.[46]

II. How to Incentivize Unauthorized Workers to Report Discrimination

A. Provide Damages for Irreparable Harm

Assuming Hoffman indeed bars claims for lost wages, an unauthorized worker may still recover compensatory and punitive damages.[47] Congress amended Title VII in 1991 to include awards for less tangible harms.[48] An award for these non-economic damages serves to ferret out invidious discrimination, furthering the policy behind Title VII. These irreparable damages, however, do not purport to compensate for lost wage, and thus do not obstruct IRCA’s goal of dissuading unlawful immigration.[49]

Distinguishing between the remedial purposes of backpay and awards for irreparable harm is crucial to understanding why awards of irreparable harm avoid Hoffman’s grasp. Compensatory damages under Title VII address harms stemming less concretely from a wrongful employment act, i.e. harms other than wage loss.[50] For instance, a manifestation of severe emotional injuries is enough to warrant compensatory damages.[51] Punitive damages, comparatively, punish egregious, willful discrimination by an employer; they do not purport to compensate for any individualized harm.[52]

Thus, Hoffman’s logic[53] supporting a denial of backpay under IRCA does not similarly support a denial of non-economic damages under Title VII.[54] Compensatory and punitive damages should not be viewed as similarly repugnant to IRCA because they do not purport to compensate for unauthorized work; rather, they remedy the individual and societal effects of discrimination, punishing employers for their wrongful acts.[55] Therefore, relying on compensatory and punitive damages to deter an employer from discriminating fits both the majority’s and the dissent’s views in Hoffman.[56]

B. Allow the EEOC to Seek All Types of Damages

While an employee-plaintiff’s remedies are aimed at making him or her whole, the EEOC’s core mission is to rid the workplace of discrimination.[57] By seeking monetary awards like backpay, the EEOC would dissuade employers from acting unlawfully in a way an individual plaintiff could not.[58] Thus, to achieve this mission, it is appropriate and necessary for the EEOC to seek those remedies that may be barred for unauthorized workers under current case law.

When the EEOC initiates an action in court to enforce Title VII, it does so not as the attorney of the plaintiff-employee, but on behalf of the public’s interest in eliminating discrimination.[59] Though the plaintiff-employee may be barred from a monetary remedy, it is arguable that the EEOC may not be barred from seeking that same award from the employer.[60] When the EEOC discovers a class of individuals who have suffered discrimination during its investigation of another claim, the EEOC may collect an award on the newly discovered persons’ behalf regardless of any encumbrances those individuals would have in bringing suit.[61]

IRCA does not explicitly compel the EEOC to verify a claimant’s status because the EEOC is not their employer.[62] Nor is the EEOC collecting a wage on behalf claimants; rather, the EEOC is collecting damages for a wrongful act committed against workers and society.[63] By collecting on behalf of this group, the EEOC remedies the past discrimination, punishes the employer for its act, discourages future wrongful acts by the employer, and sends a message to other employers that these actions are intolerable.[64] This serves the EEOC’s general goal of implementing Title VII.[65] It would greatly weaken Title VII if a court were to restrict the EEOC from implementing this important public policy because of one employee’s wrongful act.[66] It is also inconsistent with other cases that hold the EEOC is not barred by conflicting statutory schemes.[67] For instance, the EEOC is not barred if a plaintiff-employee signs an arbitration agreement, despite the strong public policy interest the Supreme Court finds in upholding the validity of arbitration clauses.[68]

C. Congress Must Act to Amend Title VII

In amending its employment discrimination laws, the California legislature signaled that its courts should uphold workplace protections for unauthorized workers.[69] Although Congress similarly intended that IRCA not abrogate workplace protections, the Supreme Court has so far failed to resolve conflicts between IRCA and employment laws in line with Congress’s intent.[70] It is therefore necessary to amend IRCA to make explicit Congress’s intention to leave intact Title VII protections for all workers, including those without authorization to work. While California’s S.B. 1818 worked to effect a worker-friendly result in Salas,[71] it is not enough for individual states to enact their own protections. Salas is the perfect example of how state statutes will fail to fully resolve the issues created by Hoffman. In Salas, though the California Court recognized the plaintiff’s right to recover fully, it noted not all plaintiffs could obtain similar results, because ignorance of a worker’s immigration status can still be used to invoke equitable defenses.[72]

The ultimate solution thus lies in the hands of Congress. A statute similar to California’s S.B. 1818 would make clear that all “rights and remedies” available to authorized workers are also available to unauthorized workers; any equitable escape from liability should be denied to employers.[73] This amendment would match Congress’s past attempts to protection Title VII from the Court.[74] It would further make Congress’s original intent clear: IRCA is not an excuse for employers to engage in invidious, discriminatory conduct.[75]

Further, an analogous federal statute would resolve the two lingering questions in federal courts about IRCA and Title VII. First, courts currently leave the question of whether unauthorized workers are qualified employees under Title VII unanswered.[76] This would be resolved by the language: “[a]ll protections . . . are available to all individuals regardless of immigration status who have applied for employment or who are or who have been employed . . . .”[77] This language refutes the presumption that authorized status is required for a cause of action under Title VII.

Second, the courts must answer the question: What precise remedies under Title VII does IRCA limit? This question would be answered by the language: “[a]ll . . . remedies available under [the] law . . . to all individuals regardless of immigration status.”[78] This proposal represents a normative choice, rejecting the notion that extraneous factors, like a victim’s immigration status, should excuse an employer’s discriminatory conduct.

Congress must make a deliberate value choice when determining what wage-like remedies will remain unavailable to unauthorized persons. A Congressional amendment to IRCA should only exclude the remedies of frontpay and reinstatement for unauthorized workers because these remedies would certainly contravene IRCA’s prohibition on unauthorized work. By awarding front pay and reinstatement, Congress would acknowledge the right of an unauthorized worker to continue to be paid in contravention of IRCA. This seems the most untenable option because of the Congress’s express policy dissuading unauthorized workers from remaining in the United States.[79] Because these remedies could one day be an option for an unauthorized worker who later obtains authorization, reinstatement and front pay should only be excluded to those currently unauthorized.[80]

The status of backpay under an amendment to IRCA would likely be the most contentious. Backpay serves two distinct purposes. First, backpay compensates a wrongfully terminated worker.[81] Second, backpay punishes the unscrupulous employer.[82] Thus, if Congress’s favored policy is to preclude unauthorized workers from obtaining wage-like remedies, it should prohibit backpay. If, however, Congress’s favored policy is to discourage discrimination by creating an economic disincentive for employers, it should not exclude backpay. Congress should choose to include backpay as an explicit remedy for unauthorized workers because backpay compensates for the wrongful act of the employer. But for the employer’s wrongful conduct, the unauthorized worker would have earned that pay. Congress should not punish unauthorized workers by erasing any hope of monetary compensation from a discrimination claim.

Though a statutory solution will provide the most decisive end to this debate, a resolution will be wrapped up in a larger battle in Congress for comprehensive immigration reform.[83]

III. Hoffman Enacts an Unintended Punishment on Unauthorized Workers

None of the existing judicial or legislative solutions discussed in this Article allow an unauthorized worker to access the exact remedies are available to those authorized to work. This failure to provide equal protections in employment is a latent punishment in IRCA.[84] Though Title VII seeks to protect those historically disadvantaged groups, the Supreme Court’s view of IRCA further marginalizes them.[85]

In passing S.B. 1818, California made clear its preference for protecting unauthorized workers from discrimination.[86] Congress should take similar, explicit action to prevent Title VII and IRCA from being subverted by the Hoffman Court.[87] Congress should pass an amendment to IRCA’s existing, explicit prohibition on national origin discrimination. [88] The amendement should make it clear that a person’s work-authorization status is not grounds to limit remedies under Title VII.[89] This would send a strong statement that the promises of the Civil Rights Act of 1964 truly do not depend on the condition of one’s birth, but are rooted in the principles of equal opportunity for all.[90]

†. J.D., University of Minnesota Law School; B.A., Stetson University.

[1]. This Article uses the term “unauthorized” to refer to non-citizens persons without valid work authorization and declines to use the terms “illegal” or “undocumented.” It is not a crime per se, so long as one is honest about his or her unauthorized status, to be unauthorized and to work for a wage or to apply for a job. Arizona v. United States, 132 S. Ct. 2492, 2504 (2012) (“Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.”). However, it is a crime for an employer to hire an unauthorized person or permit that person to continue work or for the unauthorized person to present that he or she is authorized to work. 8 U.S.C. § 1324a(a)(1)(A), (f)(1) (2014); 8 U.S.C. § 1324c(a) (2014). The unauthorized worker, however, is not the wrongful actor if an employer fails to verify or inquire of the worker’s status. See 8 U.S.C. § 1324c (a).

[2]. Jeffery S. Passel et al., Population Decline of Unauthorized Immigrants Stalls, May Have Reversed, Pew Research Ctr. (Sept. 23, 2013), http://www.pewhispanic.org/2013/09/23/population-decline-of-unauthorized-immigrants-stalls-may-have-reversed.

[3]. Jens Manuel Krogstad & Jeffrey S. Passel, 5 Facts About Illegal Immigration in the U.S., Pew Research Ctr. (Nov. 19, 2015), http://www.pewresearch.org/fact-tank/2015/11/19/5-facts-about-illegal-immigration-in-the-u-s/.

[4]. See Raúl Hinojosa-Ojeda, Raising the Floor for American Workers: The Economic Benefits of Comprehensive Immigration Reform, Ctr. for Am. ‌Progress (Jan. 7, 2010), https://www.americanprogress.org/issues/immigration/report/2010/01/07/7187/raising-the-floor-for-american-workers (stating that mass deportation would reduce the cumulative GDP of the United States by $2.6 trillion over 10 years “not including the actual cost of deportation”).

[5]. This is the titular “Hoffman’s Choice”: to report the discrimination or to be deported. See S. Poverty Law Ctr., Injustice on Our Plates: Immigrant Women in the U.S. Food Industry 21–41 (2010) (describing the workplace violence and harassment faced by immigrant women), https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publication/Injustice_on_Our_Plates.pdf.

[6]. Tex. P’ship for Legal Access, Employment Rights of Undocumented Workers (2014), http://texaslawhelp.org/files/685E99A9-A3EB-6584-CA74-137E0474AE2C/attachments/72479B16-CB87-4F1A-8B62-917F8FB74295/undocumented-workers-final-draft2-eff-pa.pdf.

[7]. Id.

[8]. See D. Carolina Núñez, Fractured Membership: Deconstructing Territoriality to Secure Rights and Remedies for the Undocumented Worker, 2010 Wis. L. Rev. 817, 855–60 (discussing legal strategies authorized employees have used to attempt to hold their employers accountable).

[9]. See Statement by President Ronald Reagan Upon Signing S. 1200, 1986 U.S.C.C.A.N. 5856.

[10]. 8 U.S.C. § 1324a(a)(1)(A) (2014) (making it unlawful to knowingly employ or recruit a non-citizen who is ineligible for employment in the United States).

[11]. 8 U.S.C. § 1324a(e)(4), (f)(1).

[12]. See H. Comm. on Educ. and Labor, H.R. Rep. No. 99-682(II), reprinted in 1986 U.S.C.C.A.N. 5757, 5758 (“[T]he committee does not intend that any provision of this Act would limit the powers of . . . the Equal Employment Opportunity Commission . . . in conformity with existing law, to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by these agencies. To do otherwise would be counter-productive of our intent to limit the hiring of undocumented employees and the depressing effect on working conditions caused by their employment.”).

[13]. 42 U.S.C. § 2000e-2(a) (2014). Congress later strengthened Title VII with the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071, Secs. 2, 3 (“The Congress finds . . . that additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace . . . .”).

[14]. See United Steelworkers of Am. v. Weber, 443 U.S. 193, 231 (1979) (citing U.S. Code Cong. & Admin. News 1964, at 2401).

[15]. See Univ. of Pa. v. EEOC, 493 U.S. 182, 193 (1990).

[16]. Backpay is one of the most common remedies awarded for a violation of Title VII. Though a court may consider many remedies, an award of backpay is a presumption that must be overcome. City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 719 (1978); Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975).

[17]. 42 U.S.C. § 2000e-5(g)(1) (2014); see Fogg v. Gonzales, 492 F.3d 447, 452 (D.C. Cir. 2007) (discussing backpay and frontpay remedies under Title VII).

[18]. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 151 (2002).

[19]. Id. at 151–52.

[20]. Id. at 149 (“[A]warding backpay to illegal aliens runs counter to policies underlying IRCA, policies the Board has no authority to enforce or administer.”).

[21]. Id. at 152. Contra Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 186 (4th Cir. 1998). For an overview of how Hoffman affects the Fair Labor Standards Act, see Andrew S. Lewinter, Hoffman Plastic Compounds v. NLRB: An Invitation to Exploit, 20 Ga. St. U. L. Rev. 509, 524–530 (2003).

[22]. Hoffman, 535 U.S. at 147.

[23]. Id. at 156 (Breyer, J., dissenting).

[24]. Id. at 157.

[25]. Id. at 160 (“After all, the same backpay award that compensates an employee in the circumstances the Court describes also requires an employer who has violated the labor laws to make a meaningful monetary payment.”).

[26]. E.g., Rivera v. NIBCO, Inc., 364 F.3d 1057, 1067 (9th Cir. 2004) (finding a Title VII case distinguishable from Hoffman); Iweala v. Operation Tech. Serv., Inc., 634 F. Supp. 2d 73, 79 (D.D.C. 2009); Escobar v. Spartan Sec. Serv., 281 F. Supp. 2d 895, 897 (S.D. Tex. 2003) (holding plaintiff was barred from backpay but not from reinstatement after he obtained authorized status).

[27]. Iweala, 634 F. Supp. 2d at 80; accord Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1307 (11th Cir. 2013) (holding that Hoffman does not put ICRA in conflict with the Fair Labor Standards Act); Maderia v. Affordable Hous. Found., Inc., 469 F.3d 219, 227 (2d Cir. 2006) (finding that federal immigration law does not preempt a New York state law allowing unauthorized workers to recover compensatory damages for lost wages); see Christopher Ho & Jennifer C. Chang, Drawing the Line After Hoffman Plastic Compounds, Inc. v. NLRB: Strategies for Protecting Undocumented Workers in the Title VII Context and Beyond, 22 Hofstra Lab. & Emp. L.J. 473, 499 (2005); Michael H. Leroy, Overruling Precedent: “A Derelict in the Stream of the Law,” 66 SMU L. Rev. 711, 732–33 (2013) (noting cases that agree and disagree with Hoffman).

[28]. Escobar, 281 F. Supp. 2d at 896.

[29]. Id. at 896.

[30]. Id. at 897.

[31]. Rivera, 364 F.3d at 1067.

[32]. Id. at 1061.

[33]. Id. at 1068.

[34]. Importantly, Title VII protects individuals from invidious, class-based discrimination, while the NLRA ensures fairness in labor negotiations. Rivera, 364 F.3d at 1067 (“The NLRA and Title VII are different statutes in numerous respects. Congress gave them distinct remedial schemes and vested their enforcement agencies with different powers.”).

[35]. Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws, EEOC, http://www.eeoc.gov/policy/docs/undoc.html (last visited Mar. 27, 2016).

[36]. Id.

[37]. EEOC Reaffirms Commitment to Protecting Undocumented Workers from Discrimination, EEOC (June 28, 2002), http://www1.eeoc.gov//eeoc/newsroom/release/6-28-02.cfm.

[38]. See, e.g., Solis v. SCA Rest. Corp., 938 F. Supp. 2d 380, 401 (E.D.N.Y. 2013) (“Hoffman does not preclude an award of backpay to undocumented workers.”); Zaldivar v. Rodriguez, 819 N.W.2d 187, 194 (Minn. Ct. App. 2012) (“[T]he Minnesota Supreme Court rejected the reasoning of Hoffman. Our supreme court reasoned that the state legislature is the appropriate body to determine whether an unauthorized alien who is otherwise entitled to workers’ compensation benefits should be disentitled on the basis of his or her immigration status.”) (citing Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 331 (Minn. 2003)); see also Oliver T. Beatty, Workers’ Compensation and Hoffman Plastic: Pandora’s Undocumented Box, 55 St. Louis U. L.J. 1211, 1233–34 (2011).

[39]. Cal. Gov’t Code § 12921 (West 2014); S.B. 1818, 2002 Reg. Sess. (Cal. 2002) (enacted) (“All protections rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”); see Kiren Dosanjh Zucker, From Hoffman Plastic to the After-Acquired Evidence Doctrine: Protecting Undocumented Workers’ Rights Under Federal Anti-Discrimination Statutes, 26 Whittier L. Rev. 601, 607 (2004).

[40]. Salas v. Sierra Chem. Co., 327 P.3d 797, 804–05 (Cal. 2014), cert. denied, 135 S. Ct. 755 (2014).

[41]. Id. at 800.

[42]. Id. at 804.

[43]. Id. (“Because of this critical difference between California’s FHEA and the federal NLRA, relating to the role played by lost pay awards in achieving California’s remedial legislative goal, we do not consider . . . Hoffman controlling here.”).

[44]. Id. at 811.

[45]. Id. at 812.

[46]. Id.

[47]. See Ho & Chang, supra note 2728, at 493; Cheryl Krause Zemelman, The After-Acquired Evidence Defense to Employment of Discrimination Claims: The Privatization of Title VII and the Contours of Social Responsibility, 46 Stan. L. Rev. 175, 208 (1993).

[48]. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, Sec. 2. (1991).

[49]. See Ho & Chang, supra note 27, at 493.

[50]. E.g., EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790, 797 (8th Cir. 2007) (exploring the type of non-economic damages available to a plaintiff under the Americans with Disabilities Act).

[51]. Id.

[52]. 42 U.S.C. § 1981a (2014).

[53]. Hoffman Plastic Compounds, Inc. v. NLRB. 535 U.S. 137, 150 (2002).

[54]. See id.; Convergys Customer Mgmt. Grp., 491 F.3d at 797.

[55]. Compare 42 U.S.C. § 2000e-5 (2014) (outlining remedies that make a defendant whole), with 42 U.S.C. § 1981a (authorizing punitive damages).

[56]. See Zemelman, supra note 47, at 208. Compare Hoffman, 535 U.S. at 150 (Rehnquist, C.J.) (“[The employee] cannot mitigate damages, a duty our cases require . . . .”), with id. at 160 (Breyer, J., dissenting) (“[T]he same backpay award that compensates an employee in the circumstances the Court describes also requires an employer who has violated the labor laws to make a meaningful monetary payment.”).

[57]. See Jennifer Miyoko Follette, Complete Justice: Upholding the Principles of Title VII Through Appropriate Treatment of After-Acquired Evidence, 68 Wash. L. Rev. 651, 652 (1993); Nancy M. Modesitt, Reinventing the EEOC, 63 SMU L. Rev. 1237, 1240 (2010).

[58]. See, e.g., Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 153 (2002) (Breyer, J., dissenting) (“[Backpay] reasonably helps to deter unlawful activity that both labor laws and immigration laws seek to prevent.”).

[59]. See Evangelina Fierro Hernandez, EEOC Class Action Litigation, Prac. Litigator, Mar. 2008, at 39, 40–41.

[60]. See EEOC v. Waffle House, Inc., 534 U.S. 279, 288 (2002).

[61]. Id. (“‘[T]he EEOC is not merely a proxy for the victims of discrimination . . . .’”) (citation omitted); accord In re Bemis Co., 279 F.3d 419, 421 (7th Cir. 2002) (noting the EEOC does not need to comply with class certification requirements).

[62]. Compare Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination, supra note 35 (discussing the remedies which the EEOC may seek on behalf of unauthorized employees), with Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1117 (7th Cir. 1992) (rejecting the NLRB’s effort to require an employer to pay backpay to unauthorized immigrants) and 8 U.S.C. § 1324a (2012) (making it unlawful for an employer to knowingly hire an unauthorized employee).

[63]. See Follette, supra note 57, at 667.

[64]. See Remedies for Employment Discrimination, EEOC, http://www.eeoc.gov/employers/remedies.cfm (last visited Oct. 19, 2014).

[65]. 42 U.S.C. § 2000e-5 (2014).

[66]. Zemelman, supra note 47, at 194–95.

[67]. See, e.g., EEOC v. Waffle House, Inc., 534 U.S. 279, 288 (2002) (declining to apply an arbitration limitation to the EEOC on policy grounds).

[68]. Id. at 288–89.

[69]. Cal. Gov’t Code § 12921 (West 2014); S.B. 1818, 2002 Leg., Reg. Sess. (Cal. 2002).

[70]. Compare H. Comm. on Educ. And Labor, H.R. Rep. No. 99-682, pt. 2, at 8 (1986), as reprinted in 1986 U.S.C.C.A.N. 5757, 5758 (“[T]he committee does not intend that any provision of [IRCA] would limit the powers of State or Federal labor standards agencies . . . .”), and 8 U.S.C. § 1324b(a)(1) (prohibiting employers, under IRCA, from discriminating based on “an individual’s national origin” or “citizenship status”), with McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) (allowing some backpay for a wrongfully discharged employee under the [Age Discrimination in Employment Act] even though the employer later discovered evidence of the employee’s wrongdoing which would have led to her discharge) and Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 150 (2002) (prohibiting backpay under NLRB for unauthorized employees). But see Hoffman, 535 U.S. at 157 (Breyer, J., dissenting) (stating that IRCA is not intended to undermine existing labor laws).

[71]. Salas v. Sierra Chem. Co., 327 P.3d 797 (Cal. 2014), cert. denied, 135 S. Ct. 755 (2014).

[72]. Id. at 812; cf. Avina v. Target Corp., No. 2:13-cv-07546-CAS, 2014 WL 3704544, at *7 (C.D. Cal. July 18, 2014) (applying Salas and rejecting defenses of unclean hands and after-acquired evidence to limit an employer’s liability).

[73]. Cal. Gov’t. Code § 12921 (West 2014).

[74]. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, Sec. 2. (1991).

[75]. See 8 U.S.C. § 1324b(a)(1); H. Comm. on Educ. and Labor, H.R. Rep. No. 99-682, pt. 2, at 8 (1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5758.

[76]. E.g., Escobar v. Spartan Sec. Serv., 281 F. Supp. 2d 895, 897 (S.D. Tex. 2003).

[77]. Cal. Gov’t Code § 12921 (West 2014).

[78]. Id. (emphasis added).

[79]. See Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 186–87 (4th Cir. 1998); Ho & Chang, supra note 27, at 499.

[80]. E.g., Escobar, 281 F. Supp. 2d at 896; see Ho & Chang, supra note 27, at 499.

[81]. See City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 719 (1978).

[82]. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 149 (2002) (Breyer, J., dissenting).

[83]. See Michael D. Shear, Obama, Daring Congress, Acts to Overhaul Immigration, N.Y. Times (Nov. 20, 2014), http://www.nytimes.com/2014/11/21/us/obama-immigration-speech.html.

[84]. See Zemelman, supra note 47, at 211.

[85]. Compare Civil Rights Act of 1964, Pub. L. No. 88-352 pmbl., 78 Stat. 241, with Hoffman, 535 U.S. at 153.

[86]. Cal. Gov’t Code § 12921 (West 2014); S.B. 1818, 2002 Leg., Reg. Sess. (Cal. 2002).

[87]. See Thomas J. Walsh, Hoffman Plastic Compounds, Inc. v. NLRB: How the Supreme Court Eroded Labor Law and Workers Rights in the Name of Immigration Policy, 21 Law & Ineq. 313, 329–38 (2003).

[88]. 8 U.S.C. § 1324b(a)(1); accord H. Comm. on Educ. and Labor, H.R. Rep. No. 99-682, pt. 2, at 12, (1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5761 (“The Committee . . . strongly endorses this provision and the [sic] has consistently expressed its fear that the imposition of employer sanctions will give rise to employment discrimination against Hispanic Americans and other minority group members.”).

[89]. See, e.g., H. Comm. on Educ. and Labor, H.R. Rep. No. 99-682, pt. 1, at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5662.

[90]. See Civil Rights Act of 1964, Pub. L. No. 88-352 pmbl., 78 Stat. 241 (1964).

Proscribing Prescriptions: A Legal Analysis of State Off-Label Restrictions on Medication Abortion

By jlieditors

by Kaiya A. Lyons[1]

Since its decision in Roe v. Wade, the Supreme Court has consistently upheld the right of a woman to choose to terminate a pregnancy before viability and without undue burden.[2] However, the ability of a woman to exercise that right today is as intimately connected to her economic privilege and geographic location as it was in the days preceding that landmark ruling.[3] Under the guise of protecting women from the “harms inherent in abortion,”[4] major conservative gains in the 2010 midterm elections resulted in hundreds of anti-abortion measures flooding a majority of state legislatures.[5] In the aftermath of that year’s midterm elections, the bulk of state legislatures passed an unprecedented number of harsh new restrictions on when, how, and even whether women may access abortion services.[6] Because these laws are also substantially more obstructive than their predecessors, for low-income women, the economic impact of these restrictive regulations is extremely harmful.[7]

One of the most harmful and least publicized forms of these restrictions is state regulation of the administration of medication abortion drugs. The Food and Drug Administration (FDA) first approved the use of medication to perform abortions in 2000.[8] Since the advent of this nonsurgical option, 41% of all first-trimester abortions performed by Planned Parenthood clinics nationwide are now conducted using a combination of two prescription drugs, mifepristone (sometimes referred to as RU-486) and misoprostol.[9] When properly administered, medication abortion is exceptionally safe—even more so than surgical abortions, which are especially safe in their own right.[10] Twenty years of studies on the safety and effectiveness of medication abortion have shown no long-term risks associated with the method.[11] In fact, contrary to state laws that suggest abortions are high-risk procedures, at least one study demonstrates that early surgical abortions are safer than giving birth.[12]

Despite the demonstrably low risk involved in the procedure, a majority of states have enacted restrictions on women’s ability to access medication abortion,[13] including “limitations on the types of health care providers who can give women the pills, prohibitions on prescribing the pills remotely (through telemedicine)[,] and bans on home self-administration.”[14] Thirty-seven states currently require a licensed physician to provide the pills, preventing over-the-counter or pharmacy access to medication abortion drugs; nineteen of those states further require the physician to be in the physical presence of the patient when acquiring a prescription for the drugs, essentially prohibiting the use of telemedicine.[15]

However, six states have taken a discreetly radical stance against the method by attempting to require healthcare providers to adhere to an outmoded FDA procedure for administering mifepristone,[16] known as the “on-label regimen[,]” for its placement on the drug’s packaging. Based on the “most published clinical evidence” available at the time,[17] this initial on-label regimen required a woman seeking a medication abortion to make three visits to a clinic within the first seven weeks after fertilization in order to terminate her pregnancy.[18] During the first visit, the woman would take 600 milligrams of mifepristone orally; two days later, during the second visit, she would take 400 micrograms of misopristol orally in the presence of a healthcare provider; and finally, she had to visit the clinic a third time for a follow-up appointment to verify the success of the abortion.[19]

Although clinical trials had originally shown this on-label regimen to be safe, “[a] large body of research has [since] developed on alternative dosages of the drugs and timing and route of administration to improve success rates for medication abortion.”[20] In fact, while the FDA was reviewing the on-label regimen, studies were already revealing a safer, more effective technique for administering mifepristone. Known as the “evidence-based regimen,” this new technique not only requires a lower dosage of the drug—thus reducing the risk of hemorrhage—but it also entails only two trips to the clinic, made within nine weeks of pregnancy.[21]

Based on this information, medical professionals soon began administering medication abortion according to this safer regimen—a practice known as “off-label” prescribing.[22] One year after the FDA first approved the use mifepristone, the vast majority of healthcare providers had already rejected the agency’s protocol in favor of the less risky and more affordable evidence-based regimen.[23] This modification in care decreased the costs, the number of clinic visits, and health risks associated with medication abortion, consequently expanding abortion access to women for whom the on-label regimen had been exceedingly cost prohibitive and time consuming.[24]

Abortion providers’ transition to the evidence-based regimen was not a particularly revolutionary maneuver. Prescribing drugs “off-label” is a commonplace and often-necessary practice, supported by the medical community, which can be a life-saving standard of care in cases of serious illnesses and cancer.[25] The practice is extremely common among physicians, and professional medical organizations agree that off-label prescribing may be the best practice in some instances.[26] Indeed, an estimated 25–60% of all prescriptions written in the United States are for off-label uses.[27] Moreover, national medical associations have approved of the practice, articulating their opinion that physician discretion in the provision of medical care is of the utmost importance to the efficacy of the medical field and the promotion of patient health.[28]

Off-label prescribing is not only commonplace, but it is also entirely legal. While the FDA governs the approval of pharmaceutical drugs, it does not regulate the practice of medicine, including the manner of administering prescription drugs.[29] In fact, the FDA has recognized that off-label prescribing may be the optimal standard of care for certain conditions.[30] Therefore, physicians have autonomy to prescribe those drugs approved by the FDA based on their medical judgment, subject to malpractice and informed consent laws.[31] However, as the reproductive rights community has learned, this administrative scheme has not prevented state law from prohibiting the practice in the context of medication abortion. Indeed, the discrepancy between the FDA label and medical practice gave rise to off-label prescription restrictions as a quiet, yet powerful, tactic in anti-choice lawmakers’ incremental approach to abortion regulation.[32]

Regardless of the demonstrated effectiveness, safety, and general popularity of the evidence-based regimen, six states have attempted to require providers to adhere to the outdated and harmful on-label regimen approved by the FDA in 2000.[33] Although courts have either permanently or temporarily enjoined off-label restrictions in Arizona, Arkansas, and Oklahoma, laws requiring abortion providers to adhere to the protocol authorized by the FDA are still in effect for women in North Dakota, Ohio, and Texas.[34] Not surprisingly, these prohibitions are unique state legislative actions because they are in direct contrast to health care professionals’ best medical judgments and they can have deleterious impacts.

The Ninth Circuit’s 2014 decision in Planned Parenthood of Arizona v. Humble provides an example of the disproportionately negative effects state on-label requirements have on low-income women.[35] In 2012, the Arizona state legislature approved several amendments to its abortion regulations, including a requirement that physicians prescribe medication abortion “in compliance with the protocol that is authorized by the [FDA] and that is outlined in the final printing labeling instructions for that medication.”[36] Defending the provision, the Arizona legislature maintained that the requirement would “[p]rotect women from the dangerous and potentially deadly off-label use of abortion-inducing drugs, such as, for example, mifepristone.”[37] However, the Ninth Circuit in Humble disagreed and affirmed a District Court finding that the evidence-based regimen was scientifically more advantageous to the health and safety of Arizona women.[38]

As the Ninth Circuit noted, under the on-label regimen, women are required to ingest higher doses of mifepristone, subjecting as many as 8% of women to subsequent surgical abortion procedures due to either heavy bleeding caused by the over dosage of the medication or failure to terminate the pregnancy.[39] Comparatively, fewer than 2% of women following the evidence-based regimen require such subsequent medical treatment.[40] In addition to the risk of future ameliorative surgical measures, the increased dosage and clinic visits involved in the on-label regimen significantly increased the cost of the procedure in comparison to that of the evidence-based regimen, “reduc[ing] the number of women who receive abortions, many of whom . . . are poor.”[41] Thus, through a confluence of factors—including multiple visits to clinics, increased costs, and an escalated risk of failure to terminate the pregnancy—such regulations made medication abortion an unpredictable and potentially hazardous option for low-income women in Arizona.

For women in Arizona, the Ninth Circuit’s opinion in Humble fortunately prevented the law from taking effect. However, in several states, off-label restrictions remain good law. Take, for example, the Ohio provision requiring physicians to administer mifepristone to satisfy “all the criteria established by federal law.”[42] Unlike other attempted on-label restrictions that have been enjoined by court order, because the Ohio law is still in effect, researchers from Advancing New Standards in Reproductive Health (ANSIRH) at the University of California San Francisco were able to study the real impact off-label restrictions have on the health of women seeking medication abortions.[43] In a recently-published article summarizing their research, the team compared the outcomes of Ohio patients pre- and post-law to determine the effects of the on-label regimen.[44] The findings provide further evidence that such regulations harm, rather than advance, women’s health and economic stability.[45] Compared to the outcomes of women receiving evidence-based care, women receiving on-label care were three times as likely to need additional intervention to complete the abortion.[46] Moreover, post-law patients experienced more clinic visits, more side effects (including nausea and vomiting), and higher costs in procuring their medication abortions than pre-law patients.[47]

Thankfully, many of the negative impacts of such off-label restrictions have been halted for the time being. In March 2016, the FDA updated the on-label instructions for the provision of mifepristone to reflect the evidence-based regimen commonly used in practice.[48] The new label conforms to the evidence-based regimen by “reducing the dosage to 200 milligrams from 600 milligrams, decreasing the number of visits a woman must make to a doctor to two from three, and extending the period when she can take the pill to 10 weeks of pregnancy from seven weeks.”[49] This regulatory change is good news for women’s health clinics in states with off-label restrictions, where providers may now legally prescribe medication abortion according to the evidence-based regimen.

However, new research always has the potential to improve clinical best practices. Indeed, that is the point of such clinical trials.[50] Therefore, it is possible—if not inevitable—that women in Ohio, North Dakota, and Texas will no longer be legally entitled to the most up-to-date reproductive health care in the near future.[51] This is especially worrisome for pro-choice advocates in light of current clinical trials testing the safety of pharmacy access to medication abortion, which would increase access to the drugs to women in remote areas of the country.[52] If these trials are successful, the current FDA requirement that health care providers must dispense mifepristone in a clinic, medical office, or hospital would be outdated.[53] Not only would this discrepancy in regulation and clinical best practices affect the three existing off-label restriction states, but it would also controvert the laws of thirty-seven states that currently require licensed physicians to provide medication abortion drugs.[54]

Even if the FDA responded to such evidence by updating its mifepristone prescription regimen and recommendations once again, conservative states may have a legislative fail-safe up their proverbial sleeves. A real-life example of this tactic, one day after the FDA updated its mifepristone protocol, the Arizona state legislature inserted a rider to a bill regarding pharmacies and vaccinations[55] to revise its abortion statute. If successful, this rider would have limited the provision of mifepristone to the “final printing label protocol that [was] approved by the United States food and drug administration and in effect as of December 31, 2015.”[56] Although legislators eventually struck this backdating language before final passage of the bill, Arizona’s overt attempt to circumvent the FDA signified a disquieting new anti-abortion strategy for conservative state legislatures.[57] By nearly succeeding in exploiting this potential legislative loophole, Arizona further demonstrates that as long as women’s health clinics are “required to provide care based on legislation, rather than the most up-to-date research and evidence-based practice,” access to essential health care will continue to be dependent upon a woman’s zip code and privilege.[58]

[1] J.D., University of Minnesota Law School, 2016; B.A., The George Washington University, 2013. Portions of this article were previously published in the Thurgood Marshall School of Law Journal on Gender, Race, and Justice. Kaiya A. Lyons, The Interstate Commerce of Abortion: A Constitutional Argument for the Federal Invalidation of Restrictive State Abortion Laws, 6 T. Marshall L.J. Gender, Race, & Just. 56 (2016).

[2] See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Poelker v. Doe, 432 U.S. 519 (1977); Bellotti v. Baird, 443 U.S. 622 (1979); Harris v. McRae, 448 U.S. 297 (1980); Simopoulos v. Virginia, 462 U.S. 506 (1983); Webster v. Reprod. Health Servs., 492 U.S. 490 (1989); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846 (1992) (“[T]he essential holding of Roe v. Wade should be retained and once again reaffirmed.”); Stenberg v. Carhart, 530 U.S. 914 (2000); Gonzalez v. Carhart, 550 U.S. 124 (2007); Whole Women’s Health v. Hellerstedt, 579 U.S. ___ (2016).

[3] Eric Eckholm, Access to Abortions Falling as States Pass Restrictions, N.Y. Times (Jan. 3, 2014), http://www.nytimes.com/2014/01/04/us/women-losing-access-to-abortion-as-opponents-gain-ground-in-state-legislatures.html.

[4] See Mailee R. Smith, 2013 State Legislative Sessions: Unabashedly Pro-Life and Pro-Woman, in 17 Defending Life 2013: Deconstructing Roe: Abortion’s Negative Impact on Women

(Americans United for Life ed., 2014), http://www.aul.org/wp-content/uploads/2014/03/2013-State-Legislative-Sessions-Unabashedly-Pro-Life-and-Pro-Woman-DL-2014.pdf.

[5] As a result of the 2010 midterm elections, the Tea Party and GOP controlled twenty-six state legislatures. Janet Reitman, The Stealth War on Abortion, Rolling Stone (Jan. 15, 2014), http://www.rollingstone.com/politics/news/the-stealth-war-on-abortion-20140115#ixzz2r9Rwp7PA. For a discussion of the 2010 midterm election’s effects on the antiabortion movement, see Angela Hooton & Aram Schvey, 50 States of Denial: States Deny Women Reproductive Rights, 40 Hum. Rts. 15, 15–16 (2014); John A. Robertson, Abortion and Technology: Sonograms, Fetal Pain, Viability, and Early Prenatal Diagnosis, 14 U. Pa. J. Const. L. 327, 330 (2011); Erik Eckholm, Across Country, Lawmakers Push Abortion Curbs, N.Y. Times, Jan. 22, 2011, at A1.

[6] Heather D. Boonstra & Elizabeth Nash, A Surge of State Abortion Restrictions Puts Providers-And the Women They Serve-in the Crosshairs, 17 Guttmacher Pol’y Rev. 9, 9 (2014). In fact, the record-breaking number of state antiabortion regulations enacted since 2011 substantially exceeds the total number of similar measures passed throughout the previous decade. See id.; Tara Culp-Ressler, In the Past 3 Years, We’ve Enacted More Abortion Restrictions Than During the Entire Previous Decade, ThinkProgress (Jan. 2, 2014), http://thinkprogress.org/health/2014/01/02/3112081/abortion-restrictions-2011-2013.

[7] Hooton & Schvey, supra note 5, at 17 (“We know that for low-income women in particular, the economic impact of abortion restrictions can be extremely harmful”); Boonstra & Nash, supra note 6, at 13 (“Unquestionably, abortion restrictions fall hardest upon the poorest women, the very group bearing a disproportionate burden of unintended pregnancies.”).

[8] Stanley K. Henshaw & Lawrence B. Finer, The Accessibility of Abortion Services in the United States, 2001, 35(1) Perspectives on Sexual and Reproductive Health 16, 20 (2003), https://www.guttmacher.org/sites/default/files/pdfs/journals/3501603.pdf.

[9] Planned Parenthood of Arizona, Inc. v. Humble, 753 F.3d 905, 908 (9th Cir. 2014).

[10] Susan Dudley & Beth Kruse, Safety of Abortion, Nat’l Abortion Fed’n (Dec. 2006), http://prochoice.org/wp-content/uploads/safety_of_abortion.pdf.

[11] Id.

[12] Genevra Pittman, Abortion Safer Than Giving Birth: Study, Reuters (Jan. 23, 2012, 5:16 PM), http://www.reuters.com/article/us-abortion-idUSTRE80M2BS20120123 (citing Elizabeth Raymond & David Grimes, The Comparative Study of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215, 216 (2012)).

[13] See Medication Abortion: State Policies in Brief, Guttmacher Inst. (Oct. 1, 2016), https://www.guttmacher.org/print/state-policy/explore/medication-abortion (providing a frequently updated record of state medication abortion laws) [hereinafter Medication Abortion].

[14] Ushma D. Upadhyay, We Need Abortion Laws Based on Science, N.Y. Times (Aug. 30, 2016), http://www.nytimes.com/2016/08/31/opinion/how-abortion-pill-laws-hurt-women.html?_r=1.

[15] Medication Abortion, supra note 13.

[16] Id. See Ariz. Rev. Stat. Ann. § 36-449.03(E)(6) (2012), temporarily enjoined by Planned Parenthood of Arizona v. Humble, 753 F.3d 905 (9th Cir. 2014); Ark. Code Ann. § 20-16-1504(a)(2) (West 2016), temporarily enjoined by Planned Parenthood Arkansas & Eastern Oklahoma v. Jegley, No. 4:15-cv-00784-KGB (E.D. Ark., Mar. 14, 2016); N.D. Cent. Code § 14-02.1-03.5 (West 2011); Ohio Rev. Code Ann. § 2919.123 (West 2004); Okla. Stat. Ann. tit. 63, § 63-1-729a (West 2014), permanently enjoined by Oklahoma Coalition for Reproductive Justice v. Cline, 292 P.3d 27 (Okla. 2012); Tex. Health & Safety Code Ann. § 171.063(a)(2) (West 2013).

[17] Ushma D. Upadhyay et al., Comparison of Outcomes Before and After Ohio’s Law Mandating Use of the FDA-Approved Protocol for Medication Abortion: A Retrospective Cohort Study, PLOS Med. 3 (2016), http://journals.plos.org/plosmedicine/article/asset?id=10.1371/journal.pmed.1002110.pdf [hereinafter Comparison of Outcomes].

[18] Henshaw & Finer, supra note 8, at 20.

[19] Humble, 753 F.3d at 907.

[20] Comparison of Outcomes, supra note 17, at 3.

[21] Humble, 735 F.3d at 907–08 (“This regimen requires taking 200 milligrams (instead of 600 milligrams) of mifepristone orally at the clinic, taking 800 micrograms of misoprostol two days later at home (instead of at the clinic) by dissolving the drug between the cheek and gum, and then returning to the clinic for a follow-up visit.”).

[22] Off-label prescribing can occur in three ways: “(1) prescribing for unapproved conditions, (2) prescribing for patient groups other than those approved, and (3) varying the dosage or method of administering a drug.” Amy E. Todd, No Need for More Regulation: Payors and Their Role in Balancing the Cost and Safety Considerations of Off-Label Prescriptions, 37 Am. J. L. & Med. 422, 424 (2011).

[23] Henshaw & Finer, supra note 8, at 20–22.

[24] See We Need Abortion Laws Based on Science, supra note 14.

[25] See Brief for American College of Obstetricians & Gynecologists & the American Medical Association as Amici Curiae Supporting Plaintiffs-Appellants at 15, Planned Parenthood of Arizona, Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014) [hereinafter Brief of Amici Curiae]; Mark Herrman & Pearson Bownas, Keeping the Label Out of the Case, 103 Nw. U. L. Rev. Colloquy 477, 479 (2009) (estimating that 65% of cancer patients, 70% of kidney dialysis patients, and 80% of AIDS patients receive off-label treatment).

[26] Policy H-120.988, Patient Access to Treatments Prescribed by Their Physicians, Am. Med. Ass’n, https://www.regulations.gov/contentStreamer?documentId=FDA-2008-D-0053-0031&attachmentNumber=2&disposition=attachment&contentType=pdf (confirming the AMA’s strong support for the proposition that “a physician may lawfully use an FDA approved drug product or medical device for an off-label indication when such use is based upon sound scientific evidence and sound medical opinion”).

[27] Laurah J. Samuels, Mifepristone Protocol Legislation – The Anti-Choice Movement’s Disingenuous Method of Attack on the Reproductive Rights of Women and How Courts Should Respond, 26 Colum. J. Gender & L. 316, 321 (2014) (citing Dov Fox, Safety, Efficacy, and Authenticity: The Gap Between Ethics and Law in FDA Decisionmaking, 2005 Mich. St. L. Rev. 1135, 1160 (2005)); see also Emily Bazelon, The Cleverest New Anti-Abortion Law, Slate (Sept. 10, 2013, 5:15 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/oklahoma_and_mifiprex_supreme_court_considers_law_about_fda_approved_medical.html (“The American Medical Association estimates that one-half of all prescriptions written are off-label.”).

[28] See Brief of Amici Curiae, supra note 25; Statement of Policy: Legislative Interference with Patient Care, Medical Decisions, and the Patient-Physician Relationship, Am. Cong. of Obstetricians & Gynecologists (May 2013), http://www.acog.org/~/media/Statements%20of%20Policy/Public/2013LegislativeInterference.pdf.

[29] Carol R. Berry, The Dividing Line Between the Role of the FDA and the Practice of Medicine: A Historical and Current Analysis 2–10 (1997) (unpublished Third Year Paper, Harvard Law School), http://dash.harvard.edu/bitstream/handle/1/8846812/cberry.pdf?sequence=1.

[30] U.S. Food & Drug Ass’n, Guidance for Industry: Good Reprint Practices for the Distribution of Medical Journal Articles and Medical or Scientific Reference Publications on Unapproved New Uses of Approved Drugs and Approved or Cleared Medical Devices 3 (Jan. 2009), http://www.fda.gov/OHRMS/DOCKETS/98fr/FDA-2008-D-0053-gdl.pdf (explaining that “off-label uses or treatment regimens may be important and may even constitute a medically recognized standard of care.”).

[31] Todd, supra note 22, at 424.

[32] Tara Culp-Ressler, The FDA Just Removed One of Anti-Abortion Lawmakers’ Favorite Talking Points, ThinkProgress (Mar. 30, 2016), https://thinkprogress.org/the-fda-just-removed-one-of-anti-abortion-lawmakers-favorite-talking-points-82bb58a6eb7d#.kfwp2jmz6.

[33] Medication Abortion, supra note 13.

[34] Id. See also supra note 16.

[35] 753 F.3d 905, 914–18 (9th Cir. 2014) (reversing and remanding a district court’s denial of plaintiff’s motion for a preliminary injunction and holding that plaintiffs have shown a likelihood of success on their claim that the Arizona law imposes an undue burden on a woman’s right to abortion). Contra Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 513–18 (6th Cir. 2012) (holding that the Ohio statute adhering to the FDA on-label regimen did not impose an undue burden on a woman’s ability to decide to have an abortion).

[36] H.B. 2036, 50th Leg., 2d Sess. (Ariz. 2012).

[37] Humble, 735 F.3d at 910.

[38] Id. at 908 (quoting the lower court’s finding that “there is a clear advantage to the current protocol because it may be used through the 9th week of pregnancy . . . which is significant because many women do not discover their pregnancies until approximately 49 days, which is the end of [the] 7th week . . . . Also, risk factors from medical abortions . . . have been reduced or eliminated by the current [evidence-based] regimen.”).

[39] Id.

[40] Id. (quoting the lower court’s finding that in “[t]he evidence-based regimen . . . fewer than 2 percent of women require subsequent surgical-abortion procedures).

[41] Id. at 916. The Ninth Circuit further noted that the the additional costs of the regimen were “significant and sometimes prohibitive.” Id. at 908, 916.

[42] Ohio Rev. Code Ann. § 2919.123(A) (West 2004). See also id. at § 2919.123(F)(1) (defining “federal law” as “any law, rule, or regulation of the United States or any letter of the food and drug administration of the United States that governs or regulates the use of RU-486 (mifepristone) for the purpose of inducing abortions”).

[43] Comparison of Outcomes, supra note 17.

[44] Id. at 5–8.

[45] Id. at 16–19.

[46] Id. at 3, 9.

[47] Id. at 3.

[48] Sabrina Tavernise, New F.D.A. Guidelines Ease Access to Abortion Pill, N.Y. Times (Mar. 30, 2016), http://www.nytimes.com/2016/03/31/health/abortion-pill-mifeprex-ru-486-fda.html.

[49] Id.

[50] U.S. Nat’l Inst. Health, Learn About Clinical Studies, ClinicalTrials.gov, https://clinicaltrials.gov/ct2/about-studies/learn (last visited Oct. 24, 2016).

[51] See We Need Abortion Laws Based on Science, supra note 14.

[52] Id.

[53] Mifeprex (Mifepristone) Information, U.S. Food & Drug Admin., http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm111323.htm (last visited Oct. 24, 2016).

[54] Medication Abortion, supra note 13.

[55] 2016 Ariz. S.B. 1112 § 4(E)(6) (Apr. 20, 2016 version) (showing the relevant rider language struck from the statute).

[56] Id.; see also Erik Eckholm, Gov. Doug Ducey of Arizona Signs Abortion Drug Bill that Skirts New F.D.A. Protocol, N.Y. Times (Apr. 1, 2016), http://www.nytimes.com/2016/04/02/us/gov-doug-ducey-of-arizona-signs-abortion-drug-bill-that-skirts-new-fda-protocol.html.

[57] See 2016 Ariz. S.B. 1112 § 4(E)(6), supra note 55.

[58] Comparison of Outcomes, supra note 17, at 3.

2020 Summit for Civil Rights – Opening Statements

By jlieditors

The Minnesota Journal of Law & Inequality (JLI) co-hosted the virtual 2020 Summit for Civil Rights with the Institute on Metropolitan Opportunity and Georgetown Law’s Workers’ Rights Institute on July 30 and 31, 2020. The Dean of the University of Minnesota Law School, Garry Jenkins, provided the welcome remarks to kickstart the 2020 Summit for Civil Rights. While welcoming the students, distinguished guests, speakers, elected officials, union leaders, activists and community organizers among the audience, the Dean noted the Summit has come full circle back to its home—the Summit started in the University of Minnesota Law School back in 2017. The Dean proudly recalled the University of Minnesota’s long history of training America’s civil rights leaders like Roy Wilkins, Clarence Mitchell, Whitney Young, Hubert Humphrey, Walter Mondale, and Minnesota’s current Attorney General, Keith Ellison.

The TRACED Act: Encouraging Developments in the Fight Against Robocalls

By jlieditors

by Caroline Headrick*^[1]

In the modern age, no individual with a cell phone, indeed even a landline, is immune from the threat of scam callers. If you have paid attention to your cell phone in the past year, you have likely noticed the “Scam Likely” call identification that accompanies calls from some unknown numbers. This is thanks to a bipartisan act called the TRACED ACT.^[2] Past estimates have placed scam callers at making well over a billion calls per year.^[3] In the first quarter of 2019 it was estimated that there were approximately one billion robocalls placed solely for falsely claiming to provide health insurance.^[4] This number does not account for the scam calls providing or promising other services or gifts. That number is much larger; in the first five months of 2021, smartphone users received approximately 22 billion scam calls overall, and were on track to receive approximately 52 billion throughout the course of the year.^[5]

It is easy to see these numbers as just that, numbers, and to think that we are accustomed to scam calls. The reality behind these numbers, however, is far grimmer. The Association of Certified Fraud Examiners—the world’s largest anti-fraud organization with nearly 90,000 members worldwide^[6]—notes that telephone scams are among the most prevalent scams used against the elderly.^[7] This is likely why the TRACED ACT’s legislative history shows particular concern for the effect that scam calls have on older Americans.^[8] Consequently, the Senate Communications Committee on Aging heard testimony regarding the effects of robocalls on the elderly on July 17, 2019, prior to the passing of the Act.^[9] The testimony concluded that a Voice Over Internet Provider (a service provider allowing for phone calls via the internet as opposed to a phone line) that originates 100 million calls in one month could net $50,000-$100,000.^[10] The reality is that these scams continue to be profitable, especially against the elderly, and this is of particular concern at times when the health and well-being of the elderly is compromised. In the early weeks of the Pandemic, scammers placed an estimated 1 million scam calls per week.^[11] These scammers capitalized on the Pandemic by offering face masks, at-home test kits, and health insurance—none of which were real.^[12]

The TRACED Act works to remedy the epidemic of scam calls by requiring providers to authenticate callers.^[13] Though the Act was signed into law on December 30, 2019,^[14] the continued prevalence of scam calls seems to suggest that the Act has failed to live up to its aspirations. Nonetheless, there have been two major victories from the bipartisan Act since its inception: (1) the government has prosecuted two cases against “gateway carriers,” parties who bring large numbers of fraud calls,^[15] and (2) the SHAKEN/STIR framework was officially implemented on June 30, 2021.^[16]

The SHAKEN/STIR framework requires call providers to authenticate the source of their callers, and to put that information into a database.^[17] Beginning September 28, 2021, providers need not accept calls from numbers not in the database.^[18] Smaller call providers have a deadline of June 30, 2023.^[19] So far, 1,500 providers are already in the SHAKEN/STIR database, with 200 in full compliance, and hundreds more working towards full compliance.^[20] Ideally, this framework will be a gatekeeper of sorts where providers will catch scammers and therefore not place them in the database for authentication. Without authentication, other providers need not service the scammers’ calls.^[21]

Since the Act’s passage, the government has taken several other important steps to end malicious robocalls. These include efforts to block one-ring scam calls—where scammers disconnect a call after one ring, inducing a party to call back in case the call was important^[22]— and steps to create a reassigned numbers database, with all the most recent reassigned toll-free numbers and their disconnection date, to ensure businesses are not calling reassigned numbers and consumers are not receiving unwanted calls.^[23] The FCC has also sought public comment on how to streamline the mechanisms for individuals reporting robocalls.^[24] Additionally, Congress has extended the safe harbor provision to one-ring calls, meaning that the Act provides companies robust protection from legal liability for blocking numbers using this calling method even if the numbers do not turn out to be scammers.^[25] The logic and hope is that a robust safe harbor provision ensures that providers will block calls more diligently because they are not overly impeded by potential liability.^[26]

This progress comes at a vital time as the elderly are even more vulnerable targets during health crises.^[27] It may be a couple of years before there is full compliance of the SHAKEN/STIR framework amongst all providers. However, the very existence of the TRACED Act, the increasing provider compliance with the SHAKEN/STIR database, and the additional steps taken by the government since the Act was passed—fighting one-ring scams, the creation of a numbers database, and streamlining scam call reporting—should foster some hope that scammers are being better detected moving forward, reducing the threat they pose to society at large, and especially to the oldest among us.

*Caroline Headrick, University of Minnesota Law School Class of 2022, JLI Vol. 40 Articles Editor

[1] The terms “robocall” and “scam call” are often used interchangeably and this article will do the same. However, many businesses use robocalls for legitimate purposes appointment reminders, which are not at all malicious and which this legislation does not seek to target and stop.

[2] Office of Pub. Affairs, Report Detailing Gov’t Efforts to Combat Robocalls Released to Congress, Dep’t of Just., 20-1,159 (Oct. 27, 2020), https://www.justice.gov/opa/pr/report-detailing-government-efforts-combat-robocalls-released-congress.

[3] Compare id., with Marguerite Reardon, Robocalls Are Out of Control. Is a New Mandated Technology Helping?, CNET (June 20, 2021), https://www.cnet.com/tech/mobile/robocalls-are-out-of-control-but-that-could-all-change-today/. These much larger robocall numbers come from YouMail, a private company specializing in blocking robocalls, and encompass all robocalls received. The FCC number demonstrates that individuals received over one billion calls in one type of matter alone.

[4] Office of Pub. Affairs, supra note 2.

[5] Reardon, supra note 3.

[6] Ass’c of Certified Fraud Examiners, Who We Are, https://www.acfe.com/who-we-are.aspx.

[7] Ass’c of Certified Fraud Examiners, The Fraud Examiner: Elderly Fraud, https://www.acfe.com/fraud-examiner.aspx?id=4294997223.

[8] Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act: Hearing Before the H. of Representatives, 165 Cong. Rec. H9235-02, 116th Cong. 1 (2019) (Proceedings and Debates); Hearing on S. 151 Before the Senate, 165 Cong. Rec. S3073-01, 116th Cong. 1 (2019) (Proceedings and Debates).

[9] Kate Polit, Senate Aging Committee Tackles Robocall Scams, MeriTalk (July 17, 2019), https://www.meritalk.com/articles/senate-aging-committee-tackles-robocall-scams/.

[10] Id.; see Voice Over Internet Providers (VOIP), FCC FEDERAL COMMUNICATIONS COMMISSION, https://www.fcc.gov/general/voice-over-internet-protocol-voip (explaining what a VOIP is).

[11] Tony Romm, ‘That Can Actually Kill Somebody’: Scam Robocalls Are Pitching Fake Coronavirus Tests to Vulnerable Americans, Wash. Post (Mar. 19, 2020), https://www.washingtonpost.com/technology/2020/03/19/robocalls-coronavirus-test/.

[12] Id.

[13] Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED ACT), 47 USCA § 227(b)(4); Att’y General Moody Applauds Congress for Passage of TRACED ACT, Office of Att’y Gen. Ashley Moody (Dec. 20, 2019), http://www.myfloridalegal.com/newsrel.nsf/newsreleases/495FFF31E3E05A9E852584D60051BB7E.

[14] Office of Pub. Affairs, supra note 2; Kelly Hill, Carriers Update Progress As SHAKEN/STIR Deadline Hits, RCRWireless News (July 1, 2021), https://www.rcrwireless.com/20210701/policy/carriers-update-progress-as-stir-shaken-deadline-hits.

[15] Office of Pub. Affairs, supra note 2

[16] 47 USCA § 227(b)(5)(A); Reardon, supra note 3.

[17] Att’y General Moody Applauds Congress, supra note 13.

[18] Hill, supra note 14.

[19] Reardon, supra note 3; see also 47 USCA § 227(b)(5)(A)(ii).

[20] Hill, supra note 14.

[21] Id. “As of September 28 of this year [2021], intermediate providers and terminating voice traffic providers will not be required to accept traffic from voice providers who aren’t in that database.”

[22] First Report and Order, 20 FCC Rcd. 171 (2020), https://docs.fcc.gov/public/attachments/FCC-20-171A1.pdf.

[23] Ben Stark, FCC’S Reassigned Numbers Database Becomes Final Rule, DNC.com (Mar. 28, 2019), https://www.dnc.com/news/fccs-reassigned-number-database-becomes-final-rule.

[24] Notice of Proposed Rulemaking, 20 FCC Rcd. 174 (2020); Chris Alarie, One Year Later: Tracking the Implementation of the TRACED ACT, DNC.com (Dec. 30, 2020), https://www.dnc.com/news/one-year-later-tracking-implementation-traced-act.

[25] First Report and Order, 20 FCC Rcd. 171 (2020).

[26] See Advanced Methods to Target and Eliminate Unlawful Robocalls, Call Authentication Trust Anchor, CG Docket No. 17-599, WC Docket No. 17-97, Declaratory Ruling and Third Further Notice of Proposed Rulemaking, 34 FCC Rcd 4876, 4886-88, paras. 33-34 (2019) (2019 Call Blocking Declaratory Ruling). “[T]he Commission believes that enabling voice service providers to use all available technologies and methodologies at their disposal without fear of liability is crucial to combat illegal calls.” (explaining why the benefits of a broad safe harbor provision outweigh the risks).

[27] Romm, supra note 11.

Children’s Online Privacy in the Age of Influencers

By jlieditors

By Gabrielle Maginn

It is perhaps beyond cliché at this point to make observations about the sheer quantity of content about people’s children on social media. Pictures of newborn babies, monthly milestones, funny videos, first days of school, and everyday snapshots dominate Facebook, Instagram, and specially-dedicated child-themed sites like the privacy-minded Tinybeans. It is clear that this kind of sharing by parents is an attempt to connect with family members and friends who may live far away. The community that can be built online has been particularly valuable for mothers who, because of gendered expectations, can find parenting to be more isolating than fathers. Parents share information about their children online in varying amounts and with varying privacy settings. As a result, most children have a digital footprint well before they are able to consent to or understand any of the information being shared about them online, or the possible impacts it could have on their futures. Even given this limited understanding, children as young as five or six have expressed concerns about what their parents share about them online.

Online privacy affects all parents and children, but perhaps the most concerning dynamic arises outside of the sharing of content with friends and family and within the realm of “influencer” parents who profit off of sharing their children’s images and lives with strangers. Not only do these parents often share content about their kids on their own accounts, but they also create social media accounts for their children and amass large followings. For example, former Bachelor star Arie Luyendyk and his wife Lauren created Instagram accounts for their three children before they were even born. Six days after her birth, their daughter Alessi had almost 300,000 followers on Instagram. While the Luyendyks were fairly well-known before their children were born, other influencers derive any fame they have from their kids. Family “vloggers” post videos with varying frequency (sometimes daily, usually at least two or three times per week), detailing their lives. The content of these videos varies widely—they are often mundane “day in the life” chronicles of park visits, shopping trips, or family vacations. Part of the appeal of these kinds of videos is the feeling that viewers know the families on an intimate level. Many family vloggers express that they want to share “everything” with their viewers, and show the tough side of parenting. As a result, these parents share a shocking amount of information about their young children, often detailing their medical histories, struggles in school, and even their toilet training. The children of family vloggers are often on-screen from the moment they are born—“birth vlogs” are a popular subgenre. Pregnancy is chronicled in excruciating detail, often with a focus on “gender reveals” and a highly anticipated buildup to the reveal of the child’s name. What is most clear from family vloggers’ content is that the channels would not be profitable without the existence of the children—all the videos revolve around the lives of the kids.

The law gives parents a huge amount of discretionary power over their children. While this makes sense in that we defer to parents to know what is best for their kids, this line of thinking does not comport with the potentially drastic (and largely unknown) long-term effects that could result from having your every move broadcast to millions of people since the moment of your birth. The law has recognized that kids have some control over their image, or at least the money earned from it. Passed in 1939 by the California legislature, the Coogan Act requires that 15% of the earnings of child actors be set aside in a trust, and also sets out rules for working hours, schooling, and time off for children in the entertainment industry. No such regulations exist for children in the influencer space, which means both that their parents can potentially spend all their earnings before they reach the age of maturity, and that there is no limit on how much they “work” by being filmed or posted about daily.

Despite (or perhaps because of) the uncertainty around the psychological impacts on developing children of their lives being posted for public consumption, it’s clear that some kind of regulation of the influencer industry is needed. A Coogan Act-type law for the children of influencers could ensure that young people have access to a percentage of the earnings their parents make from posting content of their lives once they reach eighteen. Like the Coogan Act, this kind of law could also establish regulations around how long and under what conditions children can be filmed or posted online for profit. A complication in constructing this kind of law specifically for online influencers is that, unlike the film industry, vloggers operate exclusively as independent contractors, and are usually the children’s parents as well as their “employers.” Therefore, enforcement of any kind of standards could prove to be very complicated. The European Union has made far more progress than the United States in regulating online privacy, passing a “right to be forgotten.” This regulation allows citizens to request that online organizations such as search engines delete their personal data (although there is no requirement that the organization must comply with the request). The U.S. seems loath to regulate powerful tech companies, but a law that allows young people to delete any content about themselves published before they reached the age of majority could go a long way towards allowing children who grow up online to regain control of their image and privacy. Ultimately, regulation of these industries and kid-focused content merely scratches the surface. Real change in children’s privacy and digital rights in the public sphere will only come from encouraging a more nuanced discussion of what it means for young people to have no agency over the information that is posted about them from birth onwards. It’s possible that this kind of discussion will only occur with an awareness of the impact of this kind of exposure on children, which will probably become apparent in the coming years as influencer children grow up and are able to speak for themselves.

The Intersection Between Antitrust Law and Labor Law – A Conversation with Professor Sanjukta Paul

By jlieditors

In this interview, staff member Jon Erik Haines engages in a conversation with visiting Professor Sanjukta Paul. Professor Sanjukta Paul is a leading thinker on the intersection between antitrust and labor law. This discussion provides an overview of Professor Paul’s work on how antitrust law limits the coordination rights of working people. This conversation reveals how the current antitrust paradigm promotes inequality in our economic system, and how different conceptions of power and competition in antitrust could promote a more democratic economy.

You can learn more about Professor Paul’s work here and here.

Review of Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System by Alec Karakatsanis

By jlieditors

Andrew Biddison*

Criminal law is a required course in law school. As a survey course, there is often a tight focus on black letter law. Unfortunately, this focus ensures that many students—and especially those who choose not to specialize in this area of law—will finish their legal education without an informed understanding of the state of the American criminal legal system or the fundamental legal, political, and economic choices that construct it. Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System by Alec Karakatsanis provides a cogent primer on these structural issues.

Usual Cruelty compiles three essays written by Karakatsanis—a former public defender and founder of Civil Rights Corps, a nonprofit impact litigation outfit based in Washington, D.C.—at various times in his legal career. While tackling a broad range of issues, three core themes emerge throughout the book. Additionally, the book offers lessons on the power of language and inspires a more holistic criminal law curriculum.

One of the book’s themes is the chasm between how the law is written and how the law is experienced. Ostensibly all laws are designed to be enforced, but Karakatsanis problematizes this assumption. A key juxtaposition here is the frequency with which laws criminalizing poverty are enforced in relation to those which could target the powerful.

An exploration of the effects of the cash bail system fleshes out this comparison. In telling the stories of individuals imprisoned for offenses like failure to pay parking tickets or driving on an expired license, Karakatsanis describes a system in which hundreds of thousands of people—many of whom have not yet been charged with a crime—languish in filthy, violent, overcrowded cells simply because they lack financial resources. Contrasted with this portrait are stories of actors who broke other laws and caused clear societal harm—from corporate polluters of the environment to police and soldiers who murdered unarmed civilians—and were neither prosecuted nor imprisoned.

The reader is forced to confront this discrepancy. Why, if we live in a system of laws, are only some laws enforced? Why are only some harms deemed criminal in the first place? Why are punishments disproportionately applied across axes of race, wealth, and other identities? To Karakatsanis, the answer is power—who holds it, and what they need to do to maintain it.

Karakatsanis begins his essay The Punishment Bureaucracy with a quote from George Eliot’s Middlemarch: “we do not expect people to be deeply moved by what is not unusual.” With this, Karakatsanis introduces the second theme: that people accept many of the horrors of the criminal system as normal because of the frequency with which they occur. The mass scale of punishment and incarceration in our society has led to this acceptance among many actors in the legal system. Our criminal legal system has led to the largest imprisonment of human bodies in the world, but it’s rare to see lawyers and members of the punishment bureaucracy confront whether that mass human caging accomplishes any of the explicit goals of the system, like public safety, justice, or rehabilitation.

Karakatsanis brings attention to this “remarkable lack of intellectual rigor” in our punishment system, where almost none of the decision makers have any clue about whether they are doing any good. A prime example of this lacking rigor is that while individual charges must be proven beyond a reasonable doubt, advocates for carceral punishment lack the most basic data, evidence, or rational explanation to show that the caging of hundreds of thousands of human beings in deplorable conditions accomplishes any rehabilitative or public safety goals. Admittedly there is no disconnect here if the end goal of the system is wholly punitive, but Karakatsanis encourages readers to consider whether a system which can only be justified by its capacity to inflict harm on people is worth having.

In discussing this topic, the author proposes that modern incarceration practices largely function as a punishment system that maintains a class-based and racialized hierarchy of power. Regardless of what the system actually aims to do, all lawyers who interact with it must approach it more critically to understand it.

The last theme, and the one most relevant to law students, is the importance of personal decisions in how we choose to interact with the punishment system. The second essay, The Human Lawyer, follows the decisions of a hypothetical law student as they struggle to navigate their life and their career. Here Karakatsanis encourages reflection on the responsibility of law students to facilitate justice and the degree to which this responsibility conflicts with the desire to achieve financial security. Karakatsanis also critiques “progressive” prosecutors and public defenders while offering insights into how each group can mitigate the senseless cruelty of our punishment system through their individual choices. Though he ultimately identifies grass-roots political agitation as the only long-term fix for the legal system, Karakatsanis illustrates through his own writing and advocacy the huge impact that an individual attorney can have.

Usual Cruelty also encourages budding legal writers to think critically about the words they use and could be a vital resource in providing students with a more holistic understanding of criminal law in the United States.

Some of the terms used by Karakatsanis—such as “human caging” and “punishment bureaucracy”—may seem unusual or even extreme. With these linguistic choices, he describes and demonstrates the importance of how we talk about issues of crime and punishment. For example, the phrase “criminal justice system” is just as loaded and politicized as the phrase “criminal injustice system.” As the former has been widely normalized, some lawyers and policymakers have refrained from considering the effects of that linguistic choice. To describe a system rife with prosecutorial misconduct, police violence and abuse, judicial conflicts of interest and corruption, and a frequency of human caging unseen in human history as “just” is to make a political statement. The phrase “criminal justice system” may obfuscate or justify the current state of our system, making the work of those who seek a better criminal legal system that much harder.

Law students can apply this thoughtfulness about language to their own work. The words used in Notes, academic papers, and even blog posts produced during law school have power and should be put under similar levels of scrutiny by those choosing them.

Usual Cruelty also makes an excellent supplement to law school curricula and could help generate discourse about crime, punishment, and justice. While some criminal law curricula touch on issues like sentencing guidelines and prosecutorial discretion, attention to the structural issues discussed in this book—which are clearly relevant to the study and practice of criminal law—is lacking. Unfortunately, in a survey course it would be impossible to delve into the actual criminal system with the same level of detail in which students examine the nuances of homicide statutes.

This book, however, can serve as a primer and an exhortation to do that deep analysis, either in further classes on criminal law or on one’s own. Totaling less than two hundred pages and with the publisher offering free copies for law schools—with matching copies going to incarcerated individuals—it is neither time intensive nor expensive to read. Professors and administrators should consider recommending it as supplementary reading in criminal law and adjacent courses or in more general law school orientation programs. Courses more intimately touching on the machinations of the criminal legal system could also seriously benefit from directly assigning this text. Regardless of whether the individual reader agrees with Karakatsanis’ theories, the excellent bibliography provides resources to generate and sustain productive debates.

Exposure to texts like Usual Cruelty that challenge the reader and tell hard truths is necessary to produce a generation of lawyer leaders capable of understanding the systems we inhabit and bettering them.

*J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

Covid-19 in Prisons: Human Rights Violations and Inmate Exploitation

By jlieditors

Heather Chang*

The outbreak of the Covid-19 pandemic in the Spring of 2020 required unprecedent changes. While business and individuals have adapted their policies and behaviors to reflect health and safety recommendations, the prison system remains rigid and dangerous.

As of January 12, 2021, The Marshall Project reports that at least 343,008 prisoners tested positive for and 2,114 prisoners died of Covid-19. With reports across the country of inadequate medical supplies—to test, treat, and prevent the spread of Covid-19—and inadequate and cruel social distancing methods, the prison system’s failure to adapt its policies not only violates inmates’ human rights but also highlights the exploitation of inmates by corporate entities.

Human Rights Violations & The Eighth Amendment: Inadequate Healthcare and Solitary Confinement

Prisons currently lack the medical supplies and resources to test, treat, and prevent the spread of Covid-19. Further, prisons have begun using solitary confinement as a method of enforcing social distancing. This failure to provide adequate healthcare and the usage of solitary confinement may violate the Eighth Amendment.

The Eighth Amendment forbids the infliction of “cruel and unusual punishment.” The Supreme Court has established that prisons must provide sufficient medical care for incarcerated persons and has further held that “deliberate indifference” to serious medical needs violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Court has also stated that that prison officials may be “liable for denying humane conditions of confinement . . . if they know that inmates face substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825 (1994).

The prison system may have demonstrated this “deliberate indifference” by knowingly failing to provide adequate healthcare and continuing to house inmates in these unsafe conditions. In fact, several cases arguing this point have already been resolved in favor of prisoners. Cameron v. Bouchard, No. CV 20-10949, 2020 WL 2569868 (E.D. Mich. 2020); Thakker v. Doll, 451 F. Supp. 3d 358 (M.D. Pa. 2020); Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020). As such, these actions may constitute “cruel and unusual punishment” in violation of the Eighth Amendment.

Further, usage of solitary confinement may also violate the Eighth Amendment. Reports in June 2020 found the number of state and federal inmates in solitary confinement increased dramatically from 60,000, before the Covid-19 pandemic, to 300,000. Given the lack of adequate medical supplies, those in solitary confinement often remain for extended, indeterminate periods of time. In July 2020, Forbes reported that New York inmates in the FCI Otisville satellite camp “has had its minimum-security camp inmates locked up in cells since mid-June, already twice the United Nations standard for cruel and inhumane” punishment.

Forbes further found that “[d]uring lockdowns, prisoners can’t collect mail, medications or meals, and there’s often not enough staff to pick up the slack.” And that inmates are “locked in small cells for 23 hours each day of the week and 24 hours on the weekend.” These practices may violate the Eighth Amendment’s prohibition of cruel and unusual punishment.

Although the Supreme Court has found the general practice of solitary confinement does not violate the Eighth Amendment, the Court stated that sentencing inmates to indeterminate periods of solitary confinement, coupled with prison conditions that pose a severe risk to their health and safety, constitutes cruel and unusual punishment. Hutto v. Finney, 437 U.S. 678 (1978). Given the lack of adequate Covid-19 medical care, and the prolonged, unspecified periods spent in solitary confinement, these Covid-19 pandemic confinement policies may violate the Eighth Amendment.

What Can Be Done?

Prisons must adapt their policies. In the short term, prisons can reduce their populations to help prevent the spread of Covid-19 and to maintain adequate treatment supplies.

Human Rights Watch (HRW) has published recommendations for adhering to Covid-19 health and safety standards, focused on decreasing the prison population. These recommendations aim to reduce prison populations so that “(1) all people in the facilities can engage in social distancing . . . without resorting to punitive conditions that resemble solitary confinement” and (2) facilities have “enough available space to put all people who are ill or close contacts of those who are ill in non-punitive isolation or quarantine with access to appropriate medical care.”

HRW suggests four categories of inmates for early release: (A) for inmates nearing the end of their sentence, (B) for the at-risk population, (C) for those held pretrial, and (D) for those jailed for technical violations of probation. HRW specifies that these types of inmates should not be released early if: (i) they are accused of a serious offense, (ii) if their release would pose a specific and known risk of harm to others, or (iii) they are a known risk to deliberately flee the jurisdiction to avoid prosecution.

Adoption of these HRW suggestions would not only address immediate healthcare concerns but also help diminish the exploitation of inmates, a long-standing issue made even more apparent by the Covid-19 pandemic.

Private corporations have used prison labor as a “cheap alternative to foreign outsourcing” for several decades. Inmates have provided goods previously to big name corporations, such as Starbucks, Victoria’s Secret and Whole Foods, and have been poorly compensated, to say the least—with the average wage being between 86 cents and $3.45 per day and at least five states paying nothing at all. As of May 2020, approximately 4,100 corporations profit from the American prisons and jails.

Further (and particularly egregious), nearly every U.S. state has utilized inmate labor in response to the Covid-19 pandemic: inmates are currently disinfecting contaminated hospital laundry and cleaning supplies, manufacturing protective safety equipment, and digging mass graves. Given the lack of adequate healthcare in prisons currently, this practice of using inmates as a source of cheap labor both generally and to combat the Covid-19 pandemic is, at its best, incredibly unfair, and, at its worst, a modernized system of slavery—a sentiment parallel to those criticizing Nixon’s War on Drugs.

Given that HRW suggestions would help enable prisons to ensure adequate treatment and prevention of Covid-19, without utilizing solitary confinement, and help reduce exploitation of inmate labor in the short term, these standards should be adopted. However, while this short-term solution provides inmates with immediate relief, Congress must implement long-term prison reform to address structural issues with labor exploitation and racial inequality.

*J.D. Candidate (2022), University of Minnesota Law School

Locking the Door to the Country on the Way Out: The Trump Administration’s Final Attempt to Eliminate Protections for Asylum Seekers

By jlieditors

By Katie McCoy, staff member for Vol. 39 of the Minnesota Journal of Law & Inequality

Restricting immigration to the United States remained one of the Trump administration’s main priorities, even as his days in office waned. Dismantling the existing asylum system was a flagship issue for the Trump administration. Since taking office, the Trump administration issued policy after policy designed to upend protections for asylum seekers—vacating prior precedent to bar domestic violence-based asylum claims, forcibly separating over 2,000 families, and requiring many asylum seekers to remain in Mexico to fight their asylum case, among others. The National Immigrant Justice Center provides a detailed list of the nonstop efforts by the Trump administration to effectively end asylum protections.

Treatment of asylum seekers has become so abhorrent that the Canadian Supreme Court revoked the United States’ status as a “safe third country.” The Canadian Supreme Court condemned the United States for consistently flouting international law by criminalizing, detaining, and deporting asylum seekers to countries where their lives are in danger.

Even after losing the election, the Trump administration rushed to complete all remaining destructive policies on its immigration agenda. One of the most alarming policies to come out of the lame-duck presidency would eviscerate existing asylum law if implemented. On December 11, 2020, the Department of Homeland Security and the Executive Office of Immigration Review published a rule, titled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80274 (Dec. 11, 2020) (“the rule”). Opponents have dubbed this rule “the death knell” to asylum law and protections for vulnerable migrants. The 419-page rule was scheduled to take effect on January 11, 2020, just nine days before President-elect Biden’s inauguration.

I. The Rule Would Make It Nearly Impossible to Win Asylum, Defying Domestic and International Law

The rule would erect numerous insurmountable hurdles for asylum seekers that expressly violate national and international law. In violation of basic due process, the rule denies asylum seekers the opportunity to have their claim heard by an immigration judge. Additionally, the rule requires adjudicators to consider new “discretionary” factors, which, if not met, bar applicants from asylum absent exceptional circumstances. Among these discretionary factors is a bar to asylum for those who traveled through a third country en route to the United States without first requesting asylum in those countries. Notably, two district courts struck down this provision when implemented earlier last year. The rule also bars asylum for those who fail to enter through a designated port of entry. This provision violates Article 31 of the Refugee Convention of 1951. Although the United States is not a signatory to the Refugee Convention itself, it is party to the later 1967 Protocol to the Convention, and Congress has codified these protections into domestic law through the Refugee Act of 1980. See 8 U.S.C. § 1158 (permitting noncitizens to request asylum regardless of the manner through which they enter the United States).

Should asylum seekers manage to overcome these substantial hurdles, the rule would further exclude anyone fleeing gender- or gang-based violence from winning asylum. The rule would also redefine key terms incredibly narrowly and contrary to longstanding precedent, such as “political opinion,” “persecution,” and “particular social group.” See, e.g., Fatin v. I.N.S., 12 F.3d 1233, 1242 (3d Cir 1993) (finding “feminism” falls under the definition of “political opinion”); In re O-Z- & I-Z, 22 I. & N. Dec. 23, 26 (holding that persecution must be measured by the cumulative harm experienced by the petitioner); Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985) (emphasizing the importance of fact-specific determinations for particular social group analysis).

Practitioners speculate that most individuals who previously received asylum grants would be barred if they were to request asylum under these new regulations. Without the lifesaving protection of asylum, these individuals would likely have been deported to the country they fled and back in harm’s way. Deportation, under these circumstances, is often a death sentence.

II. Prospects for Blocking the Rule and Safeguarding Asylum Protections

In response to the severe harm this rule poses, several organizations filed a lawsuit on December 23, 2020, requesting a temporary restraining order that would prevent the rule from taking effect. Four immigrant rights organizations—Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrant Rights Coalition (“plaintiffs”)—argued that the rule would prevent the organizations from carrying out their organizational mission, as it destroys access to asylum for the vulnerable individuals they serve. The irreparable harm the rule would cause, they argued, therefore merited a temporary restraining order to preserve the status quo.

In addition to violating existing domestic and international law mandates protecting asylum seekers, plaintiffs argued that the provision violates the Administrative Procedures Act. Despite receiving nearly 90,000 comments in response to the proposed rule, the final published rule made minimal changes. The lack of engagement with the comments signaled a failure to adequately address and respond to the voluminous concerns raised with the proposed rule.

In a hearing before U.S. District Judge James Donato on January 7, 2020, the Judge focused on Acting Secretary of the Department of Homeland Security Chad Wolf’s unlawful appointment rather than delve into the nuance of the rule. Siding with four U.S. district courts, Judge Donato again found Wolf lacked the necessary authority to promulgate the rule. Judge Donato expressed his frustration at the government: “You have argued this four times and you rolled snake eyes.” Judge Donato continued, “You don’t keep peddling the same bucket of fish until someone buys it.”

On January 8, 2020, Judge Donato ordered a national preliminary injunction on the rule. The order finds the plaintiffs likely to succeed in establishing that the proposed rulemaking was done without authority of law. With the rule effectively blocked from implementation, the Biden-Harris administration may decide whether to appeal the preliminary injunction or withdraw the proposed rule. This victory provides momentary relief for asylum seekers and immigration advocates, who will now turn their attention to advocating for broader immigration reform.

2020 Summit for Civil Rights – The State of Multi-Racial America and Black Power

By jlieditors

In “The State Of Multi-Racial America And Black Power” panel, AG Ellison began his keynote speech by acknowledging the efforts of the common people protesting in the streets every day “bringing forth justice, freedom, [and] accountability in [the criminal justice] system.” Ellison remarked that in order to ensure that Black lives matter Black Power is necessary and inevitable. The session, moderated by Prof. Myron Orfield of the Institute on Metropolitan Opportunity and the University of Minnesota Law School, also included other renowned and diverse panelists—Activist and Author Bill Fletcher, Jr., Councilwoman Davida Russell, and Rev. James Woodall. The panel commented on the looming national elections and surveyed both the important role of the Black electorate and rise and fall of populist insurgencies of both the left and right. The panel noted the overlap between the labor and civil rights movements, and exhorted them to come together once again to achieve the remarkable social, political and legislative achievements of the 1960s.

Avoiding Atkins: How Tennessee is on the Verge of Unconstitutionally Executing an Individual with Intellectual Disabilities

By jlieditors

Image Courtesy of Attorneys for Pervis Payne

AVOIDING ATKINS: HOW TENNESSEE IS ON THE VERGE OF UNCONSTITUTIONALLY EXECUTING AN INDIVIDUAL WITH INTELLECTUAL DISABILITIES

Daniel Kiel[1]

Avoiding Atkins.pdf

If the state executes an intellectually disabled individual, but no one knows of the intellectual disability, has the state violated the constitution? The prospect of executing a human being that the law protects from such a fate simply because no one knows of an intellectual disability demonstrates the danger of invoking the ultimate punishment in the American criminal system

That such an occurrence could occur ought to militate toward flexibility from courts in determining intellectual disability before anyone is put to death. Yet, the clock ticks toward this very outcome in Tennessee, not because no one actually knows of the individual’s intellectual disability, but because no one legally knows. Despite the evolving legal standards for determining intellectual disability, no court has yet provided a hearing in which this individual could make the case that he is constitutionally ineligible for the death penalty. If his execution proceeds absent such a determination, the state runs the risk of flagrantly violating the standards of both the Tennessee Constitution and the United States Constitution, each of which have been interpreted to prohibit execution of individuals with intellectual disabilities.[2]

This essay provides a brief overview of the evolving standards at the intersection of intellectual disability and the death penalty, before using the Tennessee case of Pervis Payne to demonstrate the risk that a potentially unconstitutional execution proceeds. Payne’s case is a labyrinth in which the doors to proving intellectual disability have remained closed at each turn. Though this case is unique, the danger is not – if Tennessee and other states do not close the hole in which Payne has fallen, where he has been denied even a hearing on his claim, then the prohibition on execution of the intellectually disabled, recognized under the federal constitution in Atkins v. Virginia in 2002, will be but a pyrrhic holding. The essay will close with potential ways to fill the hole for each of the three branches of government. As the Tennessee Supreme Court has acknowledged, the state has “no business executing persons who are intellectually disabled,”[3] a statement it repeated in Payne’s own case.[4] Yet, without intervention, this is precisely what could happen if Payne’s scheduled execution proceeds.[5]

I. Evolving Standards of Decency

Since 1986, the law with regard to the execution of individuals with intellectual disabilities has evolved in three successive waves. In the first wave, the “sentencing wave,” which lasted from approximately 1986 through 2002, many states (and the federal government) enacted prohibitions on sentencing such individuals to death. However, these prohibitions left open difficult questions that would be addressed in subsequent waves. While prohibitions on sentencing stopped new individuals with intellectual disabilities from being added to death row, it took a second wave – the “execution wave,” which culminated with the Atkins decision in 2002 – to prohibit any execution of an individual with intellectual disability. From the “sentencing wave,” individuals with intellectually disabilities were ineligible for the death penalty in most states; from the “execution wave,” all executions of such individuals were deemed unconstitutional. However, states continued to struggle with defining which individuals qualified for this constitutional protection. Thus, in the third wave – the “evidentiary wave,” unfolding after Atkins – courts confronted what proof would be required for a defendant to prove intellectual disability.

A. The Sentencing Wave

In June 1986, the execution of Jerome Bowden in Georgia triggered national outrage at the execution of individuals with intellectual disabilities.[6] Bowden, whose execution was briefly stayed amidst public protests over putting an individual determined to have an IQ of 65 to death, was executed on the grounds that despite his disability, Bowden understood the nature of his crime.[7] Within two years, Georgia prohibited such executions, and other states followed.[8]

In 1990, Tennessee enacted a statutory prohibition on sentencing such individuals to death, one of the earliest states to participate in the sentencing wave. In discussing the bill, state senators argued that “it’s just not proper in a civilized society for the state to be in the business of executing…those who are mentally retarded” and “I just don’t believe mentally retarded people ought to be electrocuted.”[9] The statute stated: “Notwithstanding any provision of law to the contrary, no defendant with mental retardation at the time of committing first degree murder shall be sentenced to death.”[10] Proof of intellectual disability would be judged by three elements:

(1) Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below;

(2) Deficits in adaptive behavior; and

(3) The intellectual disability must have been manifested during the developmental period, or by eighteen (18) years of age.[11]

At least in Tennessee, the prohibition was forward looking – it did not provide an obvious mechanism for individuals already sentenced to death to claim intellectual disability in post-conviction proceedings. The statute did, however, provide a starting point for determining the proof that would need to be provided in such a proceeding: an IQ of 70 or below manifested prior to the age of 18.

B. The Execution Wave

The 1990 Tennessee statute was prompted as much by the outrage over the Bowden execution in George as by a 1989 Supreme Court decision.[12] In Penry v. Lynaugh, the Court considered, inter alia, whether the Eighth Amendment categorically prohibited the execution of individuals with intellectual disabilities.[13] Though Congress had recently prohibited such sentences, a fractured Court determined that there was no national consensus on the topic and there was therefore no constitutional prohibition.[14] The Court noted that only two states (Georgia and Maryland) had statutory prohibitions at the time,[15] though it acknowledged the possibility that growing public sentiment against the practice might manifest itself in further legislation.[16] That is precisely what happened in Tennessee.

While Penry answered the Eighth Amendment question in the negative, litigants continued challenging the execution of individuals with intellectual disabilities in state courts and pushed for reversal of Penry itself. That effort bore fruit in the early 2000s. In Tennessee, for example, defendant Heck Van Tran brought suit, arguing both that the state’s sentencing ban allowed reopening of post-conviction proceedings for a determination of intellectual disability and that the execution of individuals with intellectual disability violated Article I, section 16 of the Tennessee Constitution.[17] Though the Tennessee Supreme Court rejected the argument that the intellectual disability statute could be applied retroactively, it held that execution of intellectually disabled individuals violated evolving standards of decency, was grossly disproportionate, and served no valid penological purpose, and therefore violated the state constitution.[18]

The court identified the “dramatic transformation” of the legislative landscape since Penry[19] as well as the judgments of numerous professional organizations as dictating its conclusion that “executing the mentally retarded is considered cruel and unusual punishment by numerous facets of contemporary society.”[20] In addition, the court outlined the reasons why execution would be improper in such cases, citing concerns about culpability and blameworthiness as well as the individual’s diminished ability to assist in his own defense.[21] While the court’s conclusions ran contrary to the Penry decision, the Tennessee court pointed out that the Supreme Court had recently granted certiorari to review Penry, in a case called Atkins v. Virginia.[22]

A year later, the U.S. Supreme Court confirmed the Tennessee court’s suspicion in Van Tran that Penry would not last. In Atkins, the Court reversed its Penry conclusion on much the same grounds as Tennessee’s Van Tran court had reached its holding that the execution of intellectually disabled individuals was unconstitutional.[23] Writing for the Court, Justice Stevens traced the history of legislative prohibitions on death sentences for the intellectually disabled and rejected that executions in such circumstances served the purposes of deterrence or retribution.[24] Atkins confirmed nationally what Van Tran had determined in Tennessee: the execution of individuals with intellectual disabilities was unconstitutional. The difficulty, acknowledged in Atkins itself, would be in determining who qualified as intellectually disabled.[25]

C. The Evidentiary Wave

In Tennessee, the intellectual disability statute provided the starting point for determining whether a defendant qualified as intellectually disabled: the IQ score.[26] However, with time, advocates convincingly argued that a fixed IQ threshold (in most cases, 70) would not definitively capture all the characteristics that militated against executing a person with diminished intellectual capacity. Specifically, courts began to confront cases in which defendants sought to introduce evidence of a “functional intelligence quotient” that would include not only an IQ score, but also expert testimony as to the individuals’ functional disability.

The question reached the Tennessee Supreme Court in 2011 in Coleman v. State.[27] In Coleman, the court acknowledged the wide diversity of conditions that could lead to intellectual disability[28] and the need for broad evidentiary admissibility to avoid the prospect of unconstitutionally executing an individual intended to be protected by the constitutional prohibitions in Van Tran and Atkins.[29] The court concluded that trial courts considering intellectual disability “may receive and consider any relevant and admissible evidence regarding whether the defendant’s functional I.Q. at the time of the offense was seventy (70) or below.”[30] Thus, Coleman clarified in 2011 that courts ought err on the side of admissibility in considering evidence of intellectual disability in this context.

As with Atkins, the Supreme Court quickly followed suit. In 2014, in Hall v. Florida, the Court evaluated Florida’s evidentiary rules for proving intellectual disability, which foreclosed admission of evidence if defendants were shown to have an IQ score above 70.[31] Such a rigid rule, the Court concluded, created an “unacceptable risk that persons with intellectual disability will be executed” and was therefore unconstitutional.[32] The Court reiterated the concern from Atkins that defendants who were intellectually disabled were particularly vulnerable to “special risk of wrongful execution” due to greater potential for false confessions and diminished ability to serve as a compelling witness or aid to their lawyers.[33] Insisting that “intellectual disability is a condition, not a number,” the Court held that when disability falls within a test score’s margin of error, a defendant must constitutionally be able to present additional evidence of intellectual disability.[34]

Thus, in the course of 30 years following the execution of Jerome Bowden in Georgia, first the sentencing of intellectually disabled individuals to death became unlawful in many jurisdictions, then the execution of such individuals became unconstitutional. In addition, states like Tennessee and ultimately the U.S. Supreme Court determined that defendants wishing to make an argument of intellectual disability constitutionally must be given an opportunity to provide a broad range of evidence, particularly in close cases. Otherwise, the danger of an execution inconsistent with society’s (and the Constitution’s) understanding of appropriate punishment would persist. As standards of decency evolved, so had the law.

II. Payne’s Labyrinth

Pervis Payne was sentenced to death in 1988 after being convicted of a gruesome double murder despite sustained claims of innocence.[35] At the time of his sentencing, there was neither a statutory nor a constitutional prohibition on the sentencing to death or execution of individuals with intellectual disabilities. However, even as the law shifted, Payne has not yet had an opportunity to raise the claim though he has adduced evidence to demonstrate that he meets the criteria of person that statutes like Tennessee’s intellectual disability ban and cases like Van Tran and Coleman (in Tennessee) and Atkins and Hall (nationally) intended to deem ineligible for execution. That evidence has yet to be considered in court, the result being that in early 2020, the state set Payne to be executed on December 3,[36] though Governor Bill Lee granted a temporary reprieve amidst the COVID-19 pandemic.[37] At each stage in his post-conviction efforts, Payne has faced locked doors.

A. 1988-2001

For years following his conviction, Pervis Payne has pursued a variety of post-conviction relief, ranging from a challenge to the evidence utilized to support his sentence of death that went all the way to the U.S. Supreme Court in 1991[38] to still ongoing requests for DNA testing on various and newly-discovered pieces of evidence Payne hopes will support his claim of innocence.[39] At the time of his 1988 sentencing and through the passage of Tennessee’s intellectual disability statute, there was no basis for bringing a claim that he was ineligible for the death penalty due to intellectual disability. During that period the law was not on his side; in Penry, the Supreme Court had explicitly held that execution of the intellectually disabled did not violate the Eighth Amendment.[40]

There may have been some glimmer of hope on the issue following Tennessee’s 1990 enactment of a ban on the sentencing of intellectually disabled individuals to death. However, the statute was not retroactive on its face and provided no obvious mechanism for individuals to bring such a claim. The Tennessee Supreme Court did not face the issue directly until its Van Tran decision in 2001. There, the court relied on the “well-settled rule that statutes are to be applied prospectively in the absence of clear legislative intent to the contrary.”[41] Though the court acknowledged some discussion in the legislative debates about the topic and concluded that the question of whether the statute could be applied to sentences issued prior to its enactment was close, it ultimately held that defendants could not bring a retroactive claim of intellectual disability to prevent execution under the intellectual disability statute.[42] Thus, from the time of his sentence through 2001, Payne had no grounds upon which to argue intellectual disability to obtain relief from his sentence.

B. 2001-2011

While the Van Tran court ruled that Tennessee’s intellectual disability statute did not provide for retroactive grounds for relief, it also declared the practice of execution of intellectually disabled individuals to run afoul of Tennessee’s constitution. This new rule, the court held, broke new ground sufficient to justify retroactive application to criminal cases on collateral review.[43] Under Tennessee law, such retroactive application applied where the new rule enhanced “the integrity and reliability of the fact finding process of the trial.”[44] The court determined that its conclusion regarding execution of the intellectually disabled did so and ordered the trial court to make a determination on Van Tran’s claim.[45] The court identified the same standards found in the intellectual disability statute – including the requirement of a functional IQ of 70 or below[46] – as the standard for the trial court to apply.[47] While the court acknowledged that such a remand was procedurally unusual, it identified the alternative as unacceptable: “the only remaining alternative in this case would be that one potentially mentally retarded person may be executed before the issue is reviewed.”[48]

Thus, Van Tran created a change in law that would allow any individuals sentenced to death – including those, like Payne, who were sentenced prior to the passage of the intellectual disability statute – to challenge their eligibility for the sentence based on intellectual disability. Under Tennessee law, such individuals faced a one-year statute of limitations to reopen post-conviction proceedings based on new and retroactive constitutional rights.[49] Theoretically, Payne had a year in which to seek to reopen his case, beginning December 4, 2001, the date of the Van Tran decision. He did not. However, an understanding of the evidence of Payne’s intellectual disability explains why.

The evidence of Pervis Payne’s intellectual disability rests primarily on a series of IQ tests administered over his lifetime. The raw scores on these tests are as follows:

Date Payne’s age Score

1976 9 69

1987 20 78

1996 29 78

2010 43 74[50]

Thus, only on one of the administrations of these tests did Payne score below the threshold of 70 required for a determination of intellectual disability. The intellectual disability statute specifically identified 70 as a cut off score; the Van Tran court incorporated that definition into its holding in 2001 – thus, during the one-year limitations period following Van Tran’s new rule, Tennessee law appeared to set 70 as a rigid requirement for a determination of intellectual disability.[51] That appearance was confirmed in 2004, when the Tennessee Supreme Court held that a raw IQ test score above 70 may be sufficient, on its own, to disprove intellectual disability.[52]

It appears, therefore, that Payne’s decision to focus his post-conviction efforts elsewhere, including on obtaining evidence that would support his claims of innocence (and thus invalidate his sentence in its entirety, whereas an intellectual disability claim could only commute the sentence to life imprisonment), was entirely justified. On the law as it existed from December 4, 2001 until December 4, 2002, the post-Van Tram statute of limitations, Payne could not have been adjudicated intellectually disabled.[53] If he had sought review during that one year period, he very likely would have been deemed fit for execution given the standards of the time. The law defining intellectual disability remained the same until Coleman in 2011.

C. 2011-present

In recognition of the inadequacy of fixed, rigid requirements for determining intellectual disability, the evidentiary wave of reform opened opportunities for broader evidence to be provided by individuals claiming to be ineligible for execution. In Coleman, the Tennessee Supreme Court focused on the “functional” in the statutory definition of intellectual disability, enabling expert testimony to support a claim of intellectual disability even where IQ scores were above 70. This was precisely the type of evidence Pervis Payne had available. The Coleman decision was issued April 11, 2011; on April 4, 2012 – within the one-year statute of limitations for filing a request for post-conviction relief due to a change in law, Payne filed a motion to reopen his case.

In support of his motion, Payne included an affidavit of Dr. Daniel J. Reschly of Vanderbilt who utilized Payne’s history of testing and performed an independent evaluation of Payne’s functional intelligence. In Dr. Reschly’s clinical judgment, Payne’s functional intelligence was clearly at or below 70 and Payne had “significant deficits in adaptive behavior due to substantial limitations in” conceptual and practical skills.[54] As these conditions were present before the age of 18, Dr. Reschly concluded that Payne met the statutory definition for intellectual disability.

However, during the pendency of Payne’s request to reopen post-conviction relief, the Tennessee Supreme Court determined that its 2011 Coleman decision regarding the types of evidence defendants might rely on to prove intellectual disability was not a new rule that must be available to defendants retroactively.[55] Thus, unlike Van Tran, which opened a one-year statute of limitations (but could not help Payne because of the more limited evidentiary standard for intellectual disability), Coleman, a case that could have helped Payne, did not open a similar one-year window to seek relief. The door to his offering proof of intellectual disability was closed again.

Given this circumstance, Payne adjusted his litigation strategy, adding various other claims in an effort to figure some way to have his claim adjudicated on the merits. In response, the state did not argue the merits of Payne’s claim of intellectual disability; rather, the state argued that the various avenues through which Payne sought to have his claim heard were procedurally inappropriate. All of Payne’s claims were rejected at the trial court and also by the Tennessee Court of Criminal Appeals, albeit over a dissent.[56]

Simultaneous to the renewed post-conviction effort, Payne also pursued a declaratory judgment action in the state’s chancery court, arguing for a declaration that he qualified as an individual with an intellectual disability. This effort was similarly dismissed, not on the grounds that Payne was not disabled, but because the state argued that the chancery court lacked subject matter jurisdiction and that the suit was barred by the doctrine of sovereign immunity.[57]

Ultimately, the Tennessee Supreme Court heard the post-conviction case in 2016 and systematically rejected each of Payne’s arguments. Payne sought to use the state’s error coram nobis statute[58] as a mechanism to reopen his case; the court instructed that coram nobis was available only in extraordinary situations in which there is new evidence that alters material facts of the case, not in Payne’s case, where the basis of the claim was a change in law.[59] Payne argued for reversals of prior court conclusions (1) that the intellectual disability statute did not itself provide a retroactive cause of action (which the court had held in Van Tran), and (2) that Coleman did not provide a new constitutional rule that gave individuals an opportunity to reopen cases (which the court had held in Keen v. State), but the court affirmed its prior decisions on these points.[60] On the latter point, the Tennessee court expressly rejected the holdings in two federal habeas corpus cases from Tennessee that ordered trial courts to consider evidence of intellectual disability following Coleman,[61] concluding curtly that those federal cases were not binding as the question was one of state law.[62] At the court’s request, Payne also argued that the U.S. Supreme Court’s decision in Hall v. Florida (invalidating the rigid 70 IQ cut off for intellectual disability) could provide grounds for relief. Again, the Tennessee Supreme Court rejected Payne’s argument, concluding that while Hall might have laid out a substantive standard for determining intellectual disability, it was silent as to what procedural mechanism individuals might utilize and it certainly did not create a new one.[63] In the end, Payne had knocked on numerous doors in his quest to have his evidence of intellectual disability considered by a court – any court – but was turned away every time.

The Tennessee Supreme Court was cognizant of Payne’s quandary. In its Payne opinion, it reiterated a commitment “to the principle that Tennessee has no business executing persons who are intellectually disabled.”[64] However, rather than providing a sense of how that fate might be avoided, the court punted the problem to Tennessee’s state legislature: “We encourage the General Assembly to consider whether another appropriate procedure should be enacted to enable defendants condemned to death prior to the enactment of the intellectual disability statute to seek a determination of their eligibility to be executed.”[65]

Pervis Payne is still awaiting such an action, even as his execution date nears. After losing the 2016 case at the Tennessee Supreme Court, he sought permission from the Sixth Circuit Court of Appeals to file a new habeas corpus action in which he could challenge his sentence on the basis of intellectual disability.[66] Though he had lost in state court on the ground that his request was based on a change in law rather than a change in facts, his request for permission was rejected by the federal appeals court on the ground that Payne failed to show that the change in evidence allowed to demonstrate intellectual disability constituted changes in law that can be applied retroactively.[67] At every step, courts have denied Payne the opportunity to present evidence of intellectual disability even as the state has never rebutted his claim on its merits.

Having thus been locked out of presenting his case due to procedural labyrinths of the courts, Payne’s fate now may depend on the legislative and executive branches of government. Recently, a state representative promised to take up the task in the next legislative session; due to Payne’s temporary reprieve, it is possible that the legislature will pass such legislation before a new execution date is set.[68] In addition, the governor retains the ability to commute Payne’s sentence. Yet, if no action is taken, Tennessee faces the prospect of moving forward with a potentially unconstitutional execution, implementing the ultimate penalty without bothering to determine the merits of Payne’s intellectual disability claim.

III. Preventing the Perfect Storm

From 1977, when Tennessee adopted its current capital punishment scheme,[69] through 2017, only 192 Tennessee defendants were sentenced to death of the 2,514 individuals convicted of first degree murder (and thus eligible for such a sentence).[70] Among those 192, 106 had their death sentences vacated or reversed, leaving only 86 individuals on Tennessee’s death row as of 2017.[71] Looking at this data, with the sentence rarely invoked and often vacated, two Tennessee practitioners referred to the system as a “capricious lottery” based on characteristics other than the reprehensibility of the defendant’s crime.[72] Their analysis demonstrated factors that predicted when a sentence of death was more likely, such as the date of trial (1980s), the county in which the crime was committed (Shelby County), the race and socioeconomic status of the defendant (African American and poor, being served by an appointed defense lawyer), and the race of the victim (White). Even aside from the issue of intellectual disability, Pervis Payne’s case represents a perfect storm of these factors.[73]

However, until recently, actual execution even among those on Tennessee’s death row was rare. From 1977 through 2017, only six individuals were put to death.[74] Since 2018, however, only Texas has executed more individuals than Tennessee’s seven.[75] The increased instances of execution increases the potential for an unconstitutional execution such as the one potentially facing Pervis Payne. If action is not taken by either Tennessee courts, legislators, or the governor, Payne and other defendants may be executed before even having an opportunity to argue that they are ineligible due to intellectual disability.

A. Governor

The most direct mechanism through which Tennessee can avoid performing an unconstitutional execution lies in the hands of the governor. Under the Tennessee constitution, the governor “shall have power to grant reprieves and pardons, after conviction.”[76] This power includes the power to commute a sentence, including commuting a death sentence to life imprisonment.[77] That power has been codified by statute as well.[78] The governor’s discretion on these matters is broad, “exclusive of all other departments of the state,”[79] and “limited only by the language of the Constitution.”[80] Pervis Payne has filed a request for clemency based not only on his claims of innocence, but also on his unadjudicated claim of intellectual disability.[81]

There is no doubt that Tennessee Governor Bill Lee has the authority to commute Payne’s sentence. However, this path to avoiding a potentially unconstitutional execution lies entirely in the discretion of the governor. To date, Governor Lee has only commuted one death sentence;[82] instead, he has overseen the state’s increase in executions. While Governor Lee did grant Payne a temporary reprieve amidst the COVID-19 pandemic, thus canceling a December 2020 execution date and enabling the General Assembly the opportunity to consider legislation that would give Payne an opportunity for a hearing, he could more forcefully refuse to move forward with Payne’s execution (even after the reprieve expires in April 2021) until there has been a hearing to determine intellectual disability. Until such determination is made, the danger of unconstitutionally executing an individual with intellectual disability remains.

B. Legislature

While the governor has the authority to commute Payne’s sentence, a commutation would not solve the structural problem evidenced by Payne’s case. On the question of intellectual disability, Payne may not be alone in the labyrinth in which he finds himself – the way out is to allow him a forum in which he can present evidence of intellectual disability and have his claim adjudicated. Though Tennessee law prohibits sentencing individuals with intellectual disabilities to death,[83] the statute does not provide a mechanism for those already sentenced to challenge their eligibility for capital punishment.[84] The Tennessee Supreme Court has encouraged the General Assembly to fill this gap,[85] but the legislature has yet to take action.

Tennessee does allow for post-conviction relief allowing for a challenge to a sentence based on “violation of any right guaranteed by the state or federal constitution, including a right not recognized as existing at the time of trial or sentencing.”[86] However, such relief is bound by a statute of limitations to prompt timely adjudication of claims.[87] As described above, though cases found that execution of individuals with intellectual disability violated the state constitution (Van Tran in 2001) and federal constitution (Atkins in 2002), Payne did not seek post-conviction relief within the statute of limitations due to the existing standard at the time that would likely have found him ineligible to be have intellectual disabilities due to his IQ scores above 70. However, Payne did seek relief within a year of the change in Tennessee law that expanded the definition of intellectually disabled. That effort failed in 2016.[88]

State Representative G.A. Hardaway declared his intention to file a bill to provide a procedural mechanism for individuals like Payne to reopen their cases to obtain a determination of intellectual disability.[89] The proposed statute is fairly simple: it amends the state’s intellectual disability statute, Section 39-13-203, to provide “a defendant who has been sentenced to the death penalty prior to the effective date of this act and whose conviction is final on direct review” the ability to “petition the trial court for a determination of whether the defendant is intellectually disabled.”[90] The proposed statute also removes the reference to an I.Q. of 70, instead defining intellectual disability as “a disability characterized by significant limitations in both intellectual functioning and adaptive behavior, including many everyday social and practical skills.”[91] Such a bill would directly solve the problem presented in Payne’s case, though it is unclear whether such a statute will become law. Another legislative option could be to adjust the post-conviction statute of limitations (40-30-102) to account for changes not only in interpretation of the constitution, but also in evidentiary standards. The latter option would override a Tennessee Supreme Court decision[92] that determined that the evidentiary wave of death penalty reform in Tennessee (i.e., the allowance of broader evidence to show disability beyond IQ scores below 70) did not create a change in law sufficient to merit a new opportunity for post-conviction relief. Neither of these statutes would be particularly complicated, though each would likely need to define chronological, evidentiary, and procedural parameters to function effectively.

C. Courts

While the state legislature could solve the problem facing Pervis Payne with a statute, it was the courts that created the problem in the first place. By strictly interpreting both the intellectual disability statute[93] and the effect of the 2011 change in evidentiary standards for intellectual disability,[94] the Tennessee Supreme Court (despite claims that the state had “no business” executing intellectually disabled individuals) increased the chances that an individual would be put to death without even a hearing on a claim of intellectual disability. When given the opportunity to reverse itself in Payne’s own case, the Court refused.

A map for a solution was provided in the partial concurrence of Judge Camille McMullen of the Tennessee Court of Criminal Appeals in Payne’s case. Considering the due process elements of Payne’s claim, Judge McMullen favored an approach that balanced the need to ensure that post-conviction claims were made in a timely manner against the magnitude and gravity of the situation facing the defendant.[95] Judge McMullen thus sought flexibility under somewhat unusual circumstances and a mechanism for actually delivering what her colleagues and the judges of the Tennessee Supreme Court, all of whom disagreed with her, seemed to agree was needed: a hearing on Pervis Payne’s claim of intellectual disability. Though it has been foreclosed in Payne’s case, following Judge McMullen’s course would avoid the peril now facing Tennessee and the fate now facing Pervis Payne.

Animating Judge McMullen’s conclusion were two other cases applying the evidentiary standards adopted in 2011 in Coleman in the context of federal habeas corpus challenges to the death penalty in Tennessee. In Black v. Bell, the Sixth Circuit Court of Appeals remanded a defendant’s habeas corpus claim for a review of its consistency with Atkins’s prohibition on execution of intellectually disabled individuals.[96] Specifically, the court ordered application of the Coleman standard for determining disability.[97] The Sixth Circuit reached a similar conclusion in a 2014 federal habeas corpus case, concluding that the defendant was entitled to adjudication of a claim of intellectual disability under the state’s Coleman standard even though there had been a previous hearing on the question using the previous standard.[98] In the 2014 case, the Sixth Circuit noted that the best mechanism for proper consideration of the question of intellectual disability using the proper standard would be a hearing in a state post-conviction court (as opposed to a federal habeas corpus proceeding).[99] This is precisely what Judge McMullen sought to accomplish, arguing that “at the very least, an argument can be made that judicial economy necessitates a hearing based on the federal courts’ repeated retroactive application of Coleman to Tennessee’s implementation of the rule in Atkins.”[100]

Theoretically, Pervis Payne might also seek another round of habeas relief on grounds similar to those in these other two cases; however, Payne’s previous attempt to obtain permission to file a new habeas action was rejected.[101] To pursue this course and obtain a determination using the Coleman standard for intellectual disability, Payne would need to convince the appeals court that permission to file a new habeas claim is now appropriate. However, as Judge McMullen stated, such action ought not be required for Payne or for future defendants facing similar circumstances. Atkins dictates that Payne cannot be executed if he is intellectually disabled. Tennessee lawmakers and courts have come to the same conclusion. All that is missing is an answer to the question: is Pervis Payne intellectually disabled? If no other body does so, Tennessee courts can, and should, provide a forum to answer it.

IV. Conclusion

Since the Supreme Court’s holding in Atkins, approximately 7% of death row defendants nationwide have sought review of the constitutionality of their death sentences.[102] A significant number of those defendants have been successful.[103] Such cases represent the most vital reason for considering all of the evidence and making a determination of intellectual disability before it is too late. There are individuals with intellectual disabilities on death row; executing them is unconstitutional. Many have seen their sentences altered in the wake of Atkins, but at least one has been denied the opportunity to even present evidence. The state continues to dither, relying on a procedural labyrinth rather than any substantive rebuttal of Payne’s intellectual disability claims. However, closing the doors on Pervis Payne and refusing to find out whether or not he is truly eligible for execution does not transform a potentially unconstitutional act into a permissible one.

Avoiding Atkins.pdf

[1] FedEx Professor of Law & Associate Director, Benjamin L. Hooks Institute for Social Change, The University of Memphis. Thank you to Joia Erin Thornton at Just City in Memphis for helping me better understand the Payne case and to the many others working to ensure a hearing on intellectual disability. Thank you also to the editors at Law and Inequality, particularly Sam Brower, for working under compressed circumstances to bring this piece to publication. It is my sincerest hope that Pervis Payne and others in a similar procedural labyrinth that could lead to what everyone agrees would be an unconstitutional execution are provided an opportunity to present the merits of their claims of intellectual disability. Justice, decency, and the Constitution demand it.

[2] See Van Tran v. State, 66 S.W. 3d 790 (Tenn. 2001); Atkins v. Virginia, 536 U.S. 304 (2002).

[3] Keen v. State 398 S.W.3d 594, 613 (Tenn. 2012).

[4] Payne v. State, 493 S.W.3d 478, 486 (Tenn. 2016).

[5] Tennessee v. Payne, Nos. 87-04409 & 87-04410, Order, (Tenn. Sup. Ct. Feb. 24, 2020) (setting execution date). Available at: http://tncourts.gov/sites/default/files/docs/payne_pervis_t_order_setting_execution_filed_february_24_2020.pdf.

[6] See, e.g., Alan Judd, 30 Years Later, Details of Disabled Man’s Execution Still ‘State Secrets’, Atlanta J. Const. (Oct. 19, 2016.), https://www.ajc.com/blog/investigations/years-later-details-disabled-man-execution-still-state-secrets/GNtfMdTqyZrTpscahSaNZK/.

[7] Atkins, at 313, n8.

[8] Atkins, at 314.

[9] Van Tran v. State, 66 S.W.3d 790, 804-05 (Tenn. 2001) (citing Tenn. S., Debate on H.B. 2107 on the Floor of the Senate, 96th Gen. Assembly, 2nd Reg. Sess. (Apr. 12, 1990) (Tape S–106B) (Substituted for S.B. 1851)).

[10] 1990 Tenn. Laws Pub. Ch. 1038, enacting Tenn. Code Ann. 39-13-203(b). The statute was subsequently amended to replace the phrasing “mental retardation” with “intellectual disability.” See 2010 Tenn. Laws Pub. Ch. 734. For the remainder of this essay, I will utilize the contemporary phrasing “intellectual disability” when describing the statute.

[11] Tenn. Code Ann. 39-13-203(a).

[12] Van Tran v. State, 66 S.W.3d 790, 804 (Tenn. 2001) (“The very timing of the [intellectual disability] statute’s passage, less than a year after the Penry Court held that execution of the mentally retarded did not violate national standards of decency, suggests that the legislature intended to reject Penry.”).

[13] 492 U.S. 302 (1989).

[14] Penry, 492 U.S. at 334-35.

[15] The Court also acknowledged that 14 other states prohibited the death penalty altogether.

[16] Penry, 492 U.S. at 334-35.

[17] Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001). Article I, sec. 16 of the Tennessee Constitution tracks precisely with the Eighth Amendment of the federal Constitution: “That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

[18] Van Tran, 66 S.W.3d at 801-09.

[19] Van Tran, 66 S.W.3d at 802.

[20] Van Tran, 66 S.W.3d at 803-04.

[21] Van Tran, 66 S.W.3d at 807-08 (citing with approval the dissent of Justice Brennan in Penry).

[22] Van Tran, 66 S.W.3d at 800.

[23] Atkins v. Virginia, 536 U.S. 304 (2002).

[24] Atkins, 536 U.S. at 314-21.

[25] Atkins, 536 U.S. at 317 (“To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.”).

[26] See Tenn. Code Ann. 39-13-203(a).

[27] Coleman v. State, 341 S.W.3d 221 (Tenn. 2011).

[28] Coleman, 341 S.W.3d at 230-31.

[29] Coleman, 341 S.W.3d at 240-41 (citing Tennessee Court of Criminal Appeals cases expressing concern that a “bright-line cutoff” requirement raised the specter of the possible execution of intellectually disabled individuals).

[30] Coleman, 341 S.W.3d at 241.

[31] Hall v. Florida, 572 U.S. 701 (2014).

[32] Hall, 572 U.S. at 704.

[33] Hall, 572 U.S. at 709 (citing Atkins).

[34] Hall, 572 U.S. at 723.

[35] Though Payne has maintained his innocence through the entire life of his case (See Steven Hale, Tennessee Set to Execute Intellectually Disabled Black Man in Killing of White Woman Even Though Innocence Questions Persist, The Appeal (Apr. 29, 2020), https://theappeal.org/tennessee-set-to-execute-intellectually-disabled-black-man-in-killing-of-white-woman-even-though-innocence-questions-persist/) this essay proceeds without considering Payne’s guilt or innocence. Certainly if Payne is innocent, he should not be executed (See, e.g., Alan W. Clarke, Eric Lambert, & Laurie Anne Whitt, Executing the Innocent: The Next Step in the Marshall Hypothesis, 26 N.Y.U. Rev. L. & Soc. Change 309 (2000) (attempting to empirically determine how many innocent individuals have likely been executed)); but even if he is guilty, his execution would be unconstitutional if he is intellectually disabled.

[36] Tennessee v. Payne, Nos. 87-04409 & 87-04410, Order, (Tenn. Sup. Ct. Feb. 24, 2020) (setting execution date). Available at: http://tncourts.gov/sites/default/files/docs/payne_pervis_t_order_setting_execution_filed_february_24_2020.pdf.

[37] State of Tennessee, Office of the Governor, Newsroom, “Governor Lee Grants Temporary Reprieve for Pervis Payne,” November 6, 2020. The Governor’s statement, in full, read, “I am granting Pervis Payne a temporary reprieve from execution until April 9, 2021, due to the challenges and disruptions caused by the COVID-19 pandemic.” Available at: https://www.tn.gov/governor/news/2020/11/6/gov–lee-grants-temporary-reprieve-for-pervis-payne.html.

[38] Payne v. Tennessee, 501 U.S. 808 (1991) (determining that victim impact evidence could be utilized in securing a death sentence). Somewhat ironically, Payne’s case represented a reversal of a prior Supreme Court decision on the topic, Booth v. Maryland, 482 U.S. 496 (1987). Thus, his conviction was sustained only due to a shift in the Supreme Court’s interpretation of the Eighth Amendment, yet he has not benefited from a separate shift in Atkins.

[39] See Payne v. State, 2007 WL 4258178 (Tenn. Ct. Crim. App. 2007) (denying DNA testing); Payne v. State, No. P-09954, 87-04408, 87-04409, & 87-04410, Order Granting in Part “Petition for Post-Conviction DNA Analysis (Tenn. Crim. Ct. (30^th Judicial District, Division 1) Sept. 16, 2020) (granting DNA testing); Katherine Burgess, Judge Grants DNA Testing in Pervis Payne’s Tennessee Death Penalty Case, The Commercial Appeal, Sept. 16, 2020. In full disclosure, I briefly represented Payne in his request for DNA testing in 2007. Though testing was denied in that case, testing was recently granted on newly-discovered items of evidence and is currently proceeding. Payne has also sought relief through a federal habeas corpus petition. Payne v. Bell, 418 F.3d 644 (6th Cir. 2005).

[40] See Penry, note X infra.

[41] Van Tran, 66 S.W.3d at 797-98 (citing State v. Cauthern, 967 S.W.2d 726 (Tenn. 1998).

[42] Van Tran, 66 S.W.3d at 798-99.

[43] Van Tran, 66 S.W.3d at 811.

[44] Van Tran, 66 S.W.3d at 811 (citing Meadows v. State, 849 S.W.2d at 755 and Tenn. Code Ann. 40-30-222).

[45] Van Tran, 66 S.W.3d at 811.

[46] Tenn. Code Ann. 39-13-203(a)(1).

[47] Van Tran, 66 S.W.3d at 812.

[48] Van Tran, 66 S.W.3d at 812.

[49] Payne v. State, 493 S.W.3d at 481, n3 (citing Tenn. Code Ann. 40-30117(a)(1)).

[50] Payne v. State, 493 S.W.3d at 482. Payne also presented evidence that due to the “Flynn effect,” which required regular re-norming of IQ tests, the revised scores on his latter three tests would be 75.4, 72.4, and 73.7, respectively. Id.

[51] See In re: Payne, 722, Fed. Appx. 534, 537 (6th Cir. 2018) (discussing Payne’s failure to seek relief following Atkins in a subsequent request to the Sixth Circuit for permission to file an additional habeas claim and noting that “Payne’s failure to pursue such a claim is perhaps unsurprising because his I.Q. scores over several decades did not appear to demonstrate that he met the first factor for intellectual disability under Tennessee’s statute.”).

[52] Howell v. State, 151 S.W.3d 450 (Tenn. 2004).

[53] See Payne v. State, 2014 WL 5502365, *21 (Tenn. Ct. Crim. App. 2014 (MacMullen, J., concurring in part, dissenting in part) (“Prior to Coleman, courts did not permit the consideration of evidence other than raw IQ scores to determine a defendant’s functional IQ. As a result, any attempt by the Petitioner to seek relief would have been future.”).

[54] Payne v. State, 493 S.W.3d at 481-82.

[55] Keen v. State, 398 S.W.3d 594 (Tenn. 2012).

[56] Payne v. State, 2014 WL 5502365 (Tenn. Ct. Crim. App. 2014). Judge MacMullen concurred in part and dissented in part and would have ordered an evidentiary hearing. Id., at *17.

[57] Payne v. Carpenter, 2016 WL 4142485 (Tenn. Ct. App. 2016).

[58] Tenn. Code Ann. 40-26-105(b).

[59] Payne v. State, 493 S.W.3d at 484-86.

[60] Payne v. State, 493 S.W. 3d at 488 (“Consistently with our decision in Van Tran, we hold that the intellectual disability statute does not create an independent collateral cause of action for raising a claim of intellectual disability and ineligibility to be executed.”); at 492 (“[W]e decline to overrule our decision in Keen.”).

[61] See Black v. Bell, 664 F.3d 81 (6th Cir. 2011); Van Tran v. Colson, 764 F.3d 594 (6th Cir. 2014).

[62] Payne v. State, 493 S.W.3d at 492.

[63] Payne v. State, 493 S.W.3d at 490-91.

[64] Payne v. State, 493 S.W.3d at 486 (citing Keen v. State, 398 S.W.3d at 613).

[65] Payne v. State, 493 S.W.3d at 492

[66] In re: Payne, 722 Fed, Appx. 534 (6th Cir. 2018).

[67] Id., at 538.

[68] Id. See also Tenn. Gen. Assembly, HB 0001, filed for introduction 11/4/2020 (http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB0001)

[69] Bradley A. Maclean & H.E. Miller Jr., Tennessee’s Death Penalty Lottery, 13 Tenn. J. Law & Policy 85, 87 (2018)

[70] Id. at 132.

[71] Id.

[72] Id. at 90.

[73] Joia Erin Thornton, Pervis Payne the Color of Capital Punishment in the South, MLK50: Justice Through Journalism (Aug. 26, 2020), https://mlk50.com/2020/08/26/pervis-payne-and-the-color-of-capital-punishment-in-the-south/.

[74] Tennessee’s Death Penalty Lottery, supra note 65, at 132-33.

[75] Death Penalty Information Center, Executions by State and Year, https://deathpenaltyinfo.org/executions/executions-overview/executions-by-state-and-year (last visited Nov. 5, 2020).

[76] Tenn. Const., Art. 3, section 6.

[77] See Carroll v. Raney, 953 S.W.2d 657 (Tenn. 1997); Tenn. Att. General Opp. 11-31 (Apr. 11, 2011).

[78] See Tenn. Code Ann. 40-27-105 (“Upon application for a pardon by a person sentenced to capital punishment, if the governor is of the opinion that the facts and circumstances adduced are not sufficient to warrant a total pardon, the governor may commute the punishment of death to imprisonment for life in the penitentiary”). See also Tenn. Code Ann. 40-27-106.

[79] State v. Dalton, 72 S.W. 456 (1903).

[80] Lemay v. State, 29 S.W.3d 483, 485 (Tenn. 2000).

[81] Katherine Burgess, Pervis Payne’s Attorneys Call on Gov. Lee for Mercy: ‘You are the solution to the problem”,The Commercial Appeal (Oct. 5, 2020), https://www.commercialappeal.com/story/news/crime/2020/10/05/pervis-payne-attorneys-ask-gov-bill-lee-clemency/3590962001/.

[82] American Bar Association Capital Clemency Resource Initiative Clearinghouse, State Information: Tennessee, https://www.capitalclemency.org/state-clemency-information/tennessee-2/ (last visited Nov. 5, 2020) (noting five denials and one reprieve (Harold Wayne Nichols) by Governor Lee).

[83] Tenn. Code Ann. 39-13-203.

[84] See Van Tran, 66 S.W.3d at 798-99 (determining that state’s intellectual disability statute did not apply retroactively).

[85] Payne v. State, 493 S.W.3d at 492.

[86] Tenn. Rules of Post-Conviction Procedure, Rule 28, sec. 9(b).

[87] See Tenn. Code Ann. 40-30-102.

[88] Payne v. State, 493 S.W.3d 478 (Tenn. 2016).

[89] Travis Loller, Tennessee Death Row Inmate Claims Intellectual Disability, Associated Press (Sept. 14, 2020), https://apnews.com/article/nashville-executions-us-supreme-court-tennessee-courts-0fb5bc994fcb9f0d5d28f5d503d47e70.

[90] See also Tenn. Gen. Assembly, HB 0001, filed for introduction 11/4/2020 (http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB0001)

[91] Id.

[92] Keen v. State, 398 S.W.3d 594 (Tenn. 2012).

[93] See Van Tran, 66 S.W.3d at 798-99.

[94] See Keen v. State, 398 S.W.3d 594 (Tenn. 2012) (interpreting Coleman v. State, 341 S.W.3d 221 (Tenn. 2011).

[95] Payne v. State, 2014 WL 5502365, *22 (Tenn. Ct. Crim. App. 2014) (McMullen, concurring) (“Rather, the magnitude and gravity of the penalty of death persuades me that the important values which justify limits on untimely petitions are outweighed by the Petitioner’s interest in having a court evaluate evidence that may show that he is ineligible for the death penalty” (citations and internal quotations omitted)).

[96] Black v. Bell, 664 F.3d 81, 101 (6th Cir. 2011).

[97] Id.

[98] Van Tran v. Colson, 764 F.3d 594, 619-20 (6th Cir. 2014).

[99] Id. at 620.

[100] Payne v. State, 2014 WL 5502365, *21 (Tenn. Ct. Crim. App. 2014) (McMullen, concurring).

[101] In re: Payne, 722 Fed. Appx. 534 (6th Cir. 2018).

[102] Blume, et al, A Tale of Two (and Possibly Three) Atkins, 23 William and Mary Bill of Rights Journal 393, 396-97 (2014).

[103] Id. The article uses a variety of statistical methods to determine the “success rate” of Atkins claims. The authors ultimately identified 44%. Id, at 397, n.23.

Elder Evictions: Relief Coming 2021

By jlieditors

Image Attribution: Glen Stubbe, Star Tribune

By Abigail Hanson, Lead Managing Editor

Effective August 2021, Minnesota will have a long overdue safeguard for our state’s seniors: heightened protections from assisted living facilities (ALF) evictions. The Elder Care and Vulnerable Adult Protection Act, passed in 2019, provides for not only procedural eviction protections for ALF residents, but a myriad of other checks and balances that benefit consumers.

One critical aspect of the 2019 Act, is the establishment of a licensure system for ALFs, a basic regulatory standard of which Minnesota is the last in the country to adopt. Currently, Minnesota’s ALFs are registered with the Minnesota Department of Health as Housing with Services (HWS) establishments. Fittingly, ALFs provide both housing and services, the latter of which can include anything from meals and housekeeping, to medication support or assistance with activities such as dressing or bathing.

The popularity of ALFs has skyrocketed in the last two decades, with the number of these facilities roughly tripling since 2000. The prevalence of ALFs is further put into perspective when compared to the number of nursing homes in the state, which total just 361. In 2020, over 50,000 Minnesotans received assisted living services and/or dementia care at HWS facilities. As the popularity of ALFs has increased, these facilities have started to house adults with more serious medical conditions. Nationally, upwards of 50% of ALF residents need help with bathing, dressing, or walking, and 42% suffer from dementia.

Yet, the structure of Minnesota’s HWS laws, the framework under which ALFs have, and currently, exist, fail to recognize the increasing complexities and vulnerabilities within these resident populations. For example, residents’ housing is still governed by basic landlord-tenant law. As such, ALF residents, who may be suffering from dementia or require heightened medical care, are subject to the same notice and eviction proceedings as anyone renting out an apartment. Moreover, ALF residents are susceptible to “back-door” evictions, which occur when their services are reduced or cut off, forcing them to move out and find a new service provider. This backdoor eviction method has become especially concerning during the COVID-19 pandemic. Minnesota’s eviction moratorium, instituted through executive order, does not foreclose upon the stoppage or reduction of ALF services. Thus, for residents of ALFs—a group whose age alone puts them at increased risk for serious complications from COVID-19—evictions during the pandemic are a real possibility.

Elder Care & Vulnerable Adult Protection Act

Codified under chapter 144G, the 2019 Act, whose main provisions become effective August 2021, provides for the licensure and regulation of ALFs. Overarching changes include training and staffing requirements for ALFs, along with the establishment of minimum standards of care for residents. Many statutory provisions increase consumer protections, including the creation of an assisted living bill of rights and required contract disclosures related to a resident’s lease and services plan, now deemed their “assisted living contract.” Building upon these statutory safeguards is section 144G.52, which provides procedural protections for resident terminations (i.e. evictions).

Pre-Termination Procedural Protections

Section 144G.52 expands the definition of termination. This simple change is the foundation for resident eviction protections found within the Elder Care Act. When effective in 2021, the definition will afford procedural protections to both the termination of housing and services received by residents in ALFs.

Additionally, termination of either housing or services may only occur under the following circumstances: (1) nonpayment, (2) violation of an assisted living contract (of which a resident needs to be given a chance to cure), or (3) limited situations where a resident has interfered with the health and safety of fellow residents or staff. The narrow bases on which an ALF may terminate a resident’s housing or services reduce opportunities for arbitrary discharges, such as when a facility threatens eviction based upon resident’s reported concerns or complaints.

Significantly, an ALF must schedule a pre-termination meeting with the resident. The meeting’s purpose is to lay out the reasons for the proposed housing or service termination, but also to “identify and offer reasonable accommodations or modifications, interventions, or alternatives to avoid the termination or enable the resident to remain in the facility.” Not only does this offer an opportunity for residents to avoid termination, but this process actively involves additional resident advocates. Legal and designated representatives for the resident, are required by the statute to be invited to the pre-termination meeting. The additional support can help the resident to effectively advocate with ALF administrators.

Post-Termination Procedural Protections

If the pre-termination meeting does not result in a path for continued housing or services, the ALF may terminate the resident after providing notice. However, the notice must include information on the resident’s appeal rights, in addition to contact information for the Office of Ombudsman for Long-Term Care and Senior LinkAge Line, vital advocates for older adults in Minnesota. Under current HWS law, residents must go through the stress of eviction proceedings and have no recourse for service terminations; thus, the Elder Care Act’s inclusion of appeal opportunities bolsters residents’ chances for stability.

If a resident chooses not to appeal, or receives an adverse determination upon appeal, the obligations of the ALF do not end. An ALF must prepare a relocation plan and participate in a coordinated move, ensuring the resident has a safe location. Excluded from chapter 144G’s definition of safe locations are “private home[s] where the occupant is unwilling or unable to care for the resident,” homeless shelters, hotels, and motels. The statute goes further, explicitly stating that a “facility may not terminate a resident’s housing or services if the resident will, as the result of the termination, become homeless.”

The strengthened pre- and post-termination procedures of the Elder Law Act provide needed protections for Minnesota’s seniors, favoring stability and safety. Required pre-termination meetings with advocates and ALF administrators can prevent the emotional upheaval that forced transitions can cause, specifically for those experiencing dementia. Post-termination coordinated moves may help to curb the sobering increase in homelessness among Minnesota’s older adults. Consumer protections and regulations of ALFs are long overdue in Minnesota, and the changes effective 2021 will be a welcome relief to older adults across the state.

2020 Summit for Civil Rights – The State of American Apartheid

By jlieditors

In “The State of American Apartheid”, scholars and on-the-ground activists discuss the history of school segregation, and, even six decades after Brown v. Board of Education declared “Separate is not equal”, how segregation exists and affects people today. This panel discusses the causes, results, and on-going impact of our society’s unwillingness to challenge racial segregation in our schools, featuring opening remarks from Beverly Daniel Tatum, President Emerita of Spelman College, and a panel discussion moderated by Stefan Lallinger, Director of The Century Foundation’s Bridge Collaborative. Panel participants include Richard Rothstein, Author of “The Color of the Law: A Forgotten History of How Our Government Segregated America”; Tiffani Torres, Pace High School Class of 2020 and leader of school integration group Teens Take Charge; Stella Flores, Associate Dean at New York University; Sheryll Cashin, Professor of Law, Civil Rights, and Social Justice at Georgetown University Law Center.

2020 Summit for Civil Rights – What Is To Be Done? How Can We Help?

By jlieditors

President Richard L. Trumka of the AFL-CIO began the panel “What Is To Be Done? How Can We Help?” with a reflection on the torch lit by John Lewis and Martin Luther King, Jr., citing the importance of unions and foundations as “moral legacies” for structural change in the United States. This panel was made up of Na’ilah Suad Nasir, President of the Spencer Foundation, Fred Blackwell, CEO of the San Francisco Foundation, and Otis Rolley, Senior Vice President, U.S. Equity and Economic Opportunity Initiative of the Rockefeller Foundation. These panelists, moderated by john a. Powell, Professor of Law at University of California Berkeley Law School, discussed what it would take to build lasting coalitions, structures, and bridges based on a shared humanity and lasting power for meaningful transformational change. Derrick Johnson, President of the NAACP, closed out the conference with a few words on moving from protest to power at the ballot box and the importance of holding elected officials accountable. The Summit was then closed with a prayer from Reverend Timothy T. Boddie.

2020 Summit for Civil Rights – Awards Ceremony

By jlieditors

Thanks for joining us, your support, and for engaging in an important and timely conversation. We look forward continuing on the journey of establishing a more just and equitable society.

“We are one people, one family, the human family, and what affects one of us affects us all.” ―John Lewis

2020 Summit for Civil Rights – Who’s Profiting?

By jlieditors

Day 2 of the Summit began with a welcome from Dean William M. Treanor of the Georgetown University Law Center. Congressman Robert “Bobby” Scott then spoke about systemic racism and landmark legislation intended to close the gaps in our society. In the day’s first panel, “Who’s Profiting?”, Moderator Julian Vasquez Heilig, Dean of University of Kentucky’s College of Education, lead a discussion on the deep and embedded inequities in all facets of our society that underpin the Modern Jim Crow—healthcare, education, employment, housing, and public safety, all of which have been exacerbated by COVID-19 and protests following the murder of George Floyd. Discussing the conditions that give rise to these inequities, the panel dives into who profits off these inequities, how corporate profit and political power maintains them, and pragmatic actions people can take to tackle these issues. The panel features Keeanga-Yamahtta Taylor, Associate Professor of African American Studies at Princeton, and includes panelists Mark Dimondstein, President of the American Postal Workers Union; Prentiss Dantzler, Assistant Professor at Georgia State University’s Urban Studies Institute; and Myron Orfield, Professor at the University of Minnesota Law School.

2020 Summit for Civil Rights – Is America Ready for a 2nd Reconstruction? A 3rd “Founding”?

By jlieditors

In the second panel of Day 2, “Is America Ready for a 2nd Reconstruction? A 3rd “Founding”?” Eric Foner, DeWitt Clinton Professor Emeritus of History at Columbia University, and Dr. Barbara Ransby, historian, writer, and activist, opened with some remarks. Foner outlined the historical background of the Reconstruction period and the fundamental changes to the Constitution brought about by grassroots movements. Dr. Ransby talked about having the “political, intellectual, and moral courage to confront the limits of racial capitalism” in order to confront white supremacy. Algernon Austin from Demos and Reverend Willie Francois III then joined the conversation and these panelists, moderated by Michelle Burris from the Century Foundation, discussed an ambitious racial justice and economic opportunity agenda that strengthens existing civil rights laws, delivers on the promises of the civil rights movement and the unmet demands of the March on Washington, and answers the call for justice that is being heard across the nation today. The discussion centered around institutional structures of segregation that limit and thwart opportunity in housing, schools, and access to economic and political power.

Does the Minneapolis Police Department Traffic Stop Data Reveal Racial Bias?

By jlieditors

Does the Minneapolis Police Department Traffic Stop Data Reveal Racial Bias?[1]

Disclaimer: The views and opinions expressed in this article are those of the authors.

Introduction

George Floyd’s death at the hands of Minneapolis police reignited the national debate about racial discrimination by police and led to protests across the country. Unfortunately, data on police behavior is limited; but one of the pieces of data that the Minneapolis Police Department (“MPD”) makes available can be used to determine if racial bias influences MPD traffic stops. The analysis can be used to inform stakeholders and can be continually monitored to evaluate ongoing department practices.

Summary of Results

This study analyzed Minneapolis Police Department traffic stop data from 2016 to 2020 to determine if racial bias influences MPD behavior. The Veil-of-Darkness method was used to conduct the analysis and was constructed to ensure that contextual and demographic factors are addressed. Results of the analysis showed that Black drivers are 10.8% percent more likely to be stopped during the day, when officers can observe the driver’s race for profiling, than when Black drivers’ race is not observable during darkness. The effect was highly statistically significant and demonstrated that Minneapolis Police Department traffic stops are racially biased.

Data

Data was obtained from the Minneapolis Police Department website[2] logging 79,000 traffic law enforcements from October 31, 2016 to June 4, 2020. Of those stops, approximately 69,000 have race captured. Below is a table showing the distribution of traffic stops by driver race. The underlying data captures Black and East African as separate races. These groups were combined for the summaries in Tables 1 & 2 to facilitate comparison to U.S. Census, but separated for the statistical analysis as to align with MPD data reporting practices.

Data Source: Minneapolis Police Department[2]

Casual data analysis would conclude that police make racially biased decisions, because the data shows Black drivers (53.1%) are stopped much more frequently than White drivers (34.6%). While the data is suggestive, it is critical to account for demographics and other factors, such as commuting behavior and geography.

Benchmarking is the technique most frequently used to account for demographic and other factors, such as commuting patterns and driving behavior in traffic stop data (Tillyer, Engel, & Cherkauskas, 2009). This technique compares the frequency of traffic stops to the demographics of the geographic area. Below is a comparison of the racial distribution of traffic stops from Table 1 to racial make-up of Minneapolis. Demographic data for the City of Minneapolis comes from the U.S. Census Bureau and is current as of July 1, 2019 (United States Census Bureau, 2020). Note that the columns do not total to 100% because the “Other” segment has been omitted for the sake of comparison.

* Data Source: Minneapolis Police Department[2] & US Census Bureau [3]

This analysis demonstrates that Black and East African residents made up 19.4% of the Minneapolis population, but accounted for 53.1% of the City’s traffic stops. Traffic stops with a White driver accounted for 34.6% of Minneapolis’ traffic stops, despite White residents making up 59.8% of the City’s population. These results are consistent with a previously published study by the Hennepin County Special Litigation Office (Jany, 2018). Comparison of traffic stops to the City’s demographics helps to overcome some of the previously noted shortcomings and provides some evidence of racial bias in the City’s traffic stop practices but, as stakeholders often note, other contextual factors, as mentioned above, may still not be fully accounted for.

Analysis

To analyze the traffic stop data without the need for benchmarking, economists Grogger and Ridgeway developed an alternative analytic method named the Veil-of-Darkness (Grogger & Ridgeway, 2006). The Veil-of-Darkness hypothesis states that officers stop a larger share of minority drivers during the daylight when it is easier to see the drivers race for profiling purposes than they do during the night. Limiting the analysis to the part of the day called the inter-twilight period addresses contextual factors such as commuting behaviors and geography. Different commuting behaviors, such as rush hour traffic, might confound results where police presence or certain offenses are less (more) likely to occur, e.g. speeding, than non-rush hour traffic. Because sunset varies throughout the year, it randomizes any geographic effects ensuring they do not influence results. Together, the method gets to a controlled set of drivers based on driving habits across Minneapolis with the only varying factor being the presence of daylight.

The inter-twilight period is between 5:05p.m. and 9:41p.m. The times relate to the day in December when it gets dark the earliest and the day in June when the sun sets latest. Below is a graph showing all traffic stops made by Minneapolis police from 10/31/2016 to 6/4/2020 with each dot representing a single traffic stop. Traffic stops highlighted in red occurred during the inter-twilight period and are the focus of the analysis.

* Data Source: Minneapolis Police Department[2]

The Veil-of-Darkness method creates a natural experiment using the setting of the sun – in daylight police can more easily identify a car driver’s race than they can at night. If the data shows that a larger share of Black drivers are stopped during daylight than at night, there is evidence of racial bias in the practices of the police. Because the time at which the sun sets differs during the year, factors such as commuting behavior, police presence, and underlying criminal activity are effectively randomized in the sample and do not impact the results. As a result, any difference identified by the analysis is exclusively due to the officer’s ability to perceive race using available daylight.

Below is a graph showing the share of Black drivers pulled over across thirty-minute segments of time during the inter-twilight period.

* Data Source: Minneapolis Police Department[2] and authors’ calculations

The chart shows the share of all traffic stops that include a Black driver during daylight and darkness. This is done by grouping all traffic stops into half-hour windows. The first set of data points, labeled 5:30 p.m. on the horizontal axis, show that 51.2% of traffic stops during the daylight included Black drivers while 49.4% of traffic stops during darkness involved a Black driver. Differing sunset times throughout the year make this comparison possible because sometimes during the year it is dark at 5:30 p.m. and other times it is light at 5:30 p.m. Further analysis shows that Black drivers are stopped more frequently during daylight in nine of the ten timeframes. The comparison reveals that Black drivers are consistently stopped more frequently during daylight when officers can see the car driver’s race than in darkness. This visual is an important first step in the Veil-of-Darkness method but leaves two unanswered questions:

1) How large is the disparity?

2) Is the disparity statistically significant?

Grogger & Ridgeway and subsequent researchers have used regression modeling to both quantify the difference in stop rates and determine statistical significance. As discussed previously, the Veil-of-Darkness method ensures that demographic and contextual factors are adequately addressed and only three pieces of data are required to complete the analysis – time of the stop, date of the stop, and the driver’s race. In addition to the primary analysis, sensitivity tests are an important component in the process. Sensitivity tests are done to ensure that small changes to model specification do not have a large impact on the model’s results. Researchers including (Grogger & Ridgeway, 2006), (Ritter & Bael, 2009) have done this by adding a third time factor to the regression equation. Results of the regression modeling and sensitivity testing are provided below in Table 3. The figures below reflect the increase in traffic stop rates for Black drivers between darkness and daylight – positive numbers reflect an increase in traffic stops during daylight.

Using MPD data from 2016 to 2020, Black drivers are 10.8% percent more likely to be stopped during the day when officers can observe the driver’s race for profiling than when the Black driver’s race is not observable during darkness. As noted, the effect is highly statistically significant with a 2% probability or less of occurring randomly. Sensitivity tests using step & spline functions for time demonstrate that the results do not materially change from specification changes, further enhancing confidence in the results.

Conclusion

Because of its ability to address contextual, demographic, and other factors, as well as the low data requirements (only time of the traffic stop, date of the traffic stop, and driver’s race are needed), the Veil-of-Darkness method is becoming a go-to method for traffic stop research. Results of this study are largely in line with a 2009 study that used data from the Minneapolis Police Department and the Veil-of-Darkness method (Ritter & Bael, 2009). That study used traffic stop data from 2002, concluding that Black drivers were 5.5% – 7.0% more likely to be pulled over during daylight than at night.

Together, the results of this study and previous studies demonstrate racial bias against Black people in the traffic stop practices of the Minneapolis Police Department. This study demonstrates that racial bias against Black drivers exists, based on the most recent data (including 2020); when the results are compared to similar previous studies, the racial bias appears to have increased in recent periods.

References

Jeffrey Grogger & Greg Ridgeway, Testing for Racial Profiling in Traffic Stops From Behind a Veil of Darkness, 101 J. of Am. Stat. Ass’n 878-87 (2006).

Joseph A. Ritter & David Bael, Detecting Racial Profiling in Minneapolis Traffic Stops: A New Approach, Cura Reporter 11-17 (2009).

Libor Jany, Hennepin County report finds stark racial disparities in traffic stops, Star Tribune (Oct. 5, 2018), https://www.startribune.com/hennepin-county-report-finds-stark-racial-disparities-in-traffic-stops/495324581/.

Rob Tillyer, Robin S. Engel, & Jennifer Calnon Cherkauskas, Best Practices in Vehicle Stop Data Collection and Analysis, 33(1) Policing: An International Journal 69-92 (2010).

U.S. Census Bureau: Quick Facts, U.S. Census Bureau, http://www.census.gov/quickfacts/fact/table/minneapoliscityminnesota,US/PST045219 (last visited June 10, 2020).

[1] Joseph Schneider, D.B.A. recently completed his doctoral studies specializing in behavioral economics. His research has focused on asset pricing and criminal justice.

Alfred Ndungu, Ph.D. is a statistician whose previous research has focused on statistical theory and healthcare.

[2] http://opendata.minneapolismn.gov/datasets/police-stop-data/data

[3] https://www.census.gov/quickfacts/fact/table/minneapoliscityminnesota,US/PST045219

Why a Tuesday in November? An Original Intent Argument for Increased Voter Accessibility

By jlieditors

By: Peter Schuetz (Articles Editor)

Regardless of political party, I think we can all agree the 2020 presidential election was a stressful mess. Despite Election Day being on November 3rd, the nation and the world did not know of Joe Biden’s apparent victory until November 7th. The slow trickle of votes in major swing states put a nation accustomed to Election Day results on edge. Many, including President Trump, insisted America should know the presidential results on Election Day. On October 30th, 2020, President Donald Trump tweeted “The Election should end on November 3rd., [SIC] not weeks later!” Although President Trump’s exclamation was unreasonable given the ongoing Covid-19 pandemic, it does raise an interesting question. What is so important about a singular “Election Day” and why is it some Tuesday in November?

The United States’ is among a minority of democracies that host election day during the work week. Of the OECD nations — a group of 37 nations describing themselves as committed to democracy and the market economy — the U.S. is among 7 which have weekday voting and do not treat election day as a national holiday. This, among other policies, has led the U.S. to consistently have lower voter turnout than other democracies. When people are faced with the prospect of unpaid time off work and standing in long lines just to vote, many opt to avoid the polls. Several states have chosen to make Election Day a paid holiday, at least for state employees. But this still leaves tens of millions of voters with the hard choice of missing work to go vote. The adverse impact of a weekday election seems clear, so why did the U.S. settle on this schedule? The answer: Tuesdays in November were convenient for farmers in the 1800’s.

There was no singular election day in the United States until 1845. Since the Constitution does not specify an election day, states were allowed to hold presidential elections any time they pleased within a 34-day period before the first Wednesday in December. This approach concerned Members of Congress who thought the early voting results could affect turnout and sway opinion in states that held late elections. In 1845, Congress chose to streamline the election process by setting a singular date for all states to conduct their presidential election. They did this to avoid voters being dissuaded by early results. With the purpose of encouraging voters, Congress wanted to schedule election day when it was convenient for the most potential voters.

In the 1800’s, the United States was still a largely agrarian society. Few people lived in the city centers where voting occurred and crop patterns were vital to the everyday lives of most Americans. These factors led the legislature to choose “the Tuesday next after the first Monday in the month of November.” The legislature chose early November because by then the fall harvest was over, but in the majority of the nation the weather was still mild enough to permit travel over unimproved roads. Legislators settled on a Tuesday in November due to other commitments many farmers had and their limited transportation options, being, at best, a horse drawn carriage. Many farmers attended church on Sundays and sold their goods at market on Wednesdays. The Legislature decided Tuesday would be best to avoid conflicting with these important events. Choosing Tuesday also allowed farmers ample time to travel into the city, vote, and then return home before market on Wednesday.

The legislators in 1845 were rather considerate to choose a date that worked for most voters at the time, but the electorate has changed substantially since then and yet we still abide by what was most convenient for farmers in the 1800’s. Obviously the voting pool has expanded beyond solely white men, but also a majority of society no longer farms. Many voters now live in urban areas, and even more now abide by the common “work week.” Starting in the early 1900’s most businesses adopted a standardized work week, which included most daylight hours from Monday to Friday. These shared scheduling commitments are vastly different from the more flexible work week of 1800’s farmers. This is not to even mention the astronomical changes in technology since 1845. Even the most rural voters do not require a day’s travel to reach their polling place due to advanced transportation options. We are clearly a different nation, yet we still vote on a Tuesday in November. What was once a convenience, is now an active impediment to voter participation.

The 1845 legislators chose to host election day on a Tuesday in November so that voting could be convenient and so voters would not be dissuaded from participating because of early results. Times have changed, but those goals are still noble. We should do what we can to streamline the voting process for modern voters, just as legislators did in 1845.

There are many proposals to facilitate voter participation, but this piece will briefly touch on only a few. First, and most simple, election day can remain on a Tuesday in November but be made a national holiday. Voters should not have to choose between their job and the right to vote. By making election day a national holiday, the impediment of having election day in the middle of the work week can be diminished. Secondly, we can return to the voting “time range” of the past. We had a small sample of this approach for the 2020 election with the influx of early voting. These methods need to be further tuned to allow for actual change. For this the federal government may need to step in, like in 1845, to streamline this process. Currently, states vary widely in how and when people can early vote. Finally, we can utilize our advancements in technology to establish convenient, yet secure, electronic methods of voting. These proposals are in their infancy, but some advances, like blockchain, seem like a promising way to allow for digital voting. Already, other nations have begun efforts to move their elections entirely online. Hopefully, one day there can be a secure route to vote through the internet from a person’s residence. However, this digital possibility requires investment to become a reality.

When legislators in 1845 decided we should all vote on a Tuesday in November, they wanted to encourage people to vote by making it convenient and by limiting the dissuading effects of early results. Now, in the 21st century, what was once a convenience, is now an active impediment to voter participation. To reinforce the original intent of legislators in 1845, we should make adjustments to election day to make it more convenient for voters, just as they did for farmers in the 1800’s.

An American Caste System: A Conversation with Professor Sheryll Cashin

By jlieditors

On Dec. 10, 2020, Minnesota Journal of Law & Inequality’s (JLI) Editor-in-Chief, Navin Ramalingam, and Lead Symposium Editor, Marisa Tillman, interviewed Professor Sheryll Cashin over Zoom for JLI’s online companion publication, Inequality Inquiry. Prof. Cashin is the Carmack Waterhouse Professor of Law, Civil Rights, and Social Justice at the Georgetown University Law Center. The nearly forty-minute conversation covered Professor Cashin’s illustrious parents and ancestors, her upbringing in Alabama during the 1960s Civil Rights Movement, her books, and her passion—researching and writing about racial inequality in America and its effects on Black Americans in the twenty-first century. Due to technical difficulties, the video interview starts a few minutes into the conversation.

After introductions, Navin asked Prof. Cashin about her illustrious parents and ancestors, whom she writes about in her book, The Agitator’s Daughter, and about her upbringing in Alabama during the 1960s Civil Rights Movement. Prof. Cashin’s great-grandfather, Herschel V. Cashin, was a radical Republican legislator in Alabama during the Reconstruction period. Prof. Cashin’s father, Dr. John L. Cashin, Jr. was a dentist and was also one of the most influential civil-rights leaders in Huntsville and Alabama in the late 1960s. Dr. Cashin, Jr. founded a black-led third party in Alabama, the National Democratic Party of Alabama (NDPA), and challenged Governor George Wallace in the 1970 gubernatorial election in Alabama. During the height of George Wallace’s hegemony, Dr. Cashin, Jr. succeeded in efforts to enfranchise thousands of Black voters who had previously been excluded from the political process through Jim Crow laws. Watch the video to learn more about Prof. Cashin’s involvement with the NDPA as a child, and her work.

Sheryll D. Cashin

The Law in Politics: A Conversation with Rep. Ryan Winkler

By jlieditors

In this interview, staff member Jon Erik Haines met with Minnesota House Majority Leader Rep. Ryan Winkler. Mr. Winkler is the Democratic Majority Leader in the Minnesota House of Representatives and represents suburban district 46A, which contains Golden Valley, St. Louis Park and Plymouth. As a graduate of the University of Minnesota Law School, the discussion focused on how Rep. Winkler’s legal background informs his legislative work. In particular, we discussed how legal training can help address inequalities, and how young lawyers can get more involved in the political system.

You can learn more about Representative Winkler and his work here.

The Burying of Boumediene v. Bush

By jlieditors

Kevin Thomson*

At the University of Minnesota Law School in 2018, Chief Justice John Roberts declared that the court “erred greatly” when it gave into political pressure and upheld the internment of Japanese Americans in the “shameful” decision Korematsu v. United States. The Court is at its best, said the Chief Justice, when it stands athwart political pressure.

One case unmentioned but nevertheless a viable candidate for the Court at its best is Boumediene v. Bush. 553 U.S. 723 (2008). In the fog of the War on Terror, the Court held the Suspension Clause applied to Guantanamo Bay and the weak procedures provided by Congress were an inadequate substitute to habeas corpus. The legal philosopher Ronald Dworkin, writing in the pages of the New York Review of Books, declared it “a great victory.” And it was. But now, the Supreme Court and D.C. Circuit have buried the effects of Boumediene, sending a once great victory into the graveyard of constitutional law. This short blog post will outline the key holdings of Boumediene, where they have been undermined and where they survive.

In 2006, Congress had passed the Detainee Treatment Act (DTA) which provided minimal procedures to Guantanamo detainees in the form Combatant Status Review Tribunals (CSRT), and the Military Commission Act (MCA) which stripped federal courts of habeas jurisdiction. Limited judicial review was granted to the D.C. Circuit, which could review whether the CSRTs complied with procedures promulgated by the Secretary of Defense. The plaintiffs in Boumediene challenged these laws under the Suspension Clause in Article I, Section 2 of the Constitution, which reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The Boumediene Court addressed the case in two steps. Step 1 asked the threshold question of whether the Suspension Clause extended to Guantanamo Bay. Step 2 asked whether the CSRTs and limited D.C. Circuit review constituted an “adequate substitute” to habeas corpus. The Court answered “Yes” on Step 1 and “No” on Step 2. In doing so, Boumediene left two legacies: a functional approach to extraterritoriality and a robust interpretation of the Suspension Clause.

The Court, in extending the Suspension Clause to Guantanamo Bay, rejected a formalist interpretation of the Clause’s reach. Justice Kennedy, writing for the majority, applied a functional test, asking, in part, whether the extension of the Suspension Clause would be “impracticable and anomalous.” Prior cases had sharply limited the application of the Constitution to the de jure territoriality sovereignty of the United States or to plaintiffs with significant voluntary connections to it. It was under the guidance of these cases that the Bush Administration chose Guantanamo Bay, where the government could be unburdened by constitutional concerns. After all, Guantanamo detainees had no voluntary connections to the United States, and Guantanamo Bay, located in Cuba, was outside the de jure sovereignty of the United States.

The Boumediene court rejected this manipulation and held the U.S. exercised de facto control over Guantanamo Bay and applying the Suspension Clause to it would not present any practical concerns. The hope was that the “impracticable and anomalous” test would spread beyond the Suspension Clause, and the government could not shed its constitutional duties by traveling abroad.

This hope was quickly dampened. There are a number of cases to note, but two are warrant special consideration. In Alliance for Open Society, a case seeking to extend the First Amendment abroad, the Court declared: “[I]t is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U.S. Constitution.” 140 S. Ct. 2082, 2086 (2020). This proposition, while not formally overruling Boumediene, revived a formalist, line-drawing approach to extraterritoriality.

It was in the spirit of Alliance, and not Boumediene, that this past August the D.C. Circuit shut the door on the application of procedural or substantive due process rights for Guantanamo detainees in Al Hela v. Trump. 972 F.3d 120 (2020). There, the D.C. Circuit, citing Alliance, went out of their way to hold that the Fifth Amendment does not apply at Guantanamo Bay. Without the co-extension of the Due Process Clause, the lasting effect of Boumediene’s strong interpretation of the Suspension Clause is considerably weakened.

The functional “impracticable and anomalous” test still applies when analyzing the reach of the Suspension Clause. And areas where the U.S. exercises de facto sovereignty – like Guantanamo Bay – are “U.S. territory,” meaning the Alliance rule does not apply. But these are small echoes for such a great case.

The second key holding of Boumediene was its robust interpretation of the Suspension Clause. Decided in 2020, Department of Homeland Security v. Thuraissigiam is the first case interpreting the Suspension Clause after Boumediene. 140 S. Ct. 1959 (2020). In Thuraissigiam, the Court held that expediated removal procedures limiting judicial review for migrants did not violate the Suspension Clause because the plaintiff – a man seeking asylum – did not seek release but additional procedure.

There is much to be said about how Thuraissigiam affected Boumediene from its originalism to the misinterpretation of the writ in immigration cases. But one important implication of the case is its conception of the purpose of habeas corpus.

The interpretation of the history of habeas corpus and the current case law is split between two conceptions of habeas: a rights-centric view and a power-skeptical view. The power-skeptical view focuses an analysis of the Suspension Clause on the jailer – not the jailed. It questions the power of judiciary to review the “legality of the exercise of executive power,” as Justice Sotomayor put it in her dissent. Under this interpretation, the expediated removal procedures are unconstitutional for barring judicial inquiry into the legality of expeditated deportation orders.

On the other hand, a rights-centric view focuses on the jailed, not the jailer. It looks to the plaintiff’s (lack of) constitutional rights, not the legality of the Executive’s actions. But standing alone, those subject to Executive detention, whether the alleged enemy combatants in Boumediene or recently arrived migrants in Thuraissigiam, are likely to have little claim to constitutional right. A rights-centric Suspension Clause is a weak Suspension Clause.

Boumediene embraced the power-skeptical view. The majority proclaimed: “The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches.” But the Court in Thuraissigiam undermined this power-skeptical view by concentrating solely on the plaintiff’s lack of right instead of the illegality of the Executive’s action.

Some hope remains for Boumediene. The Boumediene court held “at an absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” The Court in Thuraissigiam, seizing on an apparent concession in a footnote in the plaintiff’s brief, analyzed the writ only as it existed in 1789. Future plaintiffs may be able to make claims based on post-1789 developments in the Suspension Clause jurisprudence. How the current court will handle those arguments – and whether Boumediene can be resurrected – remains to be seen.

*J.D. Candidate, 2021.

Posts by jlieditors

Volume 43, Issue 2 (2025)

Opportunity Zones: Gambling with Our General Welfare

A Substantial Interest: Why the Government is Legally Justified in Prohibiting Disparaging Trademarks

A Solution to Hoffman’s Choice for Unauthorized Workers: Creating New Incentives to Report Unlawful Workplace Discrimination

Proscribing Prescriptions: A Legal Analysis of State Off-Label Restrictions on Medication Abortion

2020 Summit for Civil Rights – Opening Statements

The TRACED Act: Encouraging Developments in the Fight Against Robocalls

Children’s Online Privacy in the Age of Influencers

The Intersection Between Antitrust Law and Labor Law – A Conversation with Professor Sanjukta Paul

Review of Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System by Alec Karakatsanis

Covid-19 in Prisons: Human Rights Violations and Inmate Exploitation

Locking the Door to the Country on the Way Out: The Trump Administration’s Final Attempt to Eliminate Protections for Asylum Seekers

2020 Summit for Civil Rights – The State of Multi-Racial America and Black Power

Avoiding Atkins: How Tennessee is on the Verge of Unconstitutionally Executing an Individual with Intellectual Disabilities

Elder Evictions: Relief Coming 2021

2020 Summit for Civil Rights – The State of American Apartheid

2020 Summit for Civil Rights – What Is To Be Done? How Can We Help?

2020 Summit for Civil Rights – Awards Ceremony

2020 Summit for Civil Rights – Who’s Profiting?

2020 Summit for Civil Rights – Is America Ready for a 2nd Reconstruction? A 3rd “Founding”?

Does the Minneapolis Police Department Traffic Stop Data Reveal Racial Bias?

Does the Minneapolis Police Department Traffic Stop Data Reveal Racial Bias?[1]

Introduction

Summary of Results

Data

Analysis

Conclusion

References

Why a Tuesday in November? An Original Intent Argument for Increased Voter Accessibility

An American Caste System: A Conversation with Professor Sheryll Cashin

The Law in Politics: A Conversation with Rep. Ryan Winkler

The Burying of Boumediene v. Bush

Minimum Wage and the Tipping Culture Divide