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Michigan Journal of Race & Law
Number of Followers: 1  Free journalISSN (Print) 1095-2721 Published by U of Michigan  [3 journals]
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- Keeping Counsel: Challenging Immigration Detention Transfers as a
Violation of the Right to Retained Counsel- Authors: Natasha Phillips
Abstract: In 2019 U.S. Immigration and Customs Enforcement (“ICE”) incarcerated nearly 500,000 individuals. More than half of the individuals detained by ICE were transferred between detention facilities, and roughly thirty percent of those transferred were moved between federal circuit court jurisdictions. Detention transfers are isolating, bewildering, and scary for the detained noncitizen and their family. They can devastate the noncitizen’s legal defense by destroying an existing attorney-client relationship or the noncitizen’s ability to obtain representation. Transfers also obstruct the noncitizen’s ability to gather evidence and may prejudicially change governing case law. This Note describes the legal framework for transfers and their legal and non-legal impacts. It contends that transfers violate noncitizens’ constitutional and statutory rights to retained counsel by obstructing the attorney-client relationship. Further, it argues that federal courts have jurisdiction to review right to counsel challenges to transfers under the Immigration and Nationality Act. Written with practitioners in mind, this Note canvasses the practical and legal difficulties of making such a challenge.
PubDate: Fri, 10 Feb 2023 08:46:04 PST
- Authors: Natasha Phillips
- Abusing Discretion: The Battle for Childhood in Schools
- Authors: Hannah Dodson
Abstract: For too many children the schoolhouse doors become a point of entry into the criminal justice system. Children of color are the most likely to suffer from this phenomenon. The presence of policing in schools is a key contributor to this “school-to-prison pipeline.” This Note argues that broad, discretionary mandates for school resource officers (SROs) promote biased law enforcement that impacts Black girls in different and specific ways. I contend that SRO mandates can be effectively limited by strategically bolstering community organizing efforts with impact litigation.
PubDate: Fri, 10 Feb 2023 08:46:04 PST
- Authors: Hannah Dodson
- Africana Legal Studies: A New Theoretical Approach to Law & Protocol
- Authors: Angi Porter
Abstract: “African people have produced the same general types of institutions for understanding and ordering their worlds as every other group of human beings. Though this should be obvious, the fact that we must go to great lengths to recognize and then demonstrate it speaks to the potent and invisible effect of the enslavement and colonization of African people over the last 500 years.” – Greg Carr
PubDate: Fri, 10 Feb 2023 08:46:03 PST
- Authors: Angi Porter
- Carceral Intent
- Authors: Danielle C. Jefferis
Abstract: For decades, scholars across disciplines have examined the stark injustice of American carceralism. Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate. These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement.This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and sweeping harms of America’s system of confinement. This Article begins by tracing the origins of American carceralism, focusing on the modern prison’s relationship to white supremacy and the post-Emancipation period in U.S. history. The Article then turns to the constitutional doctrine of incarceration, synthesizing and categorizing the law of carceral intent. Then, drawing upon critical race scholarship that examines anti-discrimination doctrine and the concept of “white innocence,” the Article compares the law’s reliance on carceral intent with the law’s reliance on discriminatory intent in equal protection jurisprudence. Critical race theorists have long critiqued the intent-focused antidiscrimination doctrine as incapable of remedying structural racism and inequities. The same can be said of the doctrine of incarceration. The law’s preoccupation with an alleged wrongdoer’s “bad intent” in challenges to the scope and conditions of incarceration makes it ill-suited to remedying the U.S. prison system’s profoundly unjust and harmful features. A curative approach, this Article asserts, is one in which the law focuses on carceral effect rather than carceral intent, as others have argued in the context of equal protection. While such an approach will not remedy the full scope of harms of U.S. incarceration, it would be a start.
PubDate: Fri, 10 Feb 2023 08:46:03 PST
- Authors: Danielle C. Jefferis
- 9/11 Impacts on Muslims in Prison
- Authors: SpearIt
Abstract: It is no understatement to say that September 11, 2001, is the most important date in the history of American Islam. From this day forth, Muslims would become a target for social wrath and become vilified like at no other time in American history. In one fell swoop, Muslims became the most feared and hated religious group in the country. While analysis of the impacts on Muslims tends to focus on Muslims outside of prison, it is critical to recognize that Muslims in prison were no exception to the post- 9/11 hostilities directed at Muslims. They experienced similarly heightened levels of Islamophobia and discrimination. The main goal of this essay is to consider the War on Terror in the prison context in the years following the events of 9/11. The work aims to assess how fear and anger seeped into prisons and became the means of repressing Muslims and casting them as a unique threat to national and institutional security. Although time has proved these attitudes unjustified and alarmist, they have taken a toll on those in prison and made life more difficult for individuals already existing in some of the harshest conditions in the country.
PubDate: Wed, 15 Jun 2022 12:21:37 PDT
- Authors: SpearIt
- The World of Private Terrorism Litigation
- Authors: Maryam Jamshidi
Abstract: Since 9/11, private litigants have been important players in the “fight” against terrorism. Using several federal tort statutes, these plaintiffs have sued foreign states as well as other parties, like non-governmental charities, financial institutions, and social media companies, for terrorism-related activities. While these private suits are meant to address injuries suffered by plaintiffs or their loved ones, they often reinforce and reflect the U.S. government’s terrorism-related policies, including the racial and religious discrimination endemic to them. Indeed, much like the U.S. government’s criminal prosecutions for terrorism-related activities, private terrorism suits disproportionately implicate Muslim and/or Arab individuals and entities while reinforcing the belief that those groups are predisposed to engage in or support terrorism.This short Article provides a brief overview of the world of private terrorism litigation. It begins by describing the various federal tort statutes on terrorism—including their fraught relationship with foundational tort law norms. It explains the connection between those laws and the U.S. government’s terrorism prosecutions, as well as its other terrorism-related priorities. It ends by demonstrating how private terrorism suits reinforce discrimination and prejudice against Arabs and Muslims that are reflected in criminal terrorism prosecutions. In focusing on private terrorism litigation, this Article highlights how private parties are furthering the government’s counterterrorism work, as well as how private terrorism suits reinforce the state’s endemic discrimination against Arabs and Muslims in the counterterrorism realm.
PubDate: Wed, 15 Jun 2022 12:21:36 PDT
- Authors: Maryam Jamshidi
- A Religious Double Standard: Post-9/11 Challenges to Muslims’
Religious Land Usage- Authors: Asma T. Uddin
Abstract: Muslims in the United States face real limits on their religious freedom. Numerous influential individuals and organizations even posit that Islam is not a religion and that, therefore, Muslims do not have rights to religious freedom. The claim is that Islam is a political ideology that is intent on taking over the country and subverting Americans’ constitutional rights. This narrative has gained momentum since the attacks of September 11, 2001 and continues to be amplified and disseminated by a well-funded cadre of anti-Muslim agitators. One area where its effects can be seen clearly is in religious land use, where a concerted effort to deprive Muslims of basic rights frustrates the aims and principles of the Religious Land Use and Institutionalized Persons Act (RLUIPA).
PubDate: Wed, 15 Jun 2022 12:21:36 PDT
- Authors: Asma T. Uddin
- The Ban and its Enduring Bandwidth
- Authors: Khaled Ali Beydoun
Abstract: This Essay is a contribution the Michigan Journal of Race & Law’s special issue marking the 20th anniversary of September 11, 2001 and the ensuing War on Terror. It reflects on Executive Order 13769, widely known as the “Muslim Ban,” years after it was signed into law, as an extra-legal catalyst of state-sponsored and private Islamophobia that unfolded outside of the United States.
PubDate: Wed, 15 Jun 2022 12:21:35 PDT
- Authors: Khaled Ali Beydoun
- American Informant
- Authors: Ramzi Kassem
Abstract: Part of my childhood was spent in Baghdad, Iraq, during the rule of Saddam Hussein. At that time, the regime offered free and universal education and healthcare. Literacy rates in the country surpassed much of the Arabic-speaking world and, indeed, the Global South. As the celebrated Egyptian intellectual, Taha Hussein, famously put it: “Cairo writes; Beirut prints; and Baghdad reads.” Booksellers were everywhere in Baghdad. Its people read voraciously and passionately debated literature, poetry, and a range of other subjects.But what struck me, even as a child, was the absence of sustained talk about politics in bookshops, markets, and other public spaces. I knew that adults could not stay away from the topic of politics in more intimate, private settings, where a deeper level of trust usually reigned. Once you entered the public sphere, however, discretion about politics—and especially local politics—clearly became the better part of valor. Iraqi society had been so thoroughly infiltrated by elements of Hussein’s intelligence services that ordinary people knew to tread with extreme caution. After all, the person standing within earshot at a bustling Baghdad market, overhearing your conversation—or maybe even your direct interlocutor— could be an informant. And the stakes were high: incarceration, torture, or death. That was an early introduction to the valency of informants—their capacity to interact with the society that surrounds them and their distorting effect on it. The lesson has colored my subsequent work on surveillance, including this reflection on the contemporary role of informants in the United States.
PubDate: Wed, 15 Jun 2022 12:21:34 PDT
- Authors: Ramzi Kassem
- State Sponsored Radicalization
- Authors: Sahar F. Aziz
Abstract: Where was the FBI in the months leading up to the violent siege on the U.S. Capitol in 2021' Among the many questions surrounding that historic day, this one reveals the extent to which double standards in law enforcement threaten our nation’s security. For weeks, Donald Trump’s far right-wing supporters had been publicly calling for and planning a protest in Washington, D.C. on January 6, the day Congress was to certify the 2021 presidential election results. Had they been following credible threats to domestic security, officials would have attempted to stop the Proud Boys and QAnon from breaching the Capitol perimeter. Yet when the day came, the mob of pro-Trump extremists seemed to catch law enforcement by surprise. They seized the Capitol, ransacked congress members’ offices, and openly posted photos of their destruction and their weapons online.In the preceding two decades, the U.S. government has poured money into a behemoth national security apparatus. The FBI’s annual budget ballooned from $3 billion in 1999 to nearly $10 billion today. Much of this 300% increase went to countering terrorism with a mandate to surveil, investigate, and prosecute “homegrown terrorists.” In no uncertain terms, the directive was for the FBI to target Muslim communities.
PubDate: Wed, 15 Jun 2022 12:21:33 PDT
- Authors: Sahar F. Aziz
- Material Support Prosecutions and their Inherent Selectivity
- Authors: Wadie E. Said
Abstract: The government’s maintenance of a list of designated foreign terrorist groups and criminalization of any meaningful interaction or transactions – whether peaceful or violent - with such groups are no longer novel concepts. Inherent in both listing these groups and prosecuting individuals for assisting them, even in trivial ways, is the government’s essentially unreviewable discretion to classify groups and proceed with any subsequent prosecutions. A summary review of the past quarter-century reveals the government’s predilection for pushing the boundaries of what it deems “material support” to terrorist groups, all the while making greater and greater use of a criminal statutory scheme for foreign policy purposes. This Article explores the dynamics of the designation process and material support prosecutions, highlighting the selectivity inherent at every turn, which tells who and from what major monotheistic faith the terrorist threat emanates.
PubDate: Wed, 15 Jun 2022 12:21:33 PDT
- Authors: Wadie E. Said
- Origin Stories: Critical Race Theory Encounters the War on Terror
- Authors: Natsu Taylor Saito
Abstract: Stories matter. They matter to those intent on maintaining structures of power and privilege, and to those being crushed by those structures. In the United States, the space to tell, and to hear, our stories has been expanding. This means that the histories and lived realities of those who have been excluded, particularly people of color, are seeping into mainstream discourse, into the books our children read, the movies and television shows they watch, and the many websites comprising social media. Critical race theory has played a role in this expansion. It insists that we recognize the legitimacy of the stories of those deemed “Other” because they have been erased or distorted beyond recognition in the dominant narrative. 3 Critical race theory has helped ensure that the legacies of genocide and broken treaties, of the cruelties imposed upon enslaved persons, of the forced inclusion and exclusion of those regarded simply as disposable labor, have worked their way into the realm of what can be talked about. Critical race scholars have exposed immigration injustices and called out xenophobia and Islamophobia. All this discomfits those who benefit, or believe they benefit, from the status quo.
PubDate: Wed, 15 Jun 2022 12:21:32 PDT
- Authors: Natsu Taylor Saito
- Law in the Shadows of Confederate Monuments
- Authors: Deborah R. Gerhardt
Abstract: Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily in their shadows. In recent years, eight Southern state legislatures enacted monument preservation legislation designed to thwart local removal efforts. These laws have prompted bitter conflicts, sometimes leading angry citizens to topple massive stone or bronze monuments themselves. The challenges present fertile ground for innovative lawyering. Creative applications of state property, nuisance and contract laws have led to removals notwithstanding the prohibitions of state preservation laws.When state law blocks removal or contextualization, communities may look to federal law as a source for taking antiracist action. First Amendment doctrine governing expressive speech has not provided a fruitful solution. Despite the expressive nature of Confederate monuments, efforts to weaponize the First Amendment by both sides of the monument debate have failed, largely due to the government speech doctrine. Given the age and quality of most monuments, copyright law is also not likely to provide an effective federal claim.The Federal Civil Rights Act offers an untapped but promising foundation for resolving these controversies. Title VI and Title VII could be used to challenge monuments that contribute to a hostile work or educational environment. Federal civil rights claims would supersede state legislation enacted to prevent removal of racially hostile symbols. Even when state law does not present removal barriers, communities who seek to take meaningful anti-racist action could ground their initiatives in the Civil Rights Act’s core value of equality. For all who are confronting this issue, this Article seeks to provide a legal and strategic framework for acknowledging history while reclaiming the symbolic heart of our public spaces and a means to assure that the symbols we elevate affirm shared contemporary values.
PubDate: Wed, 15 Jun 2022 12:21:31 PDT
- Authors: Deborah R. Gerhardt
- The Enemy is the Knife: Native Americans, Medical Genocide, and the
Prohibition of Nonconsensual Sterilizations- Authors: Sophia Shepherd
Abstract: This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It discusses the shocking revelation by several Tribal Nations that doctors at the IHS hospitals had sterilized at least 25 percent of Native American women of childbearing age around the country. Most of the women were sterilized without their knowledge or without giving valid consent. It explains the obstacles that Connie Redbird Uri and other Native activists faced when confronting the sterilizations, including the widespread acceptance of eugenic sterilizations, federal legislation that gave doctors economic incentives to perform the procedures, and paternalistic views about the reproductive choices of women, and especially women of color. Finally, this Article describes the long-lasting impacts of the federally-sponsored sterilization of Native women. The sterilizations devastated many women, reduced tribal populations, and terminated the bloodlines of some Tribal Nations.
PubDate: Wed, 15 Jun 2022 12:21:31 PDT
- Authors: Sophia Shepherd
- A Fare Share: A Proposed Solution to Address the Racial Disparity in
Access to Public Transportation Funding in America- Authors: Michael Swistara
Abstract: Black American households are up to six times less likely to own a car than white families and are four times more likely to rely on public transportation to meet their daily needs. Despite this, communities of color have seen consistent disinvestment in their transit infrastructure. Four hundred years of continued housing segregation combined with post-recession austerity policies and ongoing pro-automobile bias has exacerbated this disparity. This Note proposes a straightforward legislative tool to begin to combat this inequity. The proposed legislation would require that urbanized areas spend their public transit dollars according to the population density of the communities a given project would serve, create reporting requirements related to the racial and economic impact of transit projects, and establish a private right of action. In proposing this legislation, this Note evaluates the state of civil rights litigation as it pertains to transportation racism and draws lessons from other areas such as environmental law in order to put forth a simple solution that would have tangible effects across the country in both the short and long term.
PubDate: Mon, 07 Feb 2022 11:26:25 PST
- Authors: Michael Swistara
- In Fear of Black Revolutionary Contagion and Insurrection: Foucault,
Galtung, and the Genesis of Racialized Structural Violence in American
Foreign Policy and Immigration Law- Authors: Ciji Dodds
Abstract: This article investigates the power relation between the political anatomy of the Black soul and non-somatic expressions of white supremacy-based violence. Utilizing Michel Foucault’s theories of discipline and punishment in conjunction with Johan Galtung’s theory of structural violence, I posit that the exercise of state-sanctioned discipline and punishment in furtherance of white supremacy constitutes racialized structural violence. Thus, this article contributes to the current public discourse concerning the role white supremacy plays in America by establishing a new construct that can be used to dissect the nature of racial oppression.Furthermore, this article analyzes the genesis and construction of racialized structural violence in American foreign policy and immigration law using America’s response to the Haitian Revolution as a case study. When combined, akin to discipline, American foreign policy and immigration law is a white supremacy-oriented, complex bundle of power technologies designed to evoke docility from Black and Brown nations. Both allow America to engage in dissociative white supremacy. Over time, America’s “right” and power to discipline and punish Black and Brown nations has been normalized as a rational function of our global society.
PubDate: Mon, 07 Feb 2022 11:26:24 PST
- Authors: Ciji Dodds
- Asian Americans and Pacific Islanders and the Prison Industrial Complex
- Authors: Raymond Magsaysay
Abstract: Recent uprisings against racial injustice, sparked by the killings of George Floyd and others, have triggered urgent calls to overhaul the U.S. criminal “justice” system. Yet Asian Americans and Pacific Islanders (AAPIs), the fastest-growing racial group in the country, have largely been left out of these conversations. Identifying and addressing this issue, I intercalate AAPIs into powerful, contemporary critiques of the prison industrial complex, including emergent abolitionist legal scholarship. I argue that the model minority myth, an anti-Black racial project, leads to the exclusion of AAPIs in mainstream and critical studies of crime and carcerality. I begin the intervention by critiquing the lacuna that exists within Asian American Jurisprudence, specifically the erasure of criminalized AAPIs’ voices and experiences. I then demonstrate that AAPIs are caught in the carceral web of mass incarceration by highlighting the lived experiences of AAPI youth within the school-to-prison pipeline, in addition to excavating the minimal publicly available data on AAPI prison populations. Adopting multidisciplinary and multimodal methods, I identify and analyze distinct forms of racial profiling and racialized bullying that drive AAPI students out of schools and into prisons. I pay specific attention to the criminalization of various AAPI youth subgroups as whiz kids, gang members, or terrorists. In uncovering previously unexamined dimensions of the criminal system, I stress how the exclusion of AAPIs in critical discourse obscures the actual scale of the carceral state, erases complex intra- and interracial dynamics of power, marginalizes criminalized AAPIs, and concurrently reinforces anti-Blackness and other toxic ideologies. The Article reaffirms critical race, intersectional, and abolitionist analyses of race and criminalization. It also directly links Asian American Jurisprudence to on-going abolitionist critiques of the prison industrial complex. I conclude with a proffer of abolitionist-informed solutions to the school-to-prison pipeline such as the implementation of an Ethnic Studies curriculum. Lastly, I issue a call, particularly to AAPI communities, for fiercer and more meaningful coalition-building.
PubDate: Mon, 07 Feb 2022 11:26:24 PST
- Authors: Raymond Magsaysay
- Law and Anti-Blackness
- Authors: Michele Goodwin
Abstract: This Article addresses a thin slice of the American stain. Its value derives from the conversation it attempts to foster related to reckoning, reconciliation, and redemption. As the 1930s Federal Writers’ Project attempted to illuminate and make sense of slavery through its Born in Slavery: Slave Narratives From 1936-1938, so too this project seeks to uncover and name law’s role in fomenting racial division and caste. Part I turns to pathos and hate, creating race and otherness through legislating reproduction— literal and figurative. Part II turns to the Thirteenth Amendment. It argues that the preservation of slavery endured through its transformation. That the amendment makes no room for equality further establishes the racial caste system. Part III then examines the making of racial division and caste through state legislation and local ordinances, exposing the sophistry of separate but equal. Part IV turns to the effects of these laws and how they shaped cultural norms. As demonstrated in Parts I-IV, the racial divide and caste system traumatizes its victims, while also undermining the promise of constitutional equality, civil liberties, and civil rights.
PubDate: Mon, 07 Feb 2022 11:26:23 PST
- Authors: Michele Goodwin
