jlieditors, Author at Minnesota Journal of Law & Inequality

Mental Health & Criminal Justice: An Interview with Kelly Mitchell and Professor JaneAnne Murray

By jlieditors

Interview by Sarah Coleman*

October 3-9, 2021 was Mental Health Awareness Week. The United States’ prison and criminal justice systems are deeply interconnected with mental healthcare and mental illness. For many individuals, a mental illness diagnosis and subsequent treatment aren’t made available to them until after they come in contact with the criminal justice system. JLI Staff Member Sarah Coleman had the opportunity to speak with Kelly Mitchell, Executive Director of the Robina Institute, and Minnesota Law Professor JaneAnne Murray on how individuals, communities, and the legal system are impacted by the way the criminal justice and prison systems have become surrogates for a more robust mental healthcare system.

The following resources were consulted in preparation for this interview, and can be consulted for further information:

*Sarah Coleman, Class of 2023, Minnesota Journal of Law & Inequality Vol. 40 Staff Member

General Counsel Abruzzo’s Memoranda Indicate a Bold, Pro-Worker Agenda at Biden’s NLRB

By jlieditors

by Jon Erik Haines*

National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo came into her role in somewhat unceremonious fashion, following the sudden sacking of Trump administration General Counsel Peter Robb. Her tenure also began under the auspices of then-candidate Biden promising that he would be the “most pro-union president” we have ever had. If General Counsel Abruzzo’s first several memoranda are any indication, Biden may be able to keep his campaign promise through the strong pro-union direction of his NLRB. However, it remains to be seen whether an unequivocally pro-labor NLRB and a self-described union man in the White House will be enough to stem the decades-long tide of declining union membership without broader legislative changes.

The memoranda of General Counsel Abruzzo (as well as Acting General Counsel Peter Sung Ohr who served in the role after Biden’s firing of General Counsel Robb) indicate a desire to push the boundaries of the National Labor Relations Act (although perhaps not to its limits). If the policies called for in these memoranda are adopted, workers attempting to organize their workplaces would receive stronger protections and noncompliant employers could expect harsher penalties for their violations of the National Labor Relations Act (NLRA). The memoranda also call for a broader number of workers to be protected by the Act.

In MEMORANDUM GC 21-03: “Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines,” acting General Counsel Ohr describes how the General Counsel’s office will attempt to protect workers standing up for themselves in their workplaces. The memo strongly affirms the “fundamental right” that workers have to organize and stand up for themselves free from any employer retaliation. Specifically, the memo takes a broad interpretation of what it means for a worker to be acting for “mutual aid or protection.” The memo argues that workers should be protected from adverse employment action when their protests are tied to their interests as workers, even if their protests are not aimed at specific management practices or are aimed at practices outside of management’s control. (For example, under the protections proposed by the memorandum, workers would be protected while protesting with the Fight for $15 movement.) The memorandum also argues that conversations between only two coworkers, or conversations that do not directly contemplate group activity should remain protected by the NLRA if the conversations are regarding certain “vital categories of workplace life” such as wages, workplace safety, and racial discrimination (i.e. “inherently concerted activity”).

A more recent memorandum (MEMORANDUM GC 21-06: “Seeking Full Remedies,” published on September 8, 2021) outlines how General Counsel Abruzzo plans to expand the remedies available to aggrieved workers under the NLRA. This memo “calls for a complete overhaul of NLRB remedies.” This overhaul is much needed, as research has demonstrated that employers routinely flout the NLRA’s worker protections with few repercussions. The memo contains a list of remedies that regional offices should seek when faced with an employer’s Unfair Labor Practice (conduct prohibited by the NLRA), including:

Reimbursement of a union’s bargaining expenses incurred as a result of employer’s bad faith bargaining;
An expansion of the make-whole remedies available to workers who were discriminatorily discharged to include front pay, liquidated (i.e. double) back-pay, as well as consequential damages such as credit card late fees or loss of a home or car due to missed payments that occurred as a result of the termination.
Equal time for unions to address employees during organizing campaigns, reimbursement of organizing expenses, installment of a union-chosen replacement for any worker who is unlawfully fired during an organizing drive
Restitution based on the unjust enrichment of employers who fire undocumented workers in violation of the NLRA.

These broad remedies could force employers to think twice about taking actions in violation of the act.

Additional memoranda have described other ways the General Counsel will seek to expand the power of the NLRA. One called for a review of a series of anti-worker decisions that came out of the Trump administration’s NLRB. Another expressed the intention of the General Counsel to seek injunctions to prevent Unfair Labor Practices from affecting organizing and contract drives. The memorandum that most boldly departs from precedent is “Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act,” which calls for extending the NLRA’s protections to collegiate athletes. In that memorandum, Abruzzo states “[w]hile Players at Academic Institutions are commonly referred to as ‘student-athletes,’ I have chosen not to use that term in this memorandum because the term was created to deprive those individuals of workplace protections.” The broad and comprehensive attitude General Counsel Abruzzo has taken in her memoranda indicates that more strong, pro-worker memoranda may be forthcoming.

These memoranda represent a call for a change in the law, but due to the complex structure of the American labor law system, the existing precedent will not be overturned until the General Counsel has an opportunity to argue particular cases dealing with these issues before the NLRB. The NLRB then would decide on the basis of the facts of the case, and the outcomes will depend on the ideological make-up of the Board when the case is heard. On top of that, NLRB decisions can be reviewed by the federal circuit courts, which have refused to enforce pro-worker NLRB decisions in the past.

There are also needed pro-worker changes to labor law that cannot be achieved simply through reinterpretation of existing NLRA law, but instead require congressional action. Congressional Democrats on their own could pass some of those changes through reconciliation, while others would require 60 votes in the Senate and thus the cooperation of Republican senators. As it currently stands, an existing version of the reconciliation bill contains an expansion of NLRA penalties, but that bill is expected to be re-written yet again, leading to uncertainty as to whether the labor reform provisions will be included in the final draft. (It is worth noting that these provisions would actually be revenue positive for the government, as they would allow for the NLRB to enact greater fines on non-compliant employers.)

Beyond the law, economic trends such as financialization and outsourcing have undermined workers’ leverage by pitting them against lower-cost labor in domestic and international jurisdictions with fewer worker protections. However, despite the anti-worker headwinds, American workers are showing signs of discontent with their current lot, leading to hope for a surge of worker activism. While significant obstacles remain to building a legal framework that is more conducive to worker organizing, the recent NLRB General Counsel memoranda are strong indicators that the Biden administration is serious about following through on its campaign promises to the labor movement.

*Jon Erik Haines, University of Minnesota Law School Class of 2022, JLI Volume 40 Symposium Editor

The Shadow of Buck v. Bell: How Ignoring the United States’ History of Forced Sterilization Has Fostered an Environment Ambivalent to Widespread Abuse

By jlieditors

By Mercedes G. Molina*

(For a background on sterilization procedures and a brief history of sterilization practices in U.S. prisons, see The Long Scalpel of the Law: How United States Prisons Continue to Practice Eugenics Through Forced Sterilization.)

In 2020, the New York Times reported on a whistle-blower complaint which claimed that immigrants in the Irwin County Detention Center (ICDC) in Ocilla, Georgia were being subject to invasive gynecological procedures, including forced hysterectomies.^[1] The initial report was filed by Project South and reflected information provided by Ms. Dawn Wooten, a gynecology nurse at ICDC.^[2] Ms. Wooten expressed concern at the high rate of hysterectomies being performed at the ICDC by one physician, Dr. Amin, saying “Everybody he sees has a hysterectomy—just about everybody.”^[3] Wooten’s complaint continued to identify five women whom she spoke to at ICDC between October and December of 2019 who had a hysterectomy, noting the women were confused in learning what had been done to them.^[4] Wooten also described an understanding among the female inmates at ICDC that Dr. Amin provided medically unnecessary procedures without consent, causing many women to fear any medical treatment in the detention center, often even refusing to be seen completely.^[5] The allegations of Ms. Wooten, while extremely disturbing, are deeply reminiscent of the dark history of the American Eugenics Movement, so much so that one has to wonder whether the legal system’s ambivalence towards eugenic practices has fostered an environment ripe for the kind of abuse faced by immigrant women at ICDC.

As early as 1895, the State of Connecticut passed a law prohibiting marriages among the “feeble-minded,” hoping that the statute would prevent procreation amongst those deemed “inferior.”^[6] Soon after, states began creating laws that allowed for the compulsory sterilization of people institutionalized or incarcerated by the state for either cognitive disabilities, mental health illnesses, or due to the violation of a criminal statute.^[7] The first of these laws was enacted in Indiana in 1907 and became the model for other states and even later for eugenics practices performed in Nazi Germany.^[8] Unfortunately, the courts have failed to not only stop these practices, but have actually promoted them, in many instances.

In the infamous 1927 eugenics case Buck v. Bell, the Supreme Court upheld a Virginia law that allowed for the compulsory sterilization of a woman deemed “feeble-minded.”^[9] The opinion, written by Justice Oliver Wendell Holmes, reasoned that public welfare called for the limitation of certain groups of people to bear children in order “to prevent our being swamped with incompetence.”^[10] Holmes went on to say that “[i]t is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for imbecility, society can prevent those who are manifestly unfit from continuing their kind.”^[11] While the 1942 decision Skinner v. Oklahoma later limited the opinion of Buck v. Bell, finding laws which allowed for the sterilization of “habitual criminal[s]” unconstitutional under the Fourteenth Amendment, Buck v. Bell still stands today.^[12] Skinner only directly addressed sterilization laws that affected habitual criminals and many scholars believe the Court likely only found a violation of due process because the compulsory sterilization law in question exempted those incarcerated for crimes of embezzlement.^[13] Further, Skinner failed to directly address key constitutional questions surrounding forced sterilization, including whether it constitutes cruel and unusual punishment.^[14] This failure has left the door open for continued abuse.

Since Buck v. Bell was decided, approximately 70,000 people have been legally sterilized under state compulsory sterilization laws.^[15] Today, most, if not all, of the 30 states with compulsory sterilization laws on their books have repealed these laws.^[16] However, the legal framework that allows for the practice still exists due to the lack of repeal of Buck v. Bell and lack of expansion of Skinner v. Oklahoma.^[17] This has undoubtedly fostered an environment ambivalent to widespread abuse, especially for women and people of color who have faced some of the worst consequences.

Forced sterilizations have persisted into the late 20^th and 21^st centuries. In the 1970s, federal welfare programs like Medicaid began funding forced sterilizations as a “cost-cutting” measure, impacting over 100,000 Black, Latino, and Indigenous women.^[18] The 1974 case Relf v. Weinberger dealt with the forced sterilization of two twelve- and fourteen-year-old Black girls whose mother was misled and coerced into signing a consent form on behalf of her daughters.^[19] The case sounded the alarm that people in the South, primarily women of color, were systemically being forced to agree to sterilization through intimidation and threats by doctors to withhold welfare benefits or medical care. The case and the accompanying public outcry led to Department of Health, Education, & Welfare (HEW) protections which barred federally-funded sterilization of minors and imposed a moratorium for sterilization on people under the age of twenty-one.^[20]

In those same years, the civil suit Madrigal v. Quilligan exposed another instance of systemic forced sterilization, this time on primarily Spanish-speaking Mexican-American women in the Los Angeles County Medical Center.^[21] These Spanish-speaking women were coerced and pressured by healthcare providers into signing consent forms that were in English only, often while they were heavily medicated or during labor. Again, courts scrambled to protect abusers, finding that the healthcare professionals should not be blamed because the harm was “essentially the result of a breakdown in communication between the patients and the doctors.”^[22] The systemic practice of forcibly sterilizing women of color continued. Between 1973 and 1976, the General Accounting Office found that 3,406 Native American women had been sterilized by Indian Health Services without being informed of the permanence of the procedure or given other contraceptive options.^[23] It is estimated that U.S. Indian Health Services sterilized as many as 70,000 Native American women from the 1960s to the 1980s.^[24] Few of these women had the opportunity for legal recourse and those who did were largely unsuccessful.^[25]

Despite the minimal safeguards put in place by HEW—prohibition of sterilization of people under twenty-one, prohibition of sterilization of people who are mentally incompetent or institutionalized, creation of a 30-day waiting period for sterilization following written consent^[26]—and the establishment of implied consent principles in the medical field,^[27] forced sterilizations have persisted at alarming rates among low-income women and women of color. From 2006 to 2010, nearly 150 women in California prisons were sterilized without the state’s approval.^[28] In 2017, a Tennessee judge signed a standing order that would allow for 30 days of jail credit given to incarcerated people in exchange for their undergoing a “procedure providing long-term birth control.”^[29] And of course, the 2020 whistleblower report of forced hysterectomies being performed on immigrant women in Georgia.^[30] In all these cases, the legal system, either formally or informally, played an active role in the abuse of vulnerable people.

The depth of the legal shadow of the American Eugenics Movement looms over today’s struggle for reproductive justice and bodily autonomy. Georgia reminds us of the reality that the United States legal system and institutions like the Department of Homeland Security, have either sanctioned or acquiesced to the sterilization of low-income women and women of color on a widespread basis. The paternalistic culture of the medical field, the disregard for language barriers, the lack of attention to implied consent, the lack of real repercussions for abusive physicians, and the rampant abuses of incarcerated people have all perpetuated the legacy of the American Eugenics Movement. Even where consent has been obtained in a non-coercive manner, studies have revealed that the language of Medicaid consent forms is overly complicated.^[31] Still, little has been done to acknowledge this dark history or address the systemic principles that have allowed for such abuse. It’s time that the legal system reckons with its perpetuation of the legacy of eugenics and how this has empowered continued abuse. It’s time to take a hard stance against eugenics and overturn Buck v. Bell.

*Mercedes G. Molina, Class of 2023, Minnesota Journal of Law & Inequality Vol. 40 Staff Member

^[1] Caitlin Dickerson, Seth Freed Wessler, & Miriam Jordan, Immigrants Say They Were Pressured Into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020), https://www-nytimes-com.cdn.ampproject.org/v/s/www.nytimes.com/2020/09/29/us/ice-hysterectomies-surgeries-georgia.amp.html?amp_js_v=a6&amp_gsa=1&usqp=mq331AQKKAFQArABIIACAw%3D%3D#aoh=16334035934260&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.nytimes.com%2F2020%2F09%2F29%2Fus%2Fice-hysterectomies-surgeries-georgia.html.

^[2] Id. See also Project South, Georgia Detention Watch, Georgia Latino Alliance for Human Rights, & South Georgia Immigrant Support Network, Re: Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID-19 for Detained Immigrants and Employees Alike at the Irwin County Detention Center, Project South (Sept. 14, 2020), https://projectsouth.org/wp-content/uploads/2020/09/OIG-ICDC-Complaint-1.pdf.

^[3] Project South, Georgia Detention Watch, Georgia Latino Alliance for Human Rights, & South Georgia Immigrant Support Network, Re: Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID-19 for Detained Immigrants and Employees Alike at the Irwin County Detention Center, Project South, 19 (Sept. 14, 2020), https://projectsouth.org/wp-content/uploads/2020/09/OIG-ICDC-Complaint-1.pdf.

^[4] Id. at 18–19.

^[5] Id. at 20.

^[6] Fresh Air: The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 7, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations.

^[7] Id.

^[8] Id. See also Indiana Historical Bureau, 1907 Indiana Eugenics Law, State of Indiana (last visited Oct. 31, 2021, 10:35 AM), https://www.in.gov/history/state-historical-markers/find-a-marker/1907-indiana-eugenics-law/.

^[9] Buck v. Bell, 274 U.S.200, 205 (1927).

^[10] Id. at 208.

^[11] Id. at 208.

^[12] Leita Powers, Could Forced Sterilization Still be Legal in the US?, Syracuse U.L. Rev. (2020), https://lawreview.syr.edu/could-forced-sterilization-still-be-legal-in-the-us/.

^[13] Rachel Gur-Arie, Skinner v. Oklahoma (1942), The Embryo Project Encyclopedia (Aug. 27, 2016), https://embryo.asu.edu/pages/skinner-v-oklahoma-1942.

^[14] Powers, supra note 12.

^[15] Id.

^[16] Id.

^[17] Id.

^[18] Thomas M. Shapiro, Population Control Politics: Women, Sterilization, and Reproductive Choice 90 (Sheryl Ruzek & Irving Kenneth Zola, eds., 1985).

^[19] Id. at 90–91.

^[20] Id. at 91.

^[21] See Madrigal v. Quilligan, 639 F.2d 789 (1981). See also Shapiro, supra note 18, at 91.

^[22] Shapiro, supra note 18, at 91.

^[23] Id.

^[24] Clementine de Pressigny, This Film Is Exposing the Forced Sterilization of Native Americans, Vice i-D (Dec. 6, 2018), https://i-d.vice.com/en_uk/article/kzvpqv/this-film-is-exposing-the-forced-sterilization-of-native-americans.

^[25] Id.

^[26] Sonya Borrero, Nikki Zite, Joseph E. Potter, James Trussell, Medicaid Policy on Sterilization—Anachronistic or Still Relevant?, 370 N. Engl. J. Med. 102 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4418554/.

^[27] See Lisa Napoli, The Doctrine of Informed Consent and Women: The Achievement of Equal Value and Equal Exercise of Autonomy, 4 Am. U.J. Gender & L. 335; Nancy K. Kubasek, Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine, 4 Mich. J. Gender & L. 375.

^[28] Corey G. Johnson, Female Inmates Sterilized in California Prisons Without Approval, Reveal News (July 7, 2013), https://revealnews.org/article/female-inmates-sterilized-in-california-prisons-without-approval/.

^[29] Kalhal Rosenblat, Tennessee Judge Who Offered Sentence Reductions for Vasectomies Changes Course, NBC News (Jul. 28, 2017), https://www.nbcnews.com/news/us-news/tennessee-judge-who-offered-sentence-reductions-vasectomies-changes-course-n787401.

^[30] Dickerson, supra note 1.

^[31] One study showed that 34% of respondents asked to review Medicaid sterilization consent forms incorrectly understood the permanence of the procedure. Borrero, supra note 26.

The Supreme Court Vacated the CDC Eviction Moratorium – Now What?

By jlieditors

By Laura Burns*

The White House had warned that the CDC’s latest eviction moratorium may not withstand legal challenge. Justice Kavanaugh had signaled that it could not continue without explicit congressional approval. The CDC had issued the eviction moratorium the previous year to keep people in their homes during the pandemic. As more people lost their jobs and struggled to pay rent, the CDC warned that mass evictions would undermine public health control measures. On August 26, 2021, the Supreme Court struck down the moratorium. In doing so, the Supreme Court took away the shield that had protected an estimated 1.55 million renters from losing their homes.

So, now what? Renters still need help. Following the Supreme Court’s decision, an estimated 3.5 million renters believe they are about to be evicted. Over two million of these live in states with no eviction moratorium.

One answer is the federal Emergency Rental Assistance Program (ERA), a $46.5 million dollar fund for emergency rental assistance. Admittedly, the program has had a rough start. Despite it being one of the largest federal housing aid funds in generations, only a small fraction of it had been distributed by August 1, 2021. Experts identified several causes for the slow distribution, including burdensome documentation requirements for renters, insufficient staffing in administrative offices, and application requirements ill-suited for alternative employment and alternative leases.

Thankfully, the ERA is beginning to disburse funds more quickly. The Treasury Department distributed over $2.3 billion dollars in August, almost twice the amount distributed in the previous two months. Many local programs administering the funds are also adopting a more flexible approach to their application process, allowing self-attestation so that vulnerable renters are not stopped by onerous documentation requirements.

But problems remain that the ERA program has not been able to address. Gene Sperling, the White House’s pandemic relief coordinator, expressed concerns that statistics are not picking up all vulnerable tenants, specifically referencing those who have self-evicted in order to avoid the humiliation of being evicted.

Another major roadblock is that many landlords refuse to accept the federal funds. They do this for a variety of reasons. One is that many landlords do not want to abide by the terms of the ERA program, which include agreeing not to evict tenants for a prescribed number of days or increase the rent. Other causes include not understanding the tax implications, not wanting to provide a W-9, and not wanting to participate in a government program at all. A report by the National Low Income Housing Coalition notes that small-scale landlords who do not report their rental incomes to the IRS may be especially reticent.

The current housing market also disincentivizes landlords from participating in the program. Since the pandemic, some households have migrated away from large cities to smaller cities and suburbs. As the median rents rise in these areas, landlords are more eager to evict low-income renters and increase the rent.

Apart from the landlord problem, many renters have alternative rent agreements that make it difficult to apply for ERA funds. Some low-income tenants do not have a formal lease, sublease from friends, or live in illegal units. Rental aid programs that require documentation of leases make it harder for these tenants to receive aid. Local programs that have simplified documentation requirements appear to be getting assistance to renters more quickly. However, many program administrators retain onerous requirements due to fraud concerns.

There are alternatives. As mentioned above, more and more programs are allowing self-attestation in the place of documentation. Many programs also offer options to circumvent a landlord’s refusal to participate and pay the rental assistance directly to the tenant. Direct-to-tenant payments also allow renters in alternative rent situations to receive assistance despite a lack of formal documentation.

However, some local programs require additional documentation for direct-to-tenant payments that make the process more difficult for eligible tenants, including proof of payment. Additionally, many local programs have not adequately informed the public about the direct-to-tenant option, so many renters remain unaware of the possibility. Until these issues are addressed, many vulnerable renters will remain unable to access ERA funds.

The rent assistance program undoubtedly plays a critical role in keeping people in their homes. Stakeholders are also implementing additional measures to prevent eviction. But it has only been just over a month since the moratorium ended, and its absence puts new pressure on these programs. With the Supreme Court’s decision leaving the fate of many renters uncertain, the effectiveness of the rental assistance program remains to be seen.

* Laura Burns, Class of 2022, Minnesota Journal of Law & Inequality Vol. 40 Staff Member

Preventing Bias with the Model Rules of Professional Conduct: An Interview with Professor Jon J. Lee

By jlieditors

Interview conducted by JLI Vol. 40 Lead Online Editor Hannah Stephan

Model Rule 8.4(g) of the ABA Model Rules of Professional Responsibility attempts to curb harmful bias and discrimination in the legal profession, but states ultimately decide which regulations govern members the local bar. In this interview, University of Minnesota Law School Professor Jon J. Lee describes the different ways states regulate bias in the legal profession and the effects of those various approaches. Professor Lee explains how inconsistent application of these rules, especially when combined with a lack of transparency in enforcement, can harm members of marginalized communities.

For further information, please refer to Professor Lee’s article on this subject:

Jon J. Lee, Catching Unfitness, 34 Geo. J. Legal Ethics 355 (forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3668538.

Where is the U.S. Military?: An Update on the Department of Defense’s Efforts to Prevent Sexual Assault and to Protect Victims

By jlieditors

by Thor Hawrey*

It is often said that the United States military is the strongest fighting force on Earth. With around 2 million members, 13,000 aircraft, and the lion’s share of 11 out of the world’s 43 aircraft carriers, it’s hard to deny that assertion. However, our nation’s military has not been able to avoid the historically common issues that have faced the great militaries of history. One such problem, which has recently seen an increase in coverage due to movements like #MeToo and some high-profile cases, is that of sexual assault against the women who volunteer to dutifully serve our nation.

One recent high-profile case that has helped serve as an impetus for this important issue to gain some more national coverage is that of Spc Vanessa Guillen, who was murdered in the spring of 2020. Though she was murdered in April, her body was not found until July. The Army’s search and investigation were sluggish and only began to take up any real urgency due to the diligence of Vanessa’s family and of protestors nationwide. In response to the strength of the #IamVanessaGuillen movement, the U.S. Army opened a special investigation into the handling of the case itself as well as into the command and cultural climate at Ft. Hood, the base at which Vanessa was stationed. The reasoning for the latter aspect of the special investigation was to address the claims by Vanessa’s family that she had been sexually harassed at the base prior to her murder. The investigation found that the command climate at Ft. Hood created a “permissive environment for sexual assault and sexual harassment” and resulted in 14 Army leaders being suspended or relieved of command. The report demonstrated that the system for prevention of sexual assault was not working and that there is a need for a system that effectively deals with the problem of ineffective implementation by commanders.

This report was only the beginning for what would come next as it became clearer that reform was, and still is, needed. Sadly, neither the culture at Ft. Hood nor Vanessa Guillen’s case are unique occurrences in the military. In fact, approximately one in every four active duty female military members reports having been raped or sexually assaulted. This comes out to around 12,000 female military members per year, though it’s predicted that approximately two thirds do not make reports. Though the one quarter of women in the military figure mentioned above is similar to the roughly one fifth of women in the general population who have experienced attempted or completed sexual assault in the U.S., the difference here has to do with the venue in which these crimes occur. Placing this in perspective is a statement by Meghann Myers, the Pentagon Bureau Chief for Military Times:

You know, if [one in] four female reporters were sexually assaulted by the reporters in the newsroom, right? Or if one in four female nurses were sexually assaulted by doctors in the hospital, that would be outrageous. You know, we would never accept that in those[…]small communities, that prevalence. These are, again, supposed to be the people that you would die for. And yet, you are, you know, victimizing them.

Shockingly, however, the issue of sexual assault in the military may seem hopeless to many as less than one percent of the annual cases see a conviction. Additionally, the damage of sexual assault extends to both the victim and the military. Currently, a female military member is more likely to get post-traumatic stress disorder from being sexually assaulted or harassed than from actual combat. Due to this trauma, as well as the many other complex reasons associated with sexual assault, many victims feel trapped, have suicidal thoughts, and opt to leave the military. Those who desire to serve and protect us must forfeit their careers due to an inability for us to protect them.

With so much on the line for these heroes, the question must be asked: what is the Biden Administration doing to address pervasive sexual assault against women in the military? On September 22 of 2021, the Pentagon released its new eight-year plan based on its Independent Review Commission findings. Broken up into four stages, the plan aims to build back the trust of military personnel while overhauling how the military handles sexual assault. One of the main changes that the plan seeks to make is to do away with the current integration of commanders with the prosecution of sexual assault and harassment.

The currently integrated system, as per the Uniform Code of Military Justice, allows for commanders of those accused of these crimes to decide whether or not they are investigated or prosecuted. As demonstrated in many cases, such as what happened to the man who raped Private First Class Florence Shmorgoner in 2015, commanders may choose not to criminally charge individuals who they deem to have “good character,” despite the individual confessing to the rape. The Pentagon has historically defended this system as a means of ensuring institutional leadership, even though it has been repeatedly named as one of the biggest issues towards not only effectively prosecuting these crimes, but also towards creating a leadership culture which does not tolerate them.

The Pentagon’s new plan indicates a drastic shift from this historical defense. One senior official from the Independent Review Commission stated:

[T]hat we reject the notion that shifting legal decisions about prosecution from command to prosecutors diminishes the role of those commanders…We believe instead that it enhances their role, and places them in the lead of taking care of their people, the no. 1 job of commanders, and creating climates of no tolerance for sexual assault, sexual harassment and related crimes.

Though the Department of Defense has stated that it will do away with the commander’s ability to influence these decisions completely, the micro-level structure for the new prosecution system is still in the works. As of right now, the Pentagon has stated that charging decisions and handling of sexual assault cases will be given to an independent special victims prosecution office by 2027. This office, listed as the first item under the first implementation tier of the plan, is to be called the Office of Special Victims Prosecutors and will reside within the Department of Defense broadly. In addition, each branch has been told to create their own independent special victim’s prosecution offices within their Judge Advocate General Corps. As per the recommendations of the Independent Review Commission, the Secretary of Defense will appoint a lead special victims’ prosecutor who will oversee the lead special victims’ prosecutors from each branch (each of which will control their branch’s respective offices).

Though this proposed system has been a goal of reformers for a long time, it seems like the time for real implementation has finally come under the Biden Administration. Not only does sexual assault severely impact the heroes volunteering their youths to defend our nation, it also disproportionately affects the essential group of women Airmen, Soldiers, Marines, Seamen, and Guardians that our nation relies on to stay safe. This new prosecution structure should hopefully drastically help to improve their lives and to adequately address one of the biggest problems facing our armed forces.

*Thor Hawrey, University of Minnesota Law School Class of 2022, JLI Vol. 40 Note & Comment Editor

It’s Time to End the Use of Race & Gender Statistics in Damage Award Calculations

By jlieditors

By Joe Scanlon*

There are well-documented inequalities in the American legal system. For instance, numerous studies indicate that Black Americans are arrested more often and receive longer sentences than their White counterparts. Other legal inequalities, however, receive less attention but are just as prevalent. In civil litigation (e.g. personal injury lawsuits) for instance, White male plaintiffs are awarded more monetary damages on average than similarly situated people of color and women. This statistic holds true whether the damages are determined by a jury or via settlement.

A Look Behind the Curtain

Today, roughly 95% of personal injury claims result in confidential settlements, and race and gender statistics are frequently used to inform and guide settlement discussions. Unfortunately, most settlements are negotiated behind closed doors with strict confidentiality agreements, so the exact terms reached by the parties often remain unknown. This secretive process deprives us of important data on just how much race and gender can impact the terms of a settlement. Nonetheless, many trial lawyers and academics acknowledge that plaintiffs who are women and people of color receive less favorable settlements than their White male peers, and the use of race and gender based statistical tables is at least partially to blame.

Every now and then a case comes along that offers a direct look at how race and gender affect settlement and damage calculations. In 2014, a four-year-old Hispanic boy was diagnosed with significant brain damage due to the lead painted walls of his family’s apartment. The boy’s family sued the landlord, and the case went to trial. Because of the victim’s age, the family sought damages based on the boy’s loss of future earning capacity. An accountant testifying on behalf of the boy estimated a lost future earning capacity of $3.4 million because both of the boy’s parents were professionals who held Master’s degrees. By contrast, an accountant testifying on behalf of the landlord estimated the boy’s lost future earning capacity at merely $1.5 million. The accountant arrived at the lower figure because the boy was Hispanic, and therefore, only had a 7.37 percent chance of obtaining a Master’s degree like his parents. In other words, the boy’s estimated future earnings capacity was reduced by almost $2 million simply because of his race/ethnicity.

Gender can be a major factor in damage calculations as well. In a tragic case from 1996, a six-year-old girl and an unborn male fetus were killed in an automobile accident. Both parties to the ensuing lawsuit determined that the male fetus was entitled to a higher damage award than the girl, despite testimony indicating that the girl had “a level of intellectual ability and behavior that surpassed that of most other students,” in addition to having a college fund already set up in her name. Moreover, the male fetus’s mother had not completed college and the father was unknown, according to court records. Nonetheless, because he was a male, the unborn boy was projected to earn more over his lifetime than the exceptionally bright girl.

The Process of Calculating Damages

The aforementioned cases offer a rare look at a corner of our legal system that explicitly uses race and gender to determine how much victims (or their families) can receive as compensation for serious injuries or death. In these types of cases, experts called Forensic Economists are used to determine or estimate the potential income the victim could have made had they not been injured. The experts then provide recommendations to insurance companies in pre-trial settlement negotiations, or they testify before a jury in cases that go to trial.

In their analyses, these experts utilize actuarial tables for both adult and child plaintiffs to predict future income loss. A 2009 survey by the National Association of Forensic Economics (NAFE) showed that 43.6% percent of the respondents used both race and gender data when projecting lost wages. Moreover, 92 percent said they considered gender when projecting the annual wage for an injured child. For adult plaintiffs, experts take into account education and employment history, but they may also use race and gender statistics. For children (or those who lack a work/educational history) race and gender stats play a much more prominent role. First, the stats are used to predict educational attainment based on the child’s gender and race. Next, the stats are used to predict income for someone of the same race, gender, and predicted education level.

At first glance, the use of race and gender-based statistics may appear to be a neutral, data-driven approach, and defenders of the tactic say it is the most accurate way to calculate the losses incurred after an injury. In reality, however, the practice unjustly devalues the lives of racial minorities and women. Women and people of color continue to earn less income in our society, so the statistics used to estimate lost future income create an inherent disadvantage in settlement discussions and at trial for these demographics. For example, statistically a black female with a bachelor’s degree is expected to make $1.24 million dollars during her life versus a white male’s earnings of $2.28 million. Therefore, in a calculation of lost potential earnings, a Black woman starts settlement negotiations (or enters trial) $1 million behind a White man, regardless of her station or actual income earning potential.

Ultimately, the disparities that exist in race and gender-based data are the product of decades of intentional economic subjugation of these groups. That is, the data doesn’t reflect a neutral assessment of earning capacity, but rather the impact of discriminatory policies and barriers that racial minorities and women confront on a daily basis. Indeed, the use of race and gender data not only enforces existing discrimination, but it also perpetuates current disparities.

Legislating an End to the Practice

Because the practice of using race and gender statistics is so ingrained in modern litigation, the practice can likely only be stopped through legislation that bans it. Although there is currently no such bar to the use of gender and racial statistics in calculations of potential damages, the United States has banned the use of race and gender stats in some other calculations, so an act of legislation is a viable option.

Additionally, although no law exists at the Federal level, some states have taken steps to eliminate the practice of using race and gender stats to calculate damages. In 2019, California enacted SB 41, a bill which prohibited “the estimation, measure, or calculation of past, present, or future damages for lost earnings . . . from being reduced based on race, ethnicity, or gender.” The sponsor of the bill, Senate Majority Leader Bob Hertzberg (D-Van Nuys), commented that “[t]his practice perpetuates systemic inequity, and it tells companies that if you do bad things in poor communities with disadvantaged populations, your financial liability will be smaller.”

Likewise, New Jersey has a similar bill in the works. In December 2021, the New Jersey assembly and Senate panels advanced a bill that would bar reductions in damages paid for lost earnings based on race, gender, ethnicity, sexual orientation, and gender expression or identity in personal injury and wrongful death cases.

Moving forward, lawyers and advocates of a ban on the use of gender and race statistics in damage calculations should push for similar changes at both the state and Federal levels. As the judge in the case of the four-year-old Hispanic boy referenced above noted, “[r]ace and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American Dream . . . A traditional, automatic, unthinking approach by experts in the field can no longer be tolerated.”

*Joe Scanlon, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

Statement on COVID-19: Addressing Inequity Within Our Law School

By jlieditors

JLI Editorial Board

Over the past year and a half, the COVID-19 pandemic has highlighted deeply-rooted inequities within our law school community. Coupled with the normal pressures of law school, the pandemic has strained (and continues to strain) students’ mental, physical, and financial wellbeing. And the challenges brought by the pandemic are exponentially increased for students facing both long-standing and COVID-19–specific inequities––students of color, students with disabilities and preexisting health conditions, students who are parents, and others.

With nearly 1 in 4 University of Minnesota students testing positive for COVID-19 at the beginning of January,^[1] and an exponential increase in the daily average of new cases in Minnesota in the wake of Omicron,^[2] the Law School must better protect its students, especially given that in-person learning is required.

JLI requests that the University of Minnesota Law School provides equitable access to healthcare and education for its students. Such access includes:

Continually providing N95 masks to students.
Requiring that professors record their lectures, or provide live zoom links for students to follow along with their lectures, for students who contract or are exposed to COVID-19, so that students do not have to choose between community health and education.
Providing safe classroom environments, with the ability to socially distance, or allowing for synchronous instructions for courses that do not allow all students to meet safely in-person.
Providing a more substantive absence policy that: requires students to test negative before returning to campus if returning before a ten-day isolation period, outlines instructions for students who test positive, and affords accommodations to those who test positive.
Requiring students and faculty to be fully vaccinated (unless qualifying for a state-recognized exception), requiring proof of vaccination as part of enrollment, and enforcing the mask mandate for students and professors.
Providing better access to COVID-19 testing (whether at-home or in-clinic tests).

Further, JLI stands in solidarity with student groups who have already petitioned the University for improved COVID-19 accommodations. Without the safeguards of remote learning, and with the lack of clear guidelines for students with a COVID-19 exposure or positive test, the University of Minnesota Law School risks being the site of preventable COVID-19 spread. In order to preserve Minnesota Law’s high quality of education for all students, JLI hopes to see changed policies and more clear procedures which prioritize student health in the coming weeks.

[1] Ryan Faircloth, Minnesota Colleges Report Spikes in COVID-19 as Students Start Spring Semester, Star. Trib. (Jan. 17, 2022), https://www.startribune.com/minnesota-colleges-report-spikes-in-covid-19-as-studenstart-spring-semester/600136753/.

[2] Tracking Coronavirus in Minnesota: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2021/us/minnesota-covid-cases.html (last updated Jan. 23, 2022).

Above the Law: How Kim Potter’s Sentencing Serves as Another Example of Police Receiving Disproportionately Low Sentences

By jlieditors

By Jake Polinsky*

On February 18th, former Brooklyn Center Police Officer Kimberly Potter was sentenced to two years in prison for killing Daunte Wright. This sentence was a downward departure from the seven years recommended by the Minnesota sentencing guidelines for her first-degree manslaughter conviction. In explaining Potter’s sentence, Judge Chu did not focus on the tragedy of a young man who lost his life over expired license tags and a bench warrant. Instead, she spoke solemnly of the tragedy of an officer whose life has been inalterably changed over what she called “a tragic mistake.” The tragedy in the judge’s eyes was not another senseless killing of an unarmed Black man by Minnesota police, but rather the effect this killing had on “a woman who touched a lot of people in a good way.”

This sentence is yet another example of the criminal justice system’s inability to hold police officers responsible for abusing their positions of power. Of the at least fifteen officers who have caused death or injury by mistaking their gun for their taser in the last twenty years, only three have been found guilty. The two officers found guilty of manslaughter were sentenced to only two and four years in prison respectively. Of the eleven police officers convicted of murder between 2005 and the conviction of Derek Chauvin in 2021, officers received a sentence on average of 21.7 years (compared to an average of 48.8 years for civilians who commit murder).

A major reason police officers receive such disproportionately lax sentences is the way courts apply the purposes of punishment to them. The five main purposes of punishment are incapacitation, rehabilitation, retribution, specific deterrence, and general deterrence. Incapacitation aims to prevent future crime by imprisoning defendants at a high-risk of reoffending. Rehabilitation seeks to identify why someone commits crime and treat these issues so that they will not reoffend. Retribution punishes defendants in proportion to their blameworthiness for the crime they are convicted of committing. Specific deterrence attempts to prevent the defendant from committing future crimes by making them fear receiving the same or greater punishment again. Lastly, general deterrence similarly seeks to deter other potential offenders by making them fear getting a similar sentence to the defendant.

Judge Chu’s sentencing of Potter is a perfect case study of how these purposes of punishment are used to the benefit of police defendants. Potter, like many other officers charged and convicted of high-profile abuses of police power, was fired from her job as an officer, thus Judge Chu reasoned incapacitation would not be served as Potter is unlikely to commit further crimes. Judge Chu determined rehabilitation would not be served either because Potter, as a former police officer, had spent her life up to the point of killing Daunte Wright as a law-abiding citizen. In a similar vein, Judge Chu did not believe specific deterrence would be served, as again she viewed Potter as a law-abiding citizen who will not commit further crimes. The sole purpose Judge Chu believed would be served was retribution for the death of Daunte Wright. Similar justifications for a downward departure have been given in other police brutality cases, most notably in the sentencing of two of the police officers who beat Rodney King.

There are multiple problems in this reasoning which minimize the crimes of police officers and harm efforts to prevent them. For one, the repeated emphasis on how officers like Potter have lived crime-free lives and are unlikely to reoffend ignores the fact that this is considered by the sentencing guidelines. While the maximum sentence for first-degree manslaughter in Minnesota is fifteen years, the guideline recommends a sentence of about six to eight and a half years for defendants such as Potter who have no prior criminal history. Second, as the Ninth Circuit noted when it overturned the downward departure in sentencing of the officers who beat Rodney King, all criminal convictions carry with them collateral consequences, not just incidents of police brutality where officers lose their jobs and face societal condemnation. While it is a severe problem in the criminal justice system that these collateral consequences are often not considered, it leads to disproportionate justice when this only influences the sentences of police.

Lastly, and perhaps most important, Judge Chu spoke of the deterrent effect of incarcerating Potter only in terms of specific deterrence, not general deterrence. As she is no longer a police officer, it is true that Potter does not need to be deterred from committing further crimes of police brutality. But what of other officers? Potter killed Daunte Wright the very same week that Derek Chauvin was convicted of second and third-degree murder for killing George Floyd. In shooting Daunte Wright, Potter tragically added him to a long list of Minnesotans senselessly killed by police, including Jamar Clark, Philando Castile, Justine Damond, and most recently Amir Locke. While Potter’s attorneys argued a harsh sentence would send a dangerous message to police that their lives could be ruined for making mistakes, what of the message it would send that this conduct is unacceptable? What of the message it would send that the lives of Daunte Wright, George Floyd, Jamar Clark, Philando Castile, Justine Damond, and Amir Locke mattered, and that police can no longer treat these lives with so little care?

The downward departure in sentencing Kim Potter also illustrates the racial disparities in our criminal justice system. The United States Sentencing Commission has found that Black male defendants receive sentences on average 19.1 percent longer than similarly situated white male defendants. Black male defendants are 21.2 percent less likely to receive non-government sponsored downward departures, and even when they do receive non-government sponsored downward departures, they receive sentences that are 16.8 percent longer. As the Wright family’s attorney pointed out, former Minnesota officer Mohamed Noor, a Black Somali immigrant who shot and killed a white woman, was sentenced to fifty-seven months for committing second-degree manslaughter. Judge Chu differentiated the case, saying Noor’s conduct was more dangerous as he intentionally shot across his partner killing an unarmed woman. Of course, as the prosecution noted when they considered raising aggravated factors for an upward departure, Potter shot Wright while he was in the driver’s seat of his car, creating a danger to others in the car and passing vehicles as the vehicle then traveled forward into traffic.

Perhaps the difference that mattered was a white woman killing a Black man rather than a Black man killing a white woman. Studies of the death penalty across the country have found that defendants are more likely to be sentenced to the death penalty when their victim is white. Research has found in particular that defendants are more likely to receive the death penalty when the victim is a white woman. When the ACLU looked into the death penalty in 2003, it found that one hundred and seventy-eight Black defendants whose victims were white had been executed, compared to just twelve white defendants whose victims were Black. While Noor’s appellate lawyer Peter Wold would not go as far as to say race was determinative in the different sentences, he said “I don’t think it looks good.”

A harsher prison sentence for Kim Potter cannot bring Daunte Wright back. His life and future are forever lost. It could have brought a sense of some sort of justice for his family and the community that mourns his loss, however. Further, it could have sent a message that mistake or not, we cannot let police continue to take the lives of so many young Black men. Law enforcement is entrusted by the public with a great degree of power; they have a duty to handle that power with the greatest degree of care, not recklessly with little regard for the lives of the citizens they’re supposed to serve. If we want to avoid more tragedies like this, we need to stop granting police downward departures that tell them even when they’re convicted, they’re still above the law.

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

Immigration Under the Biden Administration: An Interview with Attorney Erin Schutte Wadzinski

By jlieditors

Interview by Grace Anderson*

After four years of anti-immigrant, “Build the Wall” rhetoric from the previous presidential administration, President Biden came into office with promises to revitalize our nation’s immigration system. Almost a year into the Biden administration, JLI Staff Member Grace Anderson checks in with immigration attorney Erin Schutte Wadzinski, owner of Kivu Immigration Law, PLLC, to discuss recent policy decisions and the extent to which they have helped or harmed immigrant communities in rural Minnesota.

The following resources were consulted in preparation for this interview, and can be consulted for further information:

*Grace Anderson, Class of 2023, Minnesota Journal of Law & Inequality Vol. 40 Staff Member

Black Name Discrimination: An Issue You Know With a History You Have Yet to Hear

By jlieditors

by Develyn Mistriotti*

“‘Georgie, how’d you feel when you walked off Master Howell’s place for the first time?’”. . . “‘Like a man,’ he said. . . . ‘I don’t need to tell you this, or maybe I do, because they have always favored you in a particular way. . . . I now rise when I want and I sleep when it is my will. My name is Parks because I said so. I pulled the name from nothing—conjured it as a gift to my son. It got no meaning except this—I chose it. Its meaning is in the doing. Do you get me, Hiram?’”[1]

I. Introduction

Our names are not merely devices used to present individuated identities to the world. Names are our psychological foundations. They situate our sense of self in the broader breasts of society and history by connecting us to the beliefs and values that have influenced our cultures and those of our progenitors. Our names reflect who we are, and they tell stories of how we became ourselves. It is often this connection—to family and our communities—that causes us to take pride in our names. They are greater than mere tools for telling the world who we are; they are our guides and biographers, influencing our thoughts and conduct through a sense of selfhood that is—both—individualized and communal, contemporary and historical.

I began to realize the significance of my name at nine years old. My mind listed from the lesson unfolding before my third-grade classroom toward questions of identity: Why is my last name Ferguson, but my mother’s is not? Was my biological father a Ferguson? Where does this name—my name—come from? After school, I posed these questions to my teacher, Mrs. Simmons-Watson, who was—if not merely my arch-nemesis—a loving and soulful mother-figure. She explained to me our history, relaying that, largely, our names were not originally ours but those of our disablers who lived long ago. Egalitarian from birth, I vowed to shed the name of my ancestors’ Irish-American enslavers and adopt one of my choice. I imagine my younger self to be proud of my doing so at my wedding sixteen years later.

Yet, a grander challenge endures for many Black Americans, including myself. Because we cannot reach across time to re-connect with our pre-enslavement identities, and adopting original Black names commonly results in housing, employment, and other discrimination, we are perpetually denied a central piece of our identities and, therefore, our freedom. This is the current state of Black Name Discrimination.

II. The Evolution of Black Names and Name Discrimination.

A. Naming Systems During American Slavery (1600s – 1860s).

Given the import of our names, it is no surprise, then, that American enslavers sought to demolish this source of African pride, identity, and desire for freedom. The practice of giving European names—mostly English, but also Dutch, French, and Spanish—to African people was viewed as essential to dampening the rebellious spirits among the enslaved. These names often intentionally lacked dignity (e.g., geographical names like “Africa” or temporal names like “Monday”), and—if necessary—they were reinforced via torture. A famous depiction of the struggle between American enslavers and enslaved people for control over their identity is found in the horrifying experience of Kunta Kinte in the fictional work, Roots: The Saga of an American Family, and subsequent film and TV adaptions. I strongly urge that the violent and graphic scenes from the film or TV adaption not be viewed by children absent considerate supervision. Under the heel of these unconscionable practices, the use of European names by enslaved people became increasingly common over America’s 250-year course of slavery.[2]

B. Naming Systems of Freed and Liberated Black Americans (1860s – early 1900s).

Once they re-gained freedom, almost all Freed and Liberated people maintained the name given to them by their former enslaver (which usually included the enslaver’s surname) or adopted a different European name, rather than adopting original Black names or African names.[3] In the decades following Emancipation, Black surnames changed far less than given names.[4]

Concentrated literature on the subject offers myriad explanations for the retention of European names by free Black Americans. Certainly, access to information about their pre-enslavement identities was an issue some 250 years after slavery began. A separate theory suggests, “[i]t is the old story of the conventional versus the unconventional, and with names, as with other things, group usages generally dominate.”[5] As to last names in particular, the same scholar writes, “American surnames represent an almost compulsory social or family pattern.”[6] Likely without realizing, this author implicated Du Bois’ theory of double consciousness, premising the argument that Freed and Liberated Black Americans felt the conflicting interests of two dueling identities: Blackness, which called for the adoption of African names; and Americanism, which traditioned the preservation of family names that were already universally European.[7]

Reinforcing extant social and psychological difficulties were the legal challenges and consequences of pursuing distinct names and formal name changes. As an initial matter, Black peoples’ access to government, including state civil courts, was all but barred, both, (A) in the early Reconstruction period, with the anti-canonical Dred Scott decision (1857) effectively denying the Black right to legal action until 1868 and the adoption or continued use of discriminatory Black Codes in many states to limit Black access to civil and criminal actions, and (B) well into the 1960s, via Jim Crow and other restrictive legal regimes. Perhaps the best evidence of the legal hurdles facing early Black Americans is the testimony of Freed and Liberated people themselves.[8] Ultimately, as reflected in the names of future Black generations, some or all of these barriers – social, psychological, and legal – comprised a system that would catapult the legacy of American slavery into the future.

C. Contemporary Naming Systems (1960s – Present): Evolved Discrimination and a Proposed Legal Solution.

Though still uncommon, the use of uniquely Black first names spiked in the 1960s and ‘70s, and it continues to rise today. [9] A similar change has not been noted for Black surnames. It tracks that the Civil Rights Era—a period known for the dogged pursuit of racial justice by Black Americans and allies—would excite the desires of many Black Americans for names of their own. As one author observes, the shift in Black naming practices may be “attributable to the Black Power movement,” as well as the “cultural movement of the 1990s . . . to affirm and embrace black culture.”

Yet, despite the progress, two troublesome conditions remain today. First, uniquely Black first and last names are still not very common. Instead, the most common Black surnames in the country—Williams, Johnson, Smith, and Jones—are largely traceable to American enslavers. A federal index of common first names sorted by race is unavailable. However, states and cities that recently published such lists report that the most common Black baby names are still almost completely European, with modified European names and names symbolizing Power becoming increasingly common but still only occupying low positions on those lists.[10]

Second, and more importantly, Black Americans choosing uniquely Black names can expect to pay the Black Tax[11] for doing so. The Black Tax in this area takes two forms: First is the (academically untreated) personal cost associated with changing one’s name. This includes the abandonment of one’s birth name (disconnecting them from loved ones with the same name), family disputes created by such a decision, and the perception (of family members and others in their community) that shedding a name for reasons tied to American slavery is an unusual, unnecessary, or even un-American decision.

The Black Tax’s second form is the most impactful and widely known: a racial discount applied exclusively to Black people’s applications, statements, and writings. As the following studies demonstrate, the use of uniquely Black names in application processes – such as for employment, housing, or financing – and professional writing settings decreases the applicant’s success and the reader’s perception of quality.

(1) During a Los Angeles field experiment in 2003, researchers sent a standard rental e-mail inquiry to 1,115 landlords advertising vacant apartments. Each e-mail bore either a distinctively Arab name, uniquely Black name, or traditionally White name. Despite being identical to the others, emails with distinctively Black names received negative responses (including no response at all) thirty-three percent more often than did inquiries bearing White-sounding names and ten percent more often than inquiries with Arab names.

(2) In 2003, researchers submitted thousands of job applications to employers in Chicago and Boston for management and entry-level positions.[12] On average, applications with distinctively Black names received fifty percent fewer callbacks than did those bearing White-sounding names.[13] By strategically increasing and decreasing qualifications, the researchers concluded that Black applications suffered a racial discount, by which “a White name yield[ed] as many more callbacks as an additional eight years of [Black] experience.”[14]

(3) After sending 83,000 applications to 108 Fortune 500 companies in the U.S., a 2021 study reported that applications with distinctively Black names were nine percent less likely to receive any response from employers.[15]

These studies reveal that America’s legal protections against racially discriminatory housing, employment, and other practices are vulnerable to—at least—implicit bias. A possible solution to the discriminatory application issue is the implementation of laws requiring anonymous, name-blind application processes.[16] In the employment context, various governments—including the United Kingdom, Germany, and Canada—have already adopted such regulations or experimented with doing so, often supported by third-party companies acting as a medium between employers and applicants. Admittedly, even in hiring, these laws cannot completely shield Black Americans from all forms of name discrimination. What the complete removal of names from applications offers is protection from discrimination in the initial screening process by delaying document reviewers’ access to a key racial indicator. This regulation would be a minimal step in the right direction, and other legal solutions would be needed.

III. Conclusion

Individually and societally, history is fundamental to understanding who we are. Black History relates hard fought victories: stories of grassroots accomplishments, unprecedented unions, and of David overcoming Goliath countless times. Black History also tells of tragic defeats: losses of old, losses anew, and losses systemically renewed. But history is not fixed in time. It winds as our stories do, as we live on. Black Name Discrimination has a place in this unfolding saga. So, while we cannot recover all that we have lost along the way, there is hope that we may—eventually—experience true liberty: to work, to learn, to live, and to name our children however we choose. Our actions—the actions of us all—will ultimately determine whether Black Name Discrimination amounts to a victory or a defeat. In this way, I am Black History.

*Develyn Mistriotti, University of Minnesota Law School Class of 2022.

[1] Ta-Nehisi Coates, The Water Dancer 58–59 (2019).

[2] See Newbell Puckett, American Negro Names 37–38 (1938) (explaining results from a case study on trends in Black naming systems from the 1600s through the early 1900s; reporting, for example, that thirteen percent of all enslaved people possessed African or Native American names in the 1700s, but that this figure dropped to less than one percent in the 1800s). Common African names used by the less than one percent of enslaved people who managed to retain them include Bamba, Samba, Bumbo and Cumba. Id.

[3] Id. at 35–36. Notably, in the late 1800s and early 1900s, uniquely Black names were: (A) African in origin, such as Quam, Sabra, or Sango, or (B) names designating empowerment, such as Prince, King, or Freeman. Id. at 38–41.

[4] Id. at 36.

[5] Id. at 35.

[6] Id. at 36.

[7] See W.E.B. Du Bois, The Souls of Black Folk 3–4 (1903) (“One ever feels his twoness,—an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body. . . . He would not Africanize America, for America has too much to teach . . . . He would not bleach his Negro soul in a flood of white Americanism, for he knows that Negro blood has a message for the world. He simply wishes to make it possible for a man to be both a Negro and an American, without being cursed and spit upon by his fellows, without having the doors of Opportunity closed roughly in his face.”).

[8] Quoting Voices from Slavery: 100 Authentic Slave Narratives 175 (Norman R. Yetman, ed., 2012) (accounting the testimony of Liberated people who detail challenges such as government pressure to choose legal names quickly after Emancipation, the loss of pensions for Black Civil War Veterans who changed their name but lacked proof of their past identity, and, generally, the daunting process of interacting with the government following a name change).

[9] Modern Black names tend to take two forms. First, words symbolizing Power are becoming increasingly popular. King, Royal, and Legend were among Georgia’s most common Black baby names in 2020. Other modern Black names—such as Jamal, Jayden, Londyn, and Karter—are European in origin and are customized according to the preferences for spelling and pronunciation of Black parents. Some scholars theorize that using modified European names for Black children began in the days of enslavement. See, e.g., Lisa D. Cook, Trevon D. Logan & John M. Parman, Distinctively Black Names in the American Past, NBER Working Paper 18802 (Feb. 2013). However, it is generally acknowledged that—among those Black people choosing uniquely Black names—this method did not become common until the 1970s.

[10] The searchable databases of Texas, New York City, and Georgia offer helpful examples of popular Black baby names in recent years.

[11] Black Tax has been defined in many different ways. Here, Black Tax means the costs attending systemic racism (or for remedying systemic racism) that fall exclusively on Black people.

[12] Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, NBER Working Paper 9873 (2003).

[13] Id., Table 1.

[14] Id. at 3.

[15] Other studies indicate conscious or implicit bias against the quality of Black professional writing, including in the legal field. See Arin N. Reeves, Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills (2014).

[16] David Hausman, How Congress Could Reduce Job Discrimination by Promoting Anonymous Hiring, 64 Stanford L. Rev. 1343, 1349 (May 2012).

Are New York’s Bail and Discovery Reforms in Renewed Danger?

By jlieditors

By Kenneth Cooper*

In recent years, New York has seen a number of criminal law reforms deemed necessary to modernize its criminal procedure. In 2020, new criminal discovery laws went into effect in New York State. This reform imposed a stricter timeline for the prosecution to fulfill its discovery obligations and created a presumption towards sharing evidence between both parties. That same year, another bill went into effect eliminating cash bail for most misdemeanors and some nonviolent felonies. However, following backlash from opponents to the reforms and some calls for a repeal of the bail reform, a swing of the pendulum is likely, signaling a heightened risk of injustice for criminal defendants.

Focusing on the current status of these reforms in New York draws attention to the many other attempts across the country to bring about fair criminal law reform, and how some of those reforms may fall prey to misdirected criticism. To understand the battle for and against criminal law reforms in one state is to better grasp similar battles nationwide. Tracking the status of these New York procedural reforms in particular (one increasing discovery obligations and the other reducing the use of cash bail in pretrial services) can shed further insight into how other attempts at reform, perhaps more substantive in nature, may play out.

The Modernization of New York’s Criminal Procedure

To characterize the reforms passed in 2019 as merely political moves is to downplay the decrepit and deeply flawed statutory schemes they replaced. The discovery reform, for example, replaced its predecessor which had not been significantly revised for nearly forty years. The new discovery law that went into effect just two years ago marked a necessary shift for New York State. Before the new discovery laws, New York operated with what was known as the “blindfold law,” earning its moniker for its tendency to keep defendants in the dark about what evidence prosecutors had against them. In fact, prior to the reform, state prosecutors had the discretion to withhold discoverable evidence until the start of the trial. From a first glance, it is clear how such a law could easily contribute to the number of plea deals accepted. The rationale is simple: the less the defendant knows about what evidence, if any, the prosecution has, the more likely the defendant is to accept a plea deal. As such, the New York Assembly, motivated by the interest in fairness for defendants, passed N.Y. A4360A, eliminating the old criminal discovery rules in their entirety and replacing them with Article 245 of the New York Criminal Procedure Laws.

Article 245 imposes stricter timeframes for the prosecution to produce discoverable evidence to defense counsel based on the type of case. In cases involving pretrial custody, the prosecution must fulfill its discovery obligations within twenty days. For cases without pretrial custody, that window extends to thirty-five days. Additionally, any and all supplemental discovery must be conducted at least fifteen days before the scheduled start of the trial. Perhaps most notably, the discovery reform created a presumption of openness, requiring automatic discovery of vast amounts of discoverable material, including but not limited to all statements made by the defendant or co-defendant, transcripts of grand jury testimony, names and contact information of non-law enforcement personnel with evidence, names of law enforcement personnel, all expert opinion information, and all discoverable electronically stored information. The state assembly intended to provide criminal defendants with a more meaningful opportunity to investigate and fully weigh a plea offer by increasing the amount of information produced and decreasing the timeframe to produce it.

The bail reform similarly aimed to even the odds for defendants in a procedural manner, yet somehow generated greater controversy. Namely, it eliminated cash bail and encouraged alternative conditions for release in the event the judge determines a risk of nonappearance. This leniency only applies, however, to most misdemeanors and a handful of nonviolent felonies. In fact, § 510.10(4) of New York Criminal Procedure Code thoroughly details a wide variety of felonies to which the bail reform law does not apply. The rationale behind such reform rested on one common-sense principle to the bail regime: one’s wealth should not determine one’s freedom.

While these reforms have now been in place for just over two years, criticism has relentlessly followed. Such critics incessantly argue not just to repeal, but to establish newer laws that once again increase the burdens of defendants in a criminal case.

Opponents Create a Straw Man Out of the Reforms

Legislators foresaw the obligations imposed by the new discovery laws. In fact, when the discovery reform was passed, so too was a significant budget increase to support prosecutors across the state. Nevertheless, more financial support is needed to maintain the obligations and preserve the fairness afforded to the criminal defendants by the discovery reform. Last month, the District Attorney Association of the State of New York urged state lawmakers to provide hundreds of millions of dollars in additional funding to the sixty-two district attorneys’ offices in the state to support the efforts to comply with the new discovery laws. To be sure, the Association did not critique the discovery laws in any way—in fact, the president of the association reiterated the goal of the discovery laws to “make the system fairer to those accused of crime.” Rather, the goal of the letter to the state assembly was to call attention to the need for additional financial support to best meet the obligations imposed by Article 245.

However, many critics of criminal law reform—not connected to the district attorneys—are using the foreseeable financial strain as an opportunity to critique Article 245 and in the process call for reforms to the criminal justice system that would constitute a step backward. Many critics, as recently as last month, have jumped at the chance to argue for a repeal. Such critics particularly focus on the Bail Reform of 2019, pandering to the same statistical improbability that an individual released from pretrial detention commits a violent crime. On the contrary, data collected from January 2020 to June 2021 suggests that only 2% of all defendants released under the new bail reform act were rearrested for violent crimes. In an even further illogical leap, however, such critics blame the bail reform for something it never did: prevent judges from considering the dangerousness of the defendant when determining bail.

New York is one of the few states left barring preventive detention, that is, detaining a defendant on the sole basis of the risk to public safety they pose to the community. The lack of preventive detention in the state dates back to 1971, when state legislators deliberately chose not to include such a provision in the bail laws. Even on the federal level, preventive detention was only permitted following a massive bail reform act in 1984. In this regard, New York acts as a bulwark, upholding the presumption of innocence before a defendant’s trial, further inhibiting any preconceived notions of a defendant’s guilt. This well-established history of not permitting preventive detention has not stopped critics from attributing the practice to the Bail Reform of 2019.

Outlook Unclear

Are the bail and discovery reforms from 2019 here to stay? For the short term, it is likely so. For the long term, one invested in upholding fairness and the presumption of innocence in the criminal justice system can only hope. Legislators may eventually need to tweak elements here and there, provided that doing so keeps the central focus of the laws intact. Considering much of the criticism mentioned above invokes the Bail Reform Act of 2019 yet argues against a practice that has been in place since 1971, odds are such criticism stems from something beyond the recent reforms.

The critics’ toolbelt consists of false premises and a straw man fallacy. In relying on such, the critic misses both the purposes and the positive impacts the laws have had on the system so far. Removing the fallacies from the argument, all that remains is a desire for a more punitive approach to criminal law, at the expense of fairness for the criminal defendants in the state.

*Kenneth Cooper, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

No Humans Involved: The Dehumanization of Missing and Murdered Indigenous Women and Girls

By jlieditors

by Alida Weidensee*

No Humans Involved. This was the unofficial term used by members of the Los Angeles Police Department and other public officials to describe the murders of people of color and those in other communities deemed nonhuman.^[1] The use of this term came to light in 1992, following the acquittal of LAPD officers caught on video beating Rodney King.^[2] The process of dehumanization inherent in the term, first identified with encounters between law enforcement and Black Americans,^[3] was used in reference to other marginalized groups as well. No humans involved (NHI) has been used alongside terms like “misdemeanor murders” and “prostitute murders” to minimize the killing of women sex workers.^[4] While the term NHI sparked controversy in its own time,^[5] the attitude that the term represents remains pervasive in the present and finds its parallel in the treatment of missing and murdered Indigenous women and girls (MMIWG). In this post, I will begin by giving a brief background on the theory surrounding the term, and then place it in the broader context of dehumanization that occurs in MMIWG cases.

No Humans Involved and the Process of Dehumanization

The use of the term no humans involved (NHI) both reflected the public attitude toward marginalized groups, and allowed law enforcement to minimize their murders. As Sylvia Wynter wrote in her groundbreaking work, No Humans Involved: An Open Letter to My Colleagues, the dehumanization of young, unemployed, Black males allowed them to be subjected to the “genocidal effects [of] incarceration and elimination . . . by ostensibly normal, and everyday means.”^[6] Similarly, Norma Jean Almodovar, a former LAPD officer and prominent advocate for sex worker rights, has argued that “[t]erms like these make it clear that those of us who choose, for whatever reason, to engage in commercial sex are no longer considered a part of the human race.”^[7] While the term NHI came to light in its use by law enforcement and other public officials, media narratives and educational systems which maintain racial hierarchies have each been identified as contributing to the process of dehumanization.^[8] Discounting the violence against marginalized groups through the denial of their humanity allows the narrative of law enforcement as necessary defenders of the innocent to remain uncriticized.^[9]

Missing and Murdered Indigenous Women and Girls: Dehumanization and Violence

The history of dehumanization of Indigenous women is rooted in colonialism and is reflected in the current high rates of violence.^[10] A Department of Justice Report found that 84.3% of American Indian and Alaska Native women have experienced violence, and 56.1% have experienced sexual violence.^[11] Due to underreporting, the actual number of women who experience violence may be even higher.^[12] Further, most Indigenous women who experience rape are raped by non-Native men.^[13] Indigenous women and girls are rendered particularly vulnerable through dismissive attitudes toward the violence that they experience, a lack of resources, and jurisdictional issues. Each of these obstacles stands in the way of protecting Indigenous women and girls, and in their own way, each stems from the same type of dehumanization present in cases labeled NHI.

Law enforcement and the media regularly push narratives that dehumanize missing and murdered Indigenous women and girls. Coverage of these crimes frequently includes “narratives of disposability and brokenness”^[14] which treat violence as an exclusively tribal problem,^[15] and which attribute the deaths of Indigenous women and girls to their own “risky behaviour.”^[16] However, it is not only active narratives which contribute to this dehumanization; rather, activists argue that lack of media coverage and lack of data create three disappearances: “in life, in the media, and in the data.”^[17] The process of dehumanization also appears in the continued disregard for victims by law enforcement agencies, which have been frequently criticized for their lack of response to violence against Indigenous women.^[18] In this way, law enforcement and the media exhibit the same attitude toward these women as they have in previous cases labeled no humans involved.

Jurisdictional issues are also significant obstacles to justice.^[19] Decisions such as Oliphant v. Suquamish Indian Tribe,^[20] which prevent tribes from exercising jurisdiction over most non-Native offenders,^[21] are part of a broader dehumanization rooted in colonialism. In stripping tribes of their autonomy, the government created a gap in remedies for victims while denying the collective humanity of their communities.

Lack of resources and infrastructure for the prosecution and investigation of these crimes represent a further denial of the victims’ humanity. Federal prosecutors frequently decline to prosecute cases of sexual violence committed against Indigenous women and girls.^[22] Even when tribes have jurisdiction, the lack of prosecutors and resources for investigation often results in the dismissal of cases.^[23] The allocation of resources provides a window into which issues the government finds important. By failing to allocate adequate resources to protection of and remedies for Indigenous women and girls, the government reinforces their perceived lack of humanity.

Fighting Against Dehumanization

Growing recognition of missing and murdered Indigenous women and girls has sparked a movement to fight their dehumanization. Both victims themselves and their families have taken action to assert their personhood and the humanity of the women taken from them.^[24] Following the murder investigation of Gabby Petito, there have been attempts to draw attention to the disparate treatment of cases involving missing and murdered Indigenous women and girls.^[25] The passage of Savanna’s Act and the Not Invisible Act represents a step toward recognizing the humanity of victims through improved coordination in data collection and the creation of mechanisms for input and recommendations from victims and their families.^[26] However, commenters have noted that these actions fall far short of fully addressing the problem.^[27] This legislation will not resolve the dehumanization of victims and Indigenous peoples more broadly. Addressing that issue will involve taking a deeper look at law enforcement, the media, and all those who are currently allowed to decide which crimes have no humans involved.

*Alida Weidensee, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

[1] Sylvia Wynter, No Humans Involved: An Open Letter to My Colleagues, 1 Forum N.H.I.: Knowledge for the 21st Century 42, 42 (1994); See also Diana Cabili, “NHI” Condones Violence Against Prostitutes, in 9 Reflections 158, 158 (2010); Johnathon Briggs, The Weight of It All, Stanford Mag. (July 7, 2020), https://stanfordmag.org/contents/the-weight-of-it-all.

[2] Wynter, supra note 1, at 42; No Humans Involved, Hammer Museum, https://hammer.ucla.edu/exhibitions/2021/no-humans-involved (last visited Oct. 31, 2021).

[3] See Wynter, supra note 1, at 42.

[4] Cabili, supra note 1, at 167.

[5] Sylvie Drake, ‘MWI’ a Searing Wake-Up Call, L.A. Times (Jan. 11, 1993), https://www.latimes.com/archives/la-xpm-1993-01-11-ca-1042-story.html (reviewing an art exhibition criticizing the use of the term no humans involved).

[6] Wynter, supra note 1, at 45 (emphasis in original).

[7] Norma Jean Almodovar, For Their Own Good: The Results of the Prostitution Laws as Enforced by Cops, Politicians and Judges, 10 Hastings Women’s L.J. 119, 121 (1999).

[8] Wynter, supra note 1, at 53–54 (discussing the impact of the humanities and social sciences disciplines on racial hierarchies); Cabili, supra note 1, at 166–67 (describing the combined impact of police and media narratives).

[9] Tyler Wall, The Police Invention of Humanity: Notes on the “Thin Blue Line”, 16 Crime Media Culture 319, 322 (Dec. 2020) (“[T]he idea at the heart of TBL [the Thin Blue Line] is that the most routine mode of violent state prerogative—the police power—is imagined as always a defense of civilization, which at once means the ‘human species.’”) (emphasis in original).

[10] Megan Mallonee, Selective Justice: A Crisis of Missing and Murdered Alaska Native Women, 38 ALASKA L. REV. 93, 109 (2021); Luhui Whitebear, VAWA Reauthorization of 2013 and the Continued Legacy of Violence Against Indigenous Women: A Critical Outsider Jurisprudence Perspective, 9 U. Miami Race & Soc. Just. L. Rev. 75, 81 (2019).

[11] André B. Rosay, U.S. Dep’t of Justice, Violence Against American Indian and Alaska Native Women and Men 43 (2016), https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.

[12] Mallonee, supra note 10, at 100.

[13] Mallonee, supra note 10, at 100; Joseph Mantegani, Slouching Towards Autonomy: Reenvisioning Tribal Jurisdiction, Native American Autonomy, and Violence Against Women in Indian Country, 111 J. CRIM. L. & CRIMINOLOGY 313, 315–16 (2020).

[14] Josephine L. Savarese, Challenging Colonial Norms and Attending to Presencing in Stories of Missing and Murdered Indigenous Women, 29 CAN. J. WOMEN & L. 157, 160 (2017).

[15] Mallonee, supra note 10, at 100.

[16] Savarese, supra note 14, at 164.

[17] Seattle Indian Health Board, Urban Indian Health Institute, Missing and Murdered Indigenous Women & Girls 2 (2018), http://www.uihi.org/wp-content/uploads/2018/11/Missing-and-Murdered-Indigenous-Women-and-Girls-Report.pdf.

[18] See, e.g., Mallonee, supra note 10, at 96.

[19] Mantegani, supra note 13, at 315–16.

[20] 435 U.S. 191 (1978).

[21] Mantegani, supra note 13, at 319.

[22] Mallonee, supra note 10, at 101–02.

[23] Mantegani, supra note 13, at 317, 345–46.

[24] See, e.g., Savarese, supra note 14, at 173–74.

[25] See, e.g., Ruth Hopkins, What about the Missing Women Who Look Like Me?, The Cut (Oct. 1, 2021), https://www.thecut.com/2021/10/what-about-the-missing-women-who-look-like-me.html.

[26] Mallonee, supra note 10, at 117.

[27] See, e.g., Mantegani, supra note 13, at 348.

Who Is the Foreseeable User?: Manufacturers’ Duty to Warn Multilingual Users

By jlieditors

by Abbie Maier*

More than 350 languages are spoken in United States homes. In certain U.S. cities, Spanish speakers represent the majority of the population. In New York City and Houston, almost half of the people speak a language other than English at home, and in Los Angeles, the majority of the population speak languages at home other than English. Despite the high concentration of non-native English speakers in pockets of the United States, manufacturers are under virtually no obligation to provide warnings in alternate languages. A broad overview of relevant case law reveals that courts are sometimes sympathetic to illiterate or foreign-tongued plaintiffs, but that they are unwilling to extend a duty any further than to require pictorial warnings. Reform to FDA regulations should focus on expanding the duty to warn in multiple languages. Additionally, to better protect users who cannot adequately read product warnings, and to avoid costly litigation, manufacturers’ best practices should include clear symbols of serious product dangers.

I. Applicable Restatement Provisions

Generally, the Third Restatement of Torts: Products Liability § 2(c) governs warning failures.^[1] It provides that a product is defective due to inadequate warnings “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings . . . and the omission of the instructions or warnings renders the product not reasonably safe.”^[2] The Restatement gives no discernible guidance on the issue of multilingual warnings. Yet, the drafters of the Restatement were apparently aware of litigation concerning warning inadequacy due to failure to warn in alternative languages.^[3] No comment to the Restatement expressly discusses non-English speakers.

II. Illustrative Case Law Considering the Multilingual User

a. Stanley: A Court Brave Enough to Impose Liability

There is a surprisingly sparse amount of litigation surrounding the existence of a duty to warn in multiple languages. Stanley Industries, Inc. v. W.M. Barr & Co. (“Stanley”) is the most prominent example of a court willing to impose liability on a seller who failed to warn in a language other than English. In Stanley, Plaintiff alleged that two of its employees, brothers from Nicaragua who marginally understood English, were injured in a fire caused by the spontaneous combustion of rags soaked in linseed oil manufactured and sold by Defendants.^[4] Although it contained no symbols, the label unambiguously warned of spontaneous combustion in English.^[5] The Court held that “the alleged inadequacy . . . caused the product users to be unable to read the label on the can.”^[6] Other courts have been historically unwilling to impose any duty to warn in multiple languages; the Court in Stanley perhaps found liability where other courts have not because the facts were particularly egregious—the Defendants intentionally marketed products towards Hispanic communities while simultaneously refusing to warn in Spanish.^[7] Accordingly, some courts evade imposing a duty to warn in additional languages by distinguishing cases from Stanley’s highly particularized facts. For example, in Martinez, there was no indication that Defendants “intended to target Spanish-speaking populations or reasonably expected that its [product] would be sold to or used by Spanish speakers.”^[8]

b. Ramirez, Medina, and Farias: The Standard Bar Against Liability

A trio of cases (Ramirez, Medina, and Farias) stand for the more common position that manufacturers are rarely liable for failure to warn in a language other than English. In Ramirez, the four-month-old child Plaintiff contracted Reye’s syndrome after his mother administered aspirin to him.^[9] The product in this case clearly warned users about Reye’s Syndrome in English,^[10] but the California Supreme Court refused to impose a duty to warn beyond that defined by legislative or agency action.^[11] Although the FDA encourages labeling that meets the needs of non-English speakers, the FDA only mandates labeling in English, unless the product is distributed solely in a territory with a predominant language other than English.^[12] California law similarly required only English warnings.^[13]

Similarly, in Medina, the entire case depended on whether Defendants “were legally obligated to furnish Spanish warnings and instructions.”^[14] The Court here expressly disagreed with and declined to follow Stanley.^[15] In justifying this decision, the Court recognized that Stanley is an isolated case and in the fifteen years between the Stanley and Medina decisions, not one Florida case followed Stanley’s holding.^[16]

In 2010, in the same jurisdiction as Stanley, the Farias Court declined to impose liability on Defendant for failure to warn in Spanish.^[17] There, based on pictures on the product box that depicted individuals using a heater in a garage and in a warehouse, Plaintiff concluded that inside use was safe and she purchased two heaters.^[18] Indoor use caused Plaintiff’s home to catch on fire.^[19] Although many of the facts aligned with those in Stanley, the Farias Court noted that here, Plaintiff “made no effort to understand the instructions contained with the manual.”^[20] Additionally, nothing in the record indicated that Defendant purposefully directed its sales towards Spanish speakers, making any reliance on Stanley “misplaced.”^[21] More fundamentally, the Court cited Medina for the proposition that Florida law imposes no duty to provide bilingual warnings on consumer products.^[22] Farias was not the proper case for progress in the realm of multilingual warning liability; the Court’s hands were somewhat tied because it feared diverging from the duty already explicitly recognized by Florida courts.^[23] Both the lack of proximate cause from Ms. Faria’s willful ignorance of the warnings and precedent created by Medina necessitated the Court’s decision. Overall, non-English speaking plaintiffs’ ability to recover for injuries resulting from failures to warn in their primary languages looks grim.

III. FDA Regulation Suggests Pictorial Warnings

Although the FDA’s authority only extends to a limited category of products, the FDA provides a potential source of standards for manufacturers to warn in other languages or in symbols. Since courts seem unwilling to provide greater protection for non-English speakers and illiterate users, perhaps advocacy for greater tort law protection should focus on legislative and agency action. As the Ramirez Court noted: “Defining the circumstances under which warnings or other information should be provided in a language other than English is a task for which legislative and administrative bodies are particularly well-suited.”^[24]

Currently, the FDA only requires manufacturers to warn in English.^[25] The FDA permits manufacturers to use a territory’s primary language instead of English.^[26] However, if manufacturers separately decide to include “any representation in a foreign language,” they must match any English representations in those languages as well. Manufacturers would violate FDA regulations by including a single word or phrase in Spanish when there are longer English warnings. Together, these provisions likely disincentivize manufacturers from warning in any foreign language. Manufacturers who choose to include any foreign-language warnings are actually assuming greater liability.

On the subject of pictorial warnings, the FDA promulgated a rule in 2016 permitting the use of symbols absent explanatory text for medical devices if certain requirements are met. One of these requirements is the inclusion of a “symbols glossary.” The motivation behind this rule is to harmonize U.S. standards with international ones as the world becomes increasingly globalized. Additionally, the FDA found that use of stand-alone symbols would reduce design costs for manufacturers because its standards are more consistent with foreign market labeling.

IV. Ideal Versus Practical Solutions: Warning in Multiple Languages or with Symbols?

a. Adopting FDA Regulations that Impose Wider Duties to Warn in Multiple Languages

The multicultural makeup of the U.S. should render multilingual users foreseeable. Thus, for example, professor Keith Sealing argues that U.S. manufacturers should be held liable for not warning in Spanish when the product is sold to regions with dense Hispanic populations, the product is marketed towards Hispanic people, and when the product is used in industries with large portions of Hispanic workers. To protect multilingual users, the FDA should expand manufacturers’ duty to warn in other languages in line with Professor Sealing’s criteria.

b. Recommendation for the Time Being: Manufacturers Should Include Pictorial Warnings

Courts are weary of extending liability beyond pictorial warnings to avoid burdening manufacturers with the “onerous” obligation to warn in multiple languages and of cluttering warning content beyond what will be read.^[27] The FDA’s own current emphasis on the value of symbols reflects that the most realistic protection for these users will be found in pictorial warnings. Therefore, until courts or the FDA are willing to reform the duty to warn, manufacturers should still use pictorial warnings when its products are likely to end up in non-English speakers’ or illiterate users’ hands. As the global economy continues to be increasingly intertwined, many manufacturers will benefit from using warnings that better serve their multinational customers. In addition to protecting its multilingual users, manufacturers can avoid costly litigation and harmful press resulting from user injuries.

*Abbie Maier, University of Minnesota Law School Class of 2023, JLI Vol. 40 Note & Comment Editor

[1] Restatement (Third) of Torts: Products Liability § 2(c) (1997).

[2] Id.

[3] “The reporters of the Third Restatement . . . cited to [Ramirez] in the context of a discussion of compliance with legislation or regulations as non-conclusive on the issue of product defectiveness.”

[4] Stanley Industries, Inc. v. W.M. Barr & Co., 784 F. Supp. 1570, 1572 (S.D. Fla. 1992).

[5] Id.

[6] Id. at 1574.

[7] Id. at 1573.

[8] Martinez v. Triad Controls, Inc., 593 F. Supp. 2d 741, 764 (E.D. Pa. 2009).

[9] Ramirez v. Plough, Inc., 863 P.2d 167, 168 (Cal. 1993).

[10] Id. at 169.

[11] Id. at 168.

[12] Id. at 173.

[13] Id. at 174.

[14] Medina v. Louisville Ladder, Inc., 496 F. Supp. 2d 1324, 1326 (M.D. Fla. 2007).

[15] Id. at 1329.

[16] Id.

[17] Farias v. Mr. Heater, Inc., 757 F. Supp. 2d 1284, 1287 (S.D. Fla. 2010).

[18] Id.

[19] Id. at 1288.

[20] Id. at 1290.

[21] Id. at 1292.

[22] Id. at 1291.

[23] Id.

[24] Ramirez v. Plough, Inc., 863 P.2d 167, 174 (Cal. 1993).

[25] 21 C.F.R. § 101.15.

[26] Id.

[27] Ramirez, 863 P.2d at 175–76.

The Sex Offender Registry is a Life Sentence for Juveniles

By jlieditors

by Layni Sprouse*

In 1990, in the wake of her 11-year-old son Jacob’s kidnapping, which grabbed the attention of the entire county, Minnesota native Patty Wetterling believed it crucial to take action to protect children against sexually violent offenders. Due to her efforts and the tragic story of her son, the first sex offender registry was created in Minnesota in 1991. In 1994, Congress enacted the Jacob Wetterling Act, which required each state to set up a sex offender registry just like the one in Minnesota.

Inspired by the tragic fates of other children just like Jacob, several other pieces of legislation followed, including Megan’s Law in 1996 and the Adam Walsh Act in 2006. Megan’s law turned the sex offender registries created by the Wetterling Act, which were initially for the private use of law enforcement, into publicly accessible information. The Adam Walsh Act established a national sex offender registration system and required that sex offenders’ addresses, photographs, and other information be publicly disclosed, in addition to lowering the age limit for potential registrants to as young as 14. Failure to comply with all of the requirements set out in these legislative acts could result in a loss of funding for the state.

Patty Wetterling and the others like her had nothing but good intentions when they initially sought to create sex offender registries. Their efforts to seek justice and protection for children against violent sex predators cannot be overlooked or understated. Despite these good intentions, however, their efforts to protect children by creating a sex offender registry have backfired, as the registry has had the effect of ruining some children’s lives before they have even begun.

Today, juveniles charged with certain crimes are required to register as sex offenders in almost every state. A report from the Juvenile Law Center notes that “Over 2,000 individuals are on sex offender registries for offenses committed when they were children.” Included in the list of crimes which can land juveniles on the sex offender registry are “consensual sexual relationships, sexting, and public urination.” Requiring juveniles to be registered as sex offenders often has lifelong implications, in some ways imposing a “life sentence” on the youths. The obstacles to living a normal life which are placed in front of juvenile sex offenders include employment and registry restrictions, as well as a prohibition on living with other children (including their own siblings). As their registration follows them into adulthood, individuals that were registered as sex offenders due to an offense committed during their youth can even be prevented from residing with their own children.

In addition to this, being placed on a sex offender registry carries with it a stigma that can last a lifetime and a label that can never truly be erased from the internet. The enduring nature of the internet further reinforces the idea that placing youths on sex offender registries amounts to a “life sentence.” The stigma that accompanies being placed on a sex offender list at such a young age often results in serious mental health problems and safety concerns. Juveniles placed on sex offender registries are more likely to attempt suicide and less likely to develop a “healthy self-identity.” Being labeled as a sex offender as a child can also lead to homelessness and stunted educational development. Notably, juveniles that are already members of disadvantaged populations due to their race or sexual identity are hurt more by laws requiring that juveniles register as sex offenders. As noted by the American Bar Association, “youth of color and juveniles who identify as LGBTQ are overrepresented on sex offender lists.”

While the consequences that follow juvenile sex offender registration continue to grow, the efficacy of the registries in preventing sex crimes against children has remained unclear. Because of their youth, recidivism rates for juveniles are very low and they are best situated to “turn their lives around.” As mentioned above, however, the restrictions placed on their lives from such an early age significantly stifle their ability to do so.

The initial purpose of creating the sex offender registry was to aid law enforcement and other public entities so that they were able to protect the public. This purpose has been undermined by the harsh reality of sex offender registries and their impact on juveniles. It is clear that far too often, sex offender registries are seriously harming those whom they are intended to protect. This makes it difficult to justify the continued practice of placing juveniles on sex offender registries. Some of the suggested reforms to the current registry system for sex offenders to decrease the number of juveniles registered include limiting the offenses that require registration to only those that pose significant threats to public safety and completely removing juveniles from the lists. Due to their poor efficacy and the lasting damage inflicted into adulthood, justice requires removing juveniles from sex offender registries.

*Layni Sprouse, University of Minnesota Law School Class of 2024, JLI Vol. 40 Staff Member

Thomas Jefferson: Derailing the Native American Future

By jlieditors

by Edward R. Adams*

“When the government fears the people,” Thomas Jefferson allegedly wrote, “there is Liberty. When the people fear the government, there is Tyranny.” Actually, there is no evidence that he ever wrote anything resembling this famous aphorism.^[1] Equally disingenuous is the narrative that Jefferson was opposed to an overbearing government, as it was under his influence that the government unfavorably reconstrued the basic property rights and legal status of Native Americans, formulating a system that continues to oppress Indian peoples to this day.^[2]

This work develops three areas that illustrate Jefferson’s views and methods which conspired to estrange Indians from their property. The first part examines how Jefferson’s prejudice against Native Americans manifested itself in his expropriation of Indian remains. The second explains the actual methods through which Native lands were acquired. The third analyzes how Jefferson’s use of the Doctrine of Discovery and its corollary, the right of first refusal, reconstrued property laws to allow the government to subjugate Native American land.

Native American Ancestral Remains

It is a fundamental aspect of culture to be able to mourn one’s dead. While European settlers would bury their dead in separate graves in graveyards, American Indians employed communal burial mounds, vast structures that could host thousands of ancestral remains and artifacts.^[3] These mounds played an important part in Native American societies and acted as a central place in the community where individuals could meet with one another.^[4]

The dead, or at least the dead of European colonists, were just as venerated then as they are today. But, notably, no protections were afforded to Native burial mounds in Jefferson’s time, even by Jefferson himself.^[5] In some time around 1780, Jefferson made a discovery: there was an Indian burial mound a mere few miles away from his home in Virginia.^[6] He quickly rushed to the mound and, ignoring the many tribes that frequented the site, claimed it as his own. With hasty efficiency, he cut open the mound and proceeded to loot the graves.^[7]

For these actions, Jefferson is sometimes regarded, always incorrectly, as the founder of modern American archaeology.^[8] However, archaeology, much like any other science, implies observance of objective fact and adherence to scientific truth. Jefferson practiced neither of these things.^[9] He frequently kept the remains for himself to collect as grisly trophies, and the samples he did send to museums were all used to “scientifically validate” his own pre-ordained conclusions about the racial differences between Europeans and Native Americans,^[10] including “proof” of Jefferson’s own views relating to the genetic superiority of White settlers.^[11] Thomas Jefferson might have been the first to unearth a Native American burial mound, but historians rightly note he was “America’s first scientific grave robber,” not America’s first archaeologist.^[12]

Debt as a Tool to Take Native American Lands

Since the time of Jefferson (and, in large part, because of Jefferson), debt has been used systematically and ruthlessly by the government to acquire Native American lands. Native Americans were not as financially naïve as colonists thought, and more often than not had a sophisticated understanding of the economic games being played. While some believed Indians had a “primitive” economic system and had to adopt the foreign method of trading, if anything the reverse is true.^[13]

In trade, Native Americans frequently outmaneuvered enterprising colonists. Indians adroitly gave gifts to shift the delicate balance of power in their favor, often seeing and playing to the long-term interests in the region.^[14] Tribes also played traders against each other to get the best deal, taking advantage of the multiple European powers vying for control.^[15]

Notwithstanding this, the concept of land ownership was a uniquely foreign one to Native Americans. Indian tribes universally held the belief that there was no such thing as private ownership of land, and were bemused by colonial insistence to the contrary.^[16] In Native American societies, individuals had the exclusive right to use a particular piece of land but the ownership was still controlled by the tribe itself.^[17]

Jefferson favored the removal of Native Americans and the occupation of their land.^[18] He also appreciated that such a task would be tremendously difficult. Powerful Indian tribes and alliances controlled many of the areas Jefferson wanted and a newly founded country was going to be hard-pressed to assimilate them.^[19] Jefferson sought to play both sides of the conflict. On the one hand, he had to appease the zealous settlers who were eager to take Native American land. On the other, he wanted to “cultivate the love” of Native Americans even as he sought to rob them of their property.^[20]

Debt provided the perfect opportunity for Jefferson. He understood Native Americans had a fundamentally different conception of land ownership, and as an expansionist he understood how he could use this to his advantage. As early as 1802, Jefferson asserted in his private notes that the United States should “encourag[e] [the tribes and] their leading men to run in debt … [for] they will always cede land to rid themselves of debt.”^[21]

Notwithstanding Jefferson’s private agenda, the policy proved to have an extremely wide impact and set the tone for the relationship between the United States government and Native American tribes for decades to come. Crucially, Jefferson stated that the government would be the one “sell[ing] so low as merely to repay us costs and charges,” which “private traders cannot do for they must gain,” in essence setting up the role of the government to push tribes into debt.^[22] This quickly became standard colonial procedure, with Native American land being included in virtually every contract as collateral.^[23]

In a specific example of how insidious this practice of debt collection was, one tribe was fined for “disturbances” and asked to pay an impossible fee of 595 fathoms of wampum.^[24] If they failed to do so, however, the government would “kindly” allow them to pay with their land, effectively taking their property under the guise of generosity.^[25] Debt was frequently issued not because the creditors expected the borrower to be able to pay them back, but because they wanted the specific property that could be seized when they foreclosed.^[26]

The Doctrine of Discovery and the Right of First Refusal

Seeking the spoils of their conquest in the “New World,” many European nations employed the Doctrine of Discovery—an implied rule wherein the nation that discovered an area enjoyed the first lawful claim to it. The Doctrine’s adoption in the United States meant that when Jefferson sent Lewis and Clark to explore the Northwest, the government claimed a stake in the land they discovered.^[27] In effect, the Doctrine transferred property rights from Native Americans to the government. Essentially, the government maintained the right to be the sole buyer of Indian lands and Native Americans lost their legal status as the owners of their own property.^[28]

In addition to employing the Doctrine of Discovery, Jefferson enforced the less focused-on idea of the right of first refusal. Sometimes called preemption, the right of first refusal was a corollary of the Doctrine of Discovery, and provided that discovering nations had the sole right to buy land that had been “discovered” from those who had occupied it.^[29] Jefferson did not hesitate to employ this concept, and knowingly relied on it to further his agenda many times.^[30]

The far-reaching implications of the Doctrine of Discovery continue to impact Native Americans to this day. In 1903 the United States Supreme Court ruled that the Doctrine enabled the United States to walk back on the decisions it reached in treaty agreements with Indian tribes, effectively rendering them useless.^[31] In the 1955 case of Tee-Hit-Ton Indians v. United States, the Supreme Court, cited the Doctrine in declaring that the government was not obliged to pay reparations for the taking of Native American land.^[32]

Conclusion

In the excavation of burial mounds, Jefferson labeled himself the first “archaeologist” and subsequently popularized the looting of Indian remains. In the taking of Indian land, Jefferson once again proved himself the unique propagator by embracing the use of debt. Even the concept of the Doctrine of Discovery was legitimized by Jefferson. It may have been Supreme Court Justice John Marshall who finally codified the Doctrine into United States law, but Jefferson had been operating under the idea for years before then by believing in the right of the government to take Indian land.^[33] After the decision was made, it was Jefferson who authorized the expedition to explore the Pacific Northwest, a strategic choice that increased the legitimacy of the government’s claim to the land under the Doctrine of Discovery. In all these ways, Jefferson firmly cemented the disadvantaged position of the Native American people for the foreseeable future.

* Edward R. Adams, Stanford University (Class of 2025; Majors: Mathematics and Computational Science, Economics; Minor: Native American Studies). My Choctaw heritage inspired this Essay after I learned that the policies designed by Thomas Jefferson repeatedly forced my ancestors to give away their lands to the United States in order to satisfy the debts they owed to traders of European ancestry.

^[1] “When Government Fears the People … There Is Liberty (Spurious Quotation),” T. H. Jefferson Monticello, https://www.monticello.org/site/research-and-collections/when-government-fears-people-there-liberty-spurious-quotation (last visited Mar. 4, 2020).

^[2] The word “Indian” is something of a misnomer, created when Columbus mistakenly thought he had “discovered” the subcontinent that bears the name. Though the term has frequently been used pejoratively (and before the adoption of the phrase “Native American”), I will here use it without quotation marks to place the paper in the historical context that existed in the time of Jefferson. Presently, there exists no universally accepted term to refer to the Indigenous people of the United States.

^[3] Megan C. Kassabaum, Monumental Grandeur of the Mississippi Valley, Expedition Magazine, 2015, at 11-13.

^[4] Id. at 12.

^[5] Ronald Hatzenbuehler, Questioning Whether Jefferson Was the “Father” of American Archaeology, History and Anthropology, 2011, at 122.

^[6] Id.

^[7] Id. at 124.

^[8] Id. at 123.

^[9] Id.

^[10] John B. Winski, There Are Skeletons in the Closet: The Repatriation of Native American Human Remains and Burial Objects, 34 Ariz. L. Rev. 187, 191 (1992).

^[11] Roxanne Dunbar-Ortiz, An Indigenous People’s History of The United States 231 (2014).

^[12] David Hurst Thomas, Skull Wars: Kennewick Man, Archaeology, and the Battle for Native American Identity 35 (2001).

^[13] Robert J. Miller, Economic Development in Indian Country: Will Capitalism or Socialism Succeed?, 80 Or. L. Rev. 757, 765-766 (2001).

^[14] Tim Alan Garrison, Review Essay: Recent Works on the History of the U.S. Indian Policy, 36 Tulsa L.J. 415, 419 (2000).

^[15] K-Sue Park, Money, Mortgages and the Conquest of America, 41 Law and Soc. Inquiry 1006, 1021 (2016).

^[16] Id. at 1024.

^[17] Miller, supra note 11, at 768-769.

^[18] Robert J. Miller, Native America, Discovered and Conquered 86 (2006) (“The one thing Thomas Jefferson really wanted from Indian people was their land.”).

^[19] Gregory Ablavsky, The Savage Constitution, 63 Duke L. J. 999, 1004-005 (2014).

^[20] William Hogeland, Autumn of the Black Snake 156 (2017). Another reason for the secrecy of Jefferson’s agenda is that he personally stood to benefit from the sale of land. Jefferson had inherited extensive ownership in a land speculation company, an investment that would tremendously benefit him if it turned out correctly. Miller, supra note 16, at 61.

^[21] Id. at 87.

^[22] Id.

^[23] Park, supra note 13, at 1025.

^[24] Id.

^[25] Id. at 1028.

^[26] Id. at 1029.

^[27] Robert J. Miller, Americans Indians, The Doctrine of Discovery, and Manifest Destiny, 11 Wyo. L. Rev. 329, 337 (2011).

^[28] Blake A. Watson, The Doctrine of Discovery and the Elusive Definition of Indian Title, 15 Lewis & Clark L. Rev. 996, 1010 (2011).

^[29] Robert J. Miller, The Doctrine of Discovery in American Indian Law, 42 Idaho L. Rev, 1, 6 (2005).

^[30] Id. at 79-80.

^[31] Michael C. Blumm, Why Aboriginal Title is a Fee Simple Absolute, 15 Lewis & Clark L. Rev. 976, 992 (2011).

^[32] Id.

^[33] Janine Robben, Myths, History and Destiny, 69 Oregon State Bar Bulletin, 17, 19-20 (2009).

The Rise and Fall of Legalized Recreational Marijuana in South Dakota

By jlieditors

by Lottie James*

By the late evening of November 3, 2020, it had become abundantly clear that a majority of South Dakotans support the legalization of both medical and recreational marijuana use. Two separate initiatives related to the legalization of marijuana usage were on the same ballot, and both initiatives passed with a majority affirmative vote. The first initiative, South Dakota Initiated Measure 26, would legalize the use and cultivation of marijuana by individuals with debilitating medical conditions. Initiated Measure 26 received support from 69.92% of voters. The second initiative, South Dakota Constitutional Amendment A, would legalize the recreational use of marijuana for individuals twenty-one and older. Amendment A would also require the state legislature to pass laws that would create a medical marijuana program and provide for the sale of hemp. Amendment A received support from 54.18% of voters.

Public support for the legalization of marijuana in the United States at the time was approximately 68% according to a Gallup poll conducted during the months of September and October in 2020, so the results of the two marijuana-related initiatives may not seem all that noteworthy. Within the context of the United States broadly, South Dakota’s vote is not unusual as eleven other states had legalized recreational marijuana usage and thirty-three other states had legalized, or decriminalized, marijuana usage for medicinal purposes. However, South Dakota’s vote is important for three reasons: South Dakota has historically had unusually harsh drug laws, the vote legalized medicinal and recreational use at the same time, and the state Supreme Court eventually upheld a lower court’s nullification of the recreational use amendment.

Significance of Affirmative Votes: Severity of Previous Drug Laws and “Leapfrog” Legalization

The vote to legalize medical and recreational marijuana use is particularly significant for South Dakota because South Dakota currently has strict laws related to drug offenses, and no other state to date has legalized both medical and recreational use simultaneously. South Dakota’s current drug laws for non-medicinal marijuana use are austere, both in terms of applicability and punishment. In addition to laws addressing possession of controlled substances and intent to distribute, South Dakota is the only state that considers ingestion of a controlled substance, even in trace amounts, to be a felony offense. South Dakota’s law regarding ingestion went into effect in 2014, so there has been a significant turnaround in attitude regarding marijuana use in a relatively short amount of time. South Dakota’s ingestion law is notable not only for its severity but its application. In cases where ingestion is the highest charged crime, Native Americans are statistically more likely to be imprisoned than non-native people. For example, 10% of native men in prison had ingestion as their highest charged crime compared to 6% of non-native men in 2019. This pattern is consistent for women as well, with 23% of native women in prison for ingestion compared to just over 16% for non-native women in 2019.

In addition, the November 3rd election is notable because South Dakotans have “leapfrogged” a multi-year process towards full legalization. Other states have generally moved towards complete legalization in three steps: decriminalization, legalization for medicinal use, and full legalization, including recreational use and cultivation of marijuana plants. By placing both initiatives on one ballot, South Dakota has potentially skipped over the first two steps thereby going from felonious ingestion to complete legalization in one trip to the voting booth.

Court Rejection of Amendment A Despite Voter Approval

While Initiated Measure 26 was adopted into law, Amendment A became the subject of a challenge by Governor Kristi Noem’s administration. Two law enforcement officials challenged Amendment A stating that the amendment was unconstitutional because of a 2018 constitutional amendment that required all further amendments to touch on one subject. The requirement that all amendments embrace only one subject is rooted in two primary concerns: combating the practice of “combining unrelated provisions in one amendment to ensure passage of a provision that might otherwise fail had the provisions been submitted separately” and eliminating voter confusion about the contents of amendments. Circuit Judge Christina Klinger, who was appointed by Governor Noem in 2019, struck down the amendment on February 8, 2021, arguing that the amendment touched on multiple subjects including hemp cultivation, legalization of marijuana, and more. She also argued that the amendment constrained the executive and legislative branches of South Dakota’s government by granting too much power to the state’s Department of Revenue.

Proponents of Amendment A appealed the circuit court’s order declaring the amendment unconstitutional to the state’s Supreme Court. On November 24, 2021, the South Dakota Supreme Court released an option authored by Chief Justice Steven Jensen affirming the circuit court’s decision in a 4-1 decision. Interestingly, all four affirming justices, while in agreement that the amendment is not constitutional, appear to be split on rationale with Justices Janine Kern and Patricia DeVaney concurring and Justice Mark Salter concurring specially. Justice Scott Myren concurred in part and dissented in part. On behalf of the Court, Chief Justice Steven Jensen argued that Section 1 of Article XXIII of the South Dakota Constitution must be interpreted as requiring a separate vote when an amendment includes at least two unrelated subjects, “with different objects or purposes, that are not dependent upon or connected with each other.” The Court concluded that Amendment A embraces at least three distinct subjects: legalization of marijuana, a mandate that the state legislature adopt laws to ensure access to medicinal marijuana, and a mandate that the state legislature regulate the hemp market.

Since the Supreme Court’s decision was released just recently, proponents of Amendment A have begun gearing up to continue the fight for legalization. If the proponents of Amendment A do decide to split the amendment into three distinct initiatives, South Dakotans would then vote on all the separate issues as distinct ballot measures, with the exception of Amendment A’s medical marijuana provision which is unnecessary in the light of Initiated Measure 26’s passage. South Dakota’s legislature has also begun the process of legalizing recreational marijuana during the current legislative session. Unfortunately, South Dakota’s ingestion law is still valid and thus the inequality concerns about inequal application of the law continue.

*Lottie James, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

How a New Ohio Law and Other State Reforms Are Changing the Landscape of Mental Health and Criminal Justice

By jlieditors

By Bailey Martin*

In 2021, two men sentenced to death in 1999 and 2004, David Braden and Donald Ketterer, were removed from Ohio’s death row. These men were not removed due to successful constitutional appeals, nor were they removed due to proof of their factual innocence. Instead, the men were resentenced to life without parole under a new Ohio law that bars capital punishment for people with severe mental illnesses.

The law, which became effective in April 2021, is the first of its kind nationwide. Before this law, Ohio, like many states, allowed mental health to be considered as a mitigating factor when determining the appropriateness of a capital sentence. But the new law absolutely bans the death penalty for individuals who had a “serious mental illness at the time of the alleged commission of the aggravated murder.”

However, only four diagnoses qualify as a serious mental illness under the law: schizophrenia, schizoaffective disorder, bipolar disorder, and delusional disorder. While an individual does not necessarily need to be diagnosed with one of these conditions at the time of the offense, the mental health condition must have “significantly impaired the person’s capacity to exercise rational judgment” in relation to the aggravated murder. If an individual can prove they have a qualifying serious mental illness, their sentence is reduced to life without parole.

While this law is a significant step in protecting those with mental illnesses against capital punishment, it also presents numerous hurdles for defendants. First, a defendant’s mental health condition must fit within four narrow diagnoses, and these diagnoses do not include other numerous and common mental illnesses, including post-traumatic stress disorder, major depression, and anxiety. Second, a defendant must be able to prove that at the time of the murder, this mental condition “significantly impaired” them in their ability to conform their conduct to the law or to appreciate the nature, consequences, or wrongfulness of their conduct. Third, the law only allows for individuals to be resentenced to life without parole, despite the fact that for Ohioans sentenced to death before 1995, life without parole was not a sentencing option.

Finally, the law gives already-convicted Ohioans a limited, one-year window in which to file appeals; those already sentenced to death prior to the law’s enactment must file their appeal before April 2022. Defendants charged with new capital crimes will have a pre-trial mental health evaluation and a hearing to determine their eligibility for the death penalty. This means that individuals will have to litigate their mental health conditions, provide expert testimony, and find evidence to present to the court that dates back to the time of their offenses. In David Braden’s case, his sentence was reduced without opposition from Franklin County prosecutors, who said they had enough information to agree with defense counsel that he qualified under the statute. Donald Ketterer’s sentence was reduced in October 2021, and prosecutors have similarly stated that they will not appeal the decision.

While Ohio is the only active death-penalty state with such a law, it is not the first to consider legislation of its kind. Before repealing its death penalty in 2012, Connecticut had a similar law that made those with severe mental illnesses ineligible for a death sentence. Both Tennessee and Virginia have also considered similar legislation (Virginia has since abolished the death penalty).

While the Supreme Court has not discussed the issue of mental health and culpability, the Court did prohibit the use of the death penalty against individuals with intellectual disabilities in Atkins v. Virginia, 536 U.S. 304 (2002). The Court reasoned that those with intellectual disabilities have reduced culpability and should be ineligible for the death penalty. Similarly, the Court decided in Roper v. Simmons, 543 U.S. 551 (2005), that juveniles also have sufficiently reduced culpability to ban death sentences for minors. Thus, it follows that death sentences for individuals with severe mental illnesses should also be prohibited due to their own reduced criminal culpability.

Despite the Supreme Court’s silence on this issue, other courts across the country are now reconsidering mental health as it relates to individuals’ criminal culpability. In 1997, the first mental health court was established in Broward County, Florida, after efforts from both a public defender and a circuit court judge. The court aims to divert defendants into treatment programs, although only nonviolent misdemeanors are eligible for this process. Similar programs have emerged across the country; by 2010, more than 40 states had mental health courts in operation. While research is limited regarding the success of these courts, some studies have shown that individuals who participate in mental health court programs have greater engagement in treatment programs and have positive effects that last more than a year post-participation.

Minnesota’s own Hennepin County Criminal Mental Health Court has served as a national model since it opened in 2003. The program serves those with mental illnesses, brain injuries, or developmental delays that have significantly impacted their lives. Once referred to the program by an attorney or probation officer, the court links individuals with housing, employment, therapy, and other mental health services. The program, which can last six months or longer, can also serve those accused of violent offenses, although those accused of sexual crimes are not eligible. Successful completion of the program can result in dismissed or lowered charges to help individuals avoid jail time. Judge Kerry Meyer, who ran the mental health court in 2015, stated that approximately 60 percent of participants graduated from the court. Even some individuals who did not graduate, according to Meyer, had measurable successes as a result of their participation, including less hospitalizations, less incarceration, and less severe, subsequent crimes.

While more resources, funding, research, and efforts are needed to protect those with mental health conditions from criminal justice involvement, these laws and programming point to a changing landscape nationwide. These changes are needed, considering that individuals with serious mental illnesses are 50 percent more likely to receive a jail sentence after a misdemeanor arrest and more likely to serve longer prison sentences than those without mental illness. Furthermore, having mental health symptoms may make individuals more at risk for false confessions and prevent them from fully participating in their own defense. An outright prohibition from the Supreme Court would more substantially protect these individuals from death sentences, but more public health and criminal justice reforms are needed in order to protect all persons with mental health symptoms from these disparate impacts.

*Bailey Martin, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

A New Minneapolis: Opportunities in the Redistricting of Minneapolis Wards

By jlieditors

By Hannah Stephan*

Since the completion of the 2020 U.S. Census, states and cities around the country have begun the process of redistricting. On the tail of a heated municipal election season, redistricting in Minneapolis is especially noteworthy as residents are preparing for a re-do of the City Council election two years from now. Though City Council members are typically elected for four-year terms, the upcoming redistricting process means that the recently elected members will serve for only two years before another race to represent the newly-drawn districts in 2023. The final map, which is due on March 29, 2022, must be “as equal in population as practicable,” and in no event more than five percent different from the mean number of residents per ward. Minneapolis has thirteen wards. Currently, Ward 2 and Ward 3—which include Downtown Minneapolis, much of the University of Minnesota campus, and surrounding areas—are too large, while several South Minneapolis wards are too small.

The ward redistricting process, which follows the Census every ten years, is performed by the City of Minneapolis Redistricting Group, comprised of the Minneapolis Charter Commission and an advisory group appointed by the Commission. The advisory group is made up of eligible Minneapolis voters who have not held elected office, run for elected office, or worked for the City of Minneapolis or any political party in the two years prior to appointment. The Charter Commission appoints these individuals. In terms of process, the Redistricting Group has certain recommended principles and guidelines to follow; but only the requirements in Article II, § 2.2 and § 2.3 of the Minneapolis City Charter are mandatory. In Minnesota generally, redistricting is governed primarily by Minnesota Statutes § 204B.135, which outlines the timing for the process, and Minnesota Statutes § 205.84, which describes boundary and population guidelines.

The redistricting process as a whole provides an interesting look at how Minneapolis and other cities can use redistricting to focus on creating more equitable outcomes for the city as a whole. Though Minneapolis will likely not see many changes in the upcoming redistricting process, especially since one of the Redistricting Group’s mandates is to minimize changes, some of the few changes in Minneapolis could be significant. For example, one proposed map draws newly-elected Ward 4 Council Member LaTrisha Vetaw’s residence out of her ward and Ward 5 Council Jeremiah Ellison out of his. The map’s proposed changes to Wards 2 and 3 also have implications for the high-impact Downtown and University communities. Given these considerations, there are certain changes that Minneapolis could make to more meaningfully incorporate public feedback and prioritize equity in its redistricting process.

A map of current Minneapolis wards from the City of Minneapolis.

Defining Equity in the Redistricting Process

It is critical for redistricting groups to meaningfully consider equity to make sure that historically underrepresented communities do not continue to have their voices erased or diluted. Speaking about the statewide redistricting process, Common Cause Minnesota Executive Director Annastacia Belladonna-Carrera said, “[f]or far too long, Black, Indigenous and Minnesotans of color have had their political power diluted in the redistricting process . . . many do not benefit from equitable electoral power or a fair opportunity to elect candidates with shared interests who are going to take up those issues . . . unique to these communities . . ..”

At the state level, the organizations Common Cause Minnesota, OneMN.org, and Voices for Racial Justice have sued to ensure better representation for communities of color in Minnesota’s redistricting process. According to these organizations, “approximately 85 percent of Minnesota’s population growth between 2010 and 2019 can be attributed to communities of color,” so the state should pay special attention to the representation needs of these communities as it redraws maps. The same perspective should be applied at the city level as Minneapolis officials consider new wards.

Fair Census Counts are Critical to Equitable Redistricting

We are already too late if Minneapolis only starts thinking about equity during the redistricting process. Since the redistricting process is preceded by the U.S. Census, ensuring that Minneapolis has thoroughly and accurately counted its residents is critical to making sure that the districts ultimately appropriately reflect who actually lives in the city.

Though Minnesota made headlines when it unexpectedly kept its eighth House of Representatives seat, and was reported as having the highest Census response rate of any state, there have been historical problems with undercounting certain communities in Minnesota; specifically, “people of color, [I]ndigenous people, undocumented immigrants, and low-income persons.” The areas in Hennepin County with the lowest response rates correspond with areas that have a higher percentage of residents who are part of the above-mentioned groups. This undercounting leads to less of an opportunity for fair representation for these communities, which can impact everything from transportation funding to rent control.

The reasons for this undercounting cannot be attributed to one factor, but fewer in-person door-knocking campaigns due to the COVID-19 pandemic and the chilling effect on immigrant communities due to a proposed citizenship question were thought to be aggravating factors in the 2020 Census specifically. Going forward, Minnesota should not be short-sighted or complacent with our relatively high rates of Census completion. Census officials should prioritize counting underrepresented communities and work with community organizations like UnidosMN and the League of Women Voters to leverage existing programming meant to meaningfully reach these communities.

Minneapolis Should Implement Community-Led Redistricting Strategies

Communities of interest, which are groups of people seen as having similar views and concerns, are meant to be considered by officials when redistricting an area so that power among these groups is not diluted. To best serve its purported equity goals and to create Minneapolis wards that best serve the representation needs of Minneapolis residents, Minneapolis should seek to include more citizen voices in the redistricting process with a specific focus on defining communities of interest. This is an approach emphasized by local advocacy organizations in Minneapolis, and there are several out-of-state examples of strategies that could prove effective.

In California, two community organizations established a set of “equity indicators,” such as housing cost burden and English proficiency, which are meant to enhance conversations around defining and setting communities of interest. Using data to thoughtfully consider key equity indicators is a logical goal for decision makers because there is no firm definition of what qualifies as a community of interest. Similarly, in Michigan, the newly-formed Independent Citizens Redistricting Commission seeks to promote racial equity in redistricting at all levels of government using communities of interest as a main tool by defining and uplifting communities which have been historically left out of redistricting conversations.

City officials and Minneapolis residents have an opportunity to meaningfully incorporate our understanding of communities of interest to help form wards which prioritize electing representatives that better reflect Minneapolis communities. By prioritizing community voices and investing in strategies to provide adequate power to historically underrepresented areas, Minneapolis can fulfill its reputation for strong civic engagement in a more meaningful and equitable way. Interested residents can impact the process by speaking at a meeting, submitting a map, or submitting public comment.

*Hannah Stephan, University of Minnesota Law School Class of 2022, JLI Vol. 40 Lead Online Editor

We Finally (Kind of) Understand COVID – What Does That Mean at the Voting Booth?

By jlieditors

By Rob Grimsley*

When the Coronavirus first went viral, most Americans agreed that public spaces needed to be shut down in order to slow the spread and begin to understand what we were dealing with. However, as 2020 was an election year, there was soon speculation as to how to handle voting. Traditionally, voting had been an activity performed on election day, with mass amounts of people gathering in confined spaces for a prolonged period of time. Obviously, this generated legitimate concerns about the spread risk of voting locations and the difficulty of casting votes in general. A result of this concern was mass expansion of the ability to vote by mail, with at least 40 states allowing increased mail-in voting due to the coronavirus. In fact, every state that tracked mail-in voting saw an increase in the 2020 election. States also allowed increased access to early voting to prevent mass gathering on the day of the election. Overall, 69% of voters cast their vote non-traditionally in 2020. For comparison, only 40% of voters cast their vote non-traditionally in 2016.

At the time of the 2020 election, not a single person had been vaccinated against COVID-19. There were fears of its effects in both the short and long term. The first real studies on the virus were not published until only a few months before the election. Even after the publication of scientific studies, there was so much information about the coronavirus that it was difficult to decipher real from fake news. To top it all off, the united public opinion of Americans had wavered by the time the election arrived, with significant division on how seriously the virus should be taken.

Voting creates issues for every American when it comes to exposure to COVID-19, but the numbers say that inner city individuals and minorities have to wait the longest at the polls. 23% of black voters and 19% of urban voters had to wait at least 31 minutes to vote, whereas only 17% of white voters and 9% of rural voters had to wait that long. In some inner-city neighborhoods, the number of polling places are actually decreasing, forcing the ones that are left to handle even more people. For example, the nine most populated counties in Georgia averaged roughly 25% more people per polling place in 2020 than just 8 years earlier in 2012. Increased exposure such as this may be one reason why blacks and Hispanics are at an increased risk of hospitalization and death from the coronavirus.

Even with the efforts implemented throughout the majority of America, the number of confirmed coronavirus cases still spiked significantly about two weeks after the election. That wasn’t the only issue that stemmed from the election either. There were the extensive claims of voter fraud. Most of these claims allegedly came from the use of mail-in ballots, however nearly every claim was unsubstantiated. Regardless, thousands of people bought into these claims and they were a major reason for the insurrection on January 6, 2021. These two issues are problematic as they serve as a basis for reasons to return voting to normal going forward.

Flashing forward it is now well over a year since the 2020 election and we know so much more about COVID-19. The current Omicron variant is more contagious, yet early studies show it to be not nearly as dangerous as the past two variants. Also, at the time of the election in 2020, the quarantine period was 14 days if you were even simply exposed to the virus.

Now however, the CDC states you do not even need to quarantine if you are fully vaccinated and have recently tested positive. If unvaccinated, you only need to quarantine for five days after exposure, after which you may leave your home. Finally, even if you tested positive, the most you must isolate for is five days, as long as your symptoms have been gone for 24 hours.

Public opinion of the virus has fluctuated over time. In late 2020, 64% of Americans felt that gathering at Thanksgiving was a large or moderate risk due to the virus. Compare that to late 2021, when only one-third of Americans reported the same fears. Overall, the fear of COVID itself has dropped significantly since before the 2020 election. In Mid-November of 2020 about 56% of Americans were concerned about a potential Coronavirus outbreak. In contrast, only about 41% of Americans feel the same way currently.

So what does this all mean in terms of the 2022 election? As mentioned previously, nearly every state expanded their residents’ mail-in voting capabilities, which resulted in record turnout even during the pandemic. Life has somewhat returned to normal however, and that may mean a return to normalcy at the voting booths as well. At least 19 states have already passed bills limiting voting in some form. These bills include making early/mail-in voting less accessible, imposing stricter voter ID requirements, and making faulty voter purges more likely. Some states are taking it one step further and may impose criminal penalties on election officials for various reasons, mostly related to election officials improperly assisting others in the course of the election.

But what about the “new normal”? Even though states expanded voting access due to the coronavirus, that doesn’t mean access must be restricted now that we have a better idea of what we are dealing with. Roughly 25 states enacted bills in this past legislative session to expand voting access to continue what was started in 2020. Some of these policies include: making mail-in voting easier and more accessible; allowing more time for election officials to count votes; lengthen the time voters have to early-vote; and increased language access to those who may not speak English. A further eight states have even fully codified policies that were only temporarily in place from the coronavirus outbreak.

What does this all mean for the upcoming election? In short, not much yet. There is still a lot of time until the election and much could change in the 2022 legislative sessions. What we do know is there will be a lot of variance between states and their election laws. Your access to the polls may very well depend on the state and city that you live in. It is no secret that those in the inner cities, where the majority of minorities in America live, have more restricted access to polling places. For these people, staying alert to the changing election laws may be crucial to be able to have their voices heard and avoid waiting 90+ minutes to do so.

* Rob Grimsley, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

Choice or Coercion? How the Push to Avoid Formal Foster Care Has Contributed to the Creation of a Dangerous Hidden Foster Care System

By jlieditors

By Sydnie Peterson*

Family units will often come into contact with child protective agencies when they are at their most vulnerable and in crisis. This was the case for Brian Hogan, whose first experience with local child protective agencies occurred after his wife experienced a heart attack and was sent to a hospital approximately two hours away from his home in Murphy, North Carolina. After receiving the tragic news that his wife would likely not make it through the night, Hogan decided to leave his daughter in the care of his neighbors so he could spend what he thought would be his wife’s last moments by her side. While Hogan’s daughter admittedly enjoyed her time with the neighbors, school officials reported that she smelled of cat urine and lacked appropriate clothing. In response, local child protective agencies stepped in to investigate Hogan’s household. The local agency implemented a safety plan where Hogan’s daughter would be put in the temporary custody of Hogan’s father, Warren.

Unfortunately, Hogan’s hard times would continue after his wife’s heart attack. Although she recovered, Hogan lost his apartment soon afterward due to financial hardships, forcing him to move in with his mother-in-law. Ultimately, local child protective agencies asked Hogan to relinquish custody to his father indefinitely. Hogan could not read, had no resources to explain his legal options, and was intimidated by the threat of his daughter being handed over to the state through the foster care system. Feeling he had no other choice, he consented to surrendering custody to his father with no promise of visitation or a reunification plan.

What occurred to Brian Hogan is not routine. Safety plans are commonly introduced when a child protective agency learns of neglect and these plans often include placements with family members. Nonetheless, after the safety plan is implemented and the family unit reaches a stable point, it is standard procedure for state family court to then determine what further action is in the best interests of the child. Once state family court gets involved, a myriad of integral rights come into effect, including procedural and substantive due process rights. Further, when children are placed into foster care, state agencies are obligated to instill more safeguards. First, state agencies must put reunification plans in place to bring the family unit back together once certain objectives have been completed. Second, state agencies have an obligation to ensure all foster care households are safe and to provide payments to caretakers. Lastly, state agencies have obligations to guarantee the child is receiving adequate healthcare and other rehabilitative services. When children are placed with families outside of the foster care system, like Hogan’s daughter, the state has no obligation to attempt reunification of the family unit, ensure safety, provide payment, or guarantee the variety of services offered to foster families. This often leaves families estranged for long periods of time. Also, it can leave children in hazardous homes and frustrate family members who have accepted the responsibility of caring for the child when they lack sufficient resources to effectively do so.

While it may appear obvious why the hidden foster care system is problematic, this is not always clear to families. Not partaking in the formal foster care system can be enticing. First, the formal foster care system commonly places children with strangers. Children may find placement with a stranger frightening and communicate this feeling to their parents. Also, parents may believe that once their child is placed into a home with a stranger, they will lose all access to them. Further, the formal foster care system is entrenched in the legal system, which appears unapproachable and costly to many, especially individuals who are impoverished or otherwise vulnerable. For these reasons, families have good reason to believe avoiding the formal foster care system is in their best interests, especially when facing pressure from a child protective agency.

Overall, this informal foster care system is hidden because state agencies are not required to file a petition alleging abuse or neglect when placing a child with a family member. Therefore, it is uncertain how many families have been uprooted by the hidden foster care system. Josh Gupta-Kagan posits in his Stanford Law Review article that tens to hundreds of thousands of families may have been impacted by the hidden foster care system on a temporary or permanent basis. This ultimately presents a problem of great magnitude that requires solutions.

Gupta-Kagan provides solutions to mitigate the harms of the hidden foster care system in his article. First, he argues that all parents subject to a safety plan should be appointed an attorney which will help bolster families’ understanding of the safety plan and allow them to negotiate with better leverage. This could ultimately result in better safety plans for children and families, with safer placements and clearer reunification plans. Second, Gupta-Kagan recommends that a maximum length requirement be placed on safety plans. Therefore, a reunification would also be the goal, and if reunification was impossible given the circumstances, the court would intervene. Gupta-Kagan advocates for a thirty-day safety plan maximum, as he believes any longer is unreasonable without court intervention. Third, he argues that parents should always be able to ask the court to review safety plans without consequence. These spontaneous reviews would create a check on state agencies’ powers while still allowing the informal safety plan practice when it is beneficial.

Ultimately, Brian Hogan regained custody of his daughter and was awarded $4.6 million dollars after winning a civil suit against the Cherokee County Department of Social Services. However, the Hogan family is but one of many that have been impacted negatively by the hidden foster care system. More broad reforms, like those presented by Gupta-Kagan, must be implemented to ensure that parents have a strong understanding of the implications of foregoing the traditional foster care system and that they do not feel coerced by the feigned perks of the hidden foster care system.

* Sydnie Peterson, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

Biden’s Private Prison Ban Must Include ICE Detention

By jlieditors

By Katie McCoy*

Our incarceration-focused immigration system needlessly locks up hundreds of thousands of noncitizens each year. The number of people incarcerated in Immigration and Customs Enforcement (ICE) custody was 15,000 when President Biden first took office, and it now hovers near 29,000. Sixty-nine percent of those detained have no criminal history. Many ICE detention facilities are located in rural and remote areas, making it much more difficult for noncitizens to secure representation and to win relief against deportation.

Despite President Biden’s promise to end federally-contracted, for-profit private prisons, this executive order failed to include ICE detention centers. The criminalization of migration and mass incarceration of noncitizens must end, and one crucial first step in doing so would be to extend the ban on privately contracted prisons to include ICE detention centers.

ICE Detention Relies Heavily on Private, For-Profit Corporations and Is Wrought with Abuse

Because President Biden’s executive order bans only the Department of Justice (DOJ) from continuing contacts with privately operated criminal detention facilities, no such limitation was extended to ICE detention facilities, which operate under the Department of Homeland Security. Excluding ICE detention from the executive order fails to address the root problem. Where 10% of the U.S. prison and jail system relies on private prisons, 79% of people detained in ICE custody were held in private prisons in September 2021. And by creating this loophole for private contractors, former DOJ facilities are merely being repurposed into privately-contracted ICE detention centers when their DOJ contracts are phased out.

Privately contracted ICE detention centers lack necessary oversight to prevent abuses and human rights violations. Although any carceral setting is prone to abuse, abhorrent conditions and inadequate access to medical services have been well-documented in for-profit immigration detention. One of the most notorious examples of medical abuse occurred at the Irwin County Detention Center in Ocilla, Georgia, where many women underwent unnecessary and invasive gynecological surgeries without their informed consent. ICE knew about the abusive medical practices at Irwin, a county-owned prison operated by for-profit private company LaSalle Corporations, as early as 2018, but it wasn’t until May 20, 2021, nearly one year after these reports gained international attention, that Secretary Alejandro Mayorkas directed ICE to discontinue use of Irwin and another facility with well-documented abuse of migrants.

On top of the grave violations of basic human rights that occur in immigration detention, private detention poses a huge financial drain. County governments paid to hold noncitizens in county jails typically receive more than $100 per day, per detainee. Biden’s budget for fiscal year 2022 ensures funding for 32,500 beds, incentivizing ICE to keep at least that many individuals detained at any given time. Yet the U.S. Government Accountability Office recently reported that ICE failed to take a “strategic approach to these decisions and has spent millions of dollars a month on unused detention space.”

For-profit detention corporations continue to profit off noncitizens’ incarceration with little government oversight. Even as conditions in detention deteriorate, the federal government has remained reluctant to ban for-profit corporations from operating ICE detention centers.

Despite State Attempts to Limit Immigration Detention, Federal Action Is Needed

In the absence of federal action, at least five states—California, Illinois, Washington, Maryland, and New Jersey—have taken abolition into their own hands, banning or limiting state officials from contracting with ICE. This legislation has been met with resistance. Geo Group, one of the leading for-profit prison companies, and the DOJ challenged the legality of California Assembly Bill 32, which phased out all private detention contracts in the state. In a split decision, the Ninth Circuit held that the California law conflicts with broad “federal power and discretion given to the Secretary [of Homeland Security] in an area that remains in the exclusive realm of the federal government . . . .” In contrast, a federal judge dismissed a lawsuit brought by two counties challenging the Illinois Way Forward Act, which bans all immigration detention within the state. Here, the judge found the State validly exercised sovereign immunity to ban political subdivisions, or counties, from contracting with ICE to detain noncitizens. These challenges prove that while states may lead the movement to end for-profit detention, federalism concerns may require action from the federal government.

Even when states have successfully passed legislation phasing out ICE detention, ICE has retaliated against noncitizens by transferring them from closing facilities near loved ones to remote detention centers, particularly those in the rural south. After New Jersey passed legislation barring county officials and private detention companies from signing new ICE contracts, ICE began transferring individuals in New Jersey facilities to other states in the middle of the night, separating them from all support systems and access to legal services.

For example, Patrick Julney, born in Haiti, came to the United States as a young child. He made a life for himself in New Jersey, but in 2019, ICE arrested, detained, and placed him in deportation proceedings. Mr. Julney spent nearly two years detained in Bergen County, New Jersey, and made public allegations about abusive conditions in Bergen County Jail. Shortly before Bergen was scheduled to close, ICE transferred Mr. Julney to Louisiana, far away from his partner and legal counsel.

The American Civil Liberties Union (ACLU) and National Immigration Project of the National Lawyers Guild (NIPNLG) sued ICE to prevent transfers from the Essex County Correctional Facility, demanding ICE conduct individual evaluations for release and, only if transfer was necessary, require ICE to keep noncitizens within a reasonable proximity to their legal service providers. Rather than preventing the transfers, however, the judge blamed activists’ success in shutting down these facilities as “not well thought out,” resulting in unwanted–but not unlawful–consequences for incarcerated noncitizens. No protection against transfers was granted, and people were transferred to ICE detention facilities across the country.

Similarly, in Illinois, more than 30 people were transferred to immigration detention in Indiana, Oklahoma, and Texas. At least one of these detention centers had confirmed COVID-19 cases, demonstrating the heightened risk transfers pose during the pandemic on top of the mental and emotional harms and due process concerns.

Conclusion

These transfers and challenges to state legislation demonstrate the need for President Biden to fulfill his campaign promise and end for-profit ICE incarceration nationally. This measure would have widespread support, as a recent poll by the ACLU and YouGov found that 68% of voters want the government to cease all contracts with for-profit private detention corporations. Additionally, ICE must utilize the Guidelines for the Enforcement of Civil Immigration Law, issued by Secretary of Homeland Security Alejandro Mayorkas, to make an individualized assessment whether a noncitizen’s incarceration is necessary. ICE should make reasonable efforts to keep people close to their families, communities, and to preserve access to legal services.

*Katie McCoy, University of Minnesota Law School Class of 2022, JLI Vol. 40 Managing Editor

Posts by jlieditors

Volume 43, Issue 2 (2025)

The Prison Phone Industry Exemplifies How Eliminating Private Prisons is Insufficient to Protect Inmates from Being Exploited for Profit

A Discriminatory Definition of “Mother:” The Injustice of the British Birth Registry System

Constitutional Arguments for the Legal Recognition of Bigamous Marriages

Mental Health & Criminal Justice: An Interview with Kelly Mitchell and Professor JaneAnne Murray

General Counsel Abruzzo’s Memoranda Indicate a Bold, Pro-Worker Agenda at Biden’s NLRB

The Shadow of Buck v. Bell: How Ignoring the United States’ History of Forced Sterilization Has Fostered an Environment Ambivalent to Widespread Abuse

The Supreme Court Vacated the CDC Eviction Moratorium – Now What?

Preventing Bias with the Model Rules of Professional Conduct: An Interview with Professor Jon J. Lee

Where is the U.S. Military?: An Update on the Department of Defense’s Efforts to Prevent Sexual Assault and to Protect Victims

It’s Time to End the Use of Race & Gender Statistics in Damage Award Calculations

Statement on COVID-19: Addressing Inequity Within Our Law School

Above the Law: How Kim Potter’s Sentencing Serves as Another Example of Police Receiving Disproportionately Low Sentences

Immigration Under the Biden Administration: An Interview with Attorney Erin Schutte Wadzinski

Black Name Discrimination: An Issue You Know With a History You Have Yet to Hear

Are New York’s Bail and Discovery Reforms in Renewed Danger?

No Humans Involved: The Dehumanization of Missing and Murdered Indigenous Women and Girls

Who Is the Foreseeable User?: Manufacturers’ Duty to Warn Multilingual Users

The Sex Offender Registry is a Life Sentence for Juveniles

Thomas Jefferson: Derailing the Native American Future

The Rise and Fall of Legalized Recreational Marijuana in South Dakota

How a New Ohio Law and Other State Reforms Are Changing the Landscape of Mental Health and Criminal Justice

A New Minneapolis: Opportunities in the Redistricting of Minneapolis Wards

We Finally (Kind of) Understand COVID – What Does That Mean at the Voting Booth?

Choice or Coercion? How the Push to Avoid Formal Foster Care Has Contributed to the Creation of a Dangerous Hidden Foster Care System

Biden’s Private Prison Ban Must Include ICE Detention