By Huyen Pham & Pham Hoang Van.

As the Biden Administration decides whether to continue the 287(g) program (the controversial program deputizing local law enforcement officers to enforce federal immigration laws), our research shows that the program has broader negative effects on policing behavior than previously identified. To date, debate about the 287(g) program has focused exclusively on the policing behavior of law enforcement agencies like sheriff’s offices that sign the agreements, and on concerns that these signatory local enforcement agencies (“LEAs”) engage in racial profiling. Our research shows that the agreements also negatively affect the behavior of nearby, non-signatory law enforcement agencies. Using 18 million traffic stops drawn from the Stanford Open Policing Project, we find that the agreements caused state troopers in North Carolina and South Carolina to stop Hispanic drivers more often than White drivers, in order to funnel them into the intensive immigration screening conducted by signatory LEAs at the shared jails. Because trooper agencies did not sign the agreements, statistical associations between the presence of agreements and the differential treatment of drivers by race are not contaminated by unobserved confounding factors. Our identification of these previously unnoticed spillover effects raises important policy questions about the program’s impact and the adequacy of existing legal and administrative controls.

Arizona Law Review, 2022. 41p.

By Leroy Pernell

There is a war being waged against African Americans, and their ability to speak out against racial injustice, which is more intense than any past attempt at suppression, since post-reconstruction in America. This war has been characterized by state legislative initiatives aimed at denying consideration or discussion of Critical Race Theory. Under the guise of “Anti-WOKE,” states, such as Florida have sought not only to prevent serious discussion of Critical Race Theory, but to broaden the attack to deny advocacy or discussion of the more general issue of systemic role of race in our understanding of American jurisprudence, as well. These actions have, to date, resulted in legal challenges drawn from First and Fourteenth Amendment considerations. While these constitutional issues are currently in litigation and have yet to be determined, there has not been additional consideration of the possible impact of silencing voices of communities of color in ways reminiscent of the voiceless role of slaves. The Thirteenth Amendment prohibition of” Badges of Slavery” suggests an analytical perspective that has heretofore not been discussed. This brief commentary explores both the history and possible current application of the Badges of Slavery doctrine as a counter to current state legislative efforts at silencing. Because the author is currently involved in litigation challenging these attacks on First and Fourteenth Amendment grounds, discussion of those issues are not addressed here. Instead, this commentary focuses exclusively on an argument not made – the Thirteenth Amendment ban on badges of slavery. enter Abstract Body

Available at SSRN: https://ssrn.com/abstract=4633259

By Mary Holper

Immigration detainees challenging immigration judges’ bond decisions are hitting a jurisdictional wall — federal courts are given license to ignore errors that immigration judges make in determining dangerousness and flight risk, because such decisions can be categorized as “discretionary.” This license comes from a 1996 amendment to the Immigration and Nationality Act, which removed federal courts’ jurisdiction over discretionary decision to detain for immigration purposes. Detainees’ important liberty interests are left to the whims of a single immigration judge, who determines bond under conditions representing an implicit bias minefield. This article explores justifications for unreviewable discretion and for stripping federal courts over immigration decisions and argues that none of these justifications are applicable when an immigration judge decides whether to detain a person pending their removal proceedings. The article explores manners in which the judiciary can limit the reach of this jurisdiction-stripping statute, and in order to ensure that immigration detainees will not face an unclimbable wall when seeking federal court review of their bond decisions.

Boston College Law School Legal Studies Research Paper No. 607 2023.

By Paul Gowder

What is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions? This open access book traces the promise and paradox of the American rule of law in three interwoven ways. It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the goals of its constitutional framers to see the rule of law ambitions its foundational institutions express? It considers those constitutional institutions as inextricable from the problem of race in the United States and the tensions between the rule of law as a protector of property rights and the rule of law as a restrictor on arbitrary power and a guarantor of legal equality. In that context, it explores the distinctive role of Black liberation movements in developing the American rule of law. Finally, it considers the extent to which the American rule of law is compromised at its frontiers, and the extent that those compromises undermine legal protections Americans enjoy in the interior. It asks how America reflects the legal contradictions of capitalism and empire outside its borders, and the impact of those contradictions on its external goals.

Oxford; London; New York: Hart, 2021. 215p.

By  Rosita Fibbi • Arnfnn H. Midtbøen and Patrick Simon

This open access short reader provides a state of the art overview of the discrimination research field, with particular focus on discrimination against immigrants and their descendants. It covers the ways in which discrimination is defined and conceptualized, how it is measured, how it may be theorized and explained, and how it might be combated by legal and policy means. The book also presents empirical results from studies of discrimination across the world to show the magnitude of the problem and the difficulties of comparison across national borders. The concluding chapter engages in a critical discussion of the relationship between discrimination and integration as well as pointing out promising directions for future studies. As such this short reader is a valuable read to undergraduate students, as well as graduate students. IMISCOE Short Reader

Cham: Springer Nature, 2021. 105p.

By The U.S. Civil Rights Commission

The U.S. Commission on Civil Rights last addressed civil rights and constitutional concerns in connection with the immigration detention of families and children, including conditions of detention centers in its 2015 report, With Liberty and Justice for All: The State of Civil Rights at Immigration Detention Facilities(“2015 Report”).  In 2018, public reports documented worsening conditions at the southern border. Changes in federal policy further resulted in substantially increased law enforcement activity at the southern border and the separation of thousands of migrant children from their parents. Recent developments have resulted in serious civil rights implications, including the protection of the physical and mental well-being of both adult and child immigration detainees and their due process rights. In light of these concerns the Commission formed a bipartisan subcommittee and reopened its 2015 Report to update its investigation of the immigration detention of families and children.  The subcommittee ) sought information from the Departments of Homeland Security and Health and Human Services, ) held a public comment session where it took in testimony from experts, impacted individuals, witnesses to the impacts of family separation, and other interested members of the public, and solicited written comments from the public….

Washington, DC: USCCR, 2019. 208p.

By The Criminal Justice Alliance

  This study seeks to expand on the limited evidence published to date on the experiences of Black, Asian and minority ethnic women prisoners3 (Buncy and Ahmed, 2014; Cox and Sacks-Jones, 2017; Prison Reform Trust, 2017). It aims to better understand and amplify the diverse experiences of Black, Asian and minority ethnic prisoners, including Gypsy, Roma and Traveller people, as well as foreign nationals, across the women’s prison estate in England. This report recognises that the survey respondents are not a homogenous group. They encompass various identities and ethnicities, resulting in a range of lived experiences, both between and within groups. The discrimination experienced by Black, Asian and minority ethnic prisoners held in women’s establishments is multi-layered, with intersectional identities: ethnicity, race, religion, social class, sexual orientation, nationality and gender. Intersectionality recognises that, as individuals are made up of several identities, they may experience multiple interwoven prejudices. For example, women may experience gendered discrimination, and women from minoritised communities could simultaneously face additional forms of discrimination. The findings in this report were gathered by interviewing and surveying individuals within the project’s scope. It presents their perception of (un)fair treatment and the extent to which the prison meets their cultural needs. It provides further detail on incidents of discrimination and the establishment’s response. It addresses the language barriers faced by those whose first language is not English. It also provides examples of positive practice and suggestions for future activities that raise awareness of cultural practices and celebrate religious traditions.  

London: The Criminal Justice Alliance, 2022. 84p.

Edited by Robert T. Chase

This volume considers the interconnection of racial oppression in the U.S. South and West, presenting thirteen case studies that explore the ways in which citizens and migrants alike have been caged, detained, deported, and incarcerated, and what these practices tell us about state building, converging and coercive legal powers, and national sovereignty. As these studies depict the institutional development and state scaffolding of overlapping carceral regimes, they also consider how prisoners and immigrants resisted such oppression and violence by drawing on the transnational politics of human rights and liberation, transcending the isolation of incarceration, detention, deportation and the boundaries of domestic law.

Durham, NC: University of North Carolina Press, 2019. 440p.

By Jessica Pandian

Despite decades of activism from bereaved people and their supporters, too often the deaths of racialised people in prison have been dismissed, and the role of racism has been overlooked and ignored.

INQUEST’s new report, Deaths of racialised people in prison 2015 – 2022: Challenging racism and discrimination, makes a powerful intervention as it uncovers new data and tells the stories of 22 racialised people and how they died preventable and premature deaths in prison.

The report specifically looks at the deaths of Black and mixed-race people; Asian and mixed-race people; Middle Eastern and mixed-race people; people of Eastern European nationality; White Irish people and White Gypsy or Irish Traveller people.

Through a literature review, an analysis of never before published data on ethnicity and deaths in prison, and an examination of the relevant inquests and investigations, the report evidences the role of  institutional racism in the prison estate.

Key issues include the inappropriate use of segregation, racial stereotyping, the hostile environment, the neglect of physical and mental health, the failure to respond to warning signs, and the bullying and victimisation of racialised people.

London: INQUEST, 2022. 80p.

By Amanda Agan and Sonja Starr

“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race (or other observable characteristics). To investigate BTB’s effects, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City both before and after the adoption of BTB policies. These applications varied the race and felony conviction status of the applicants. We confirm that criminal records are a major barrier to employment: employers that ask about criminal records were 63% more likely to call back an applicant if he has no record. However, our results support the concern that BTB policies encourage statistical discrimination on the basis of race: we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to employers with the box received 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.

New Haven, CT: Yale University, 2016. 60p.

By Ivan Y. Sun and Yuning Wu

This book discusses the issues surrounding race, ethnicity, and immigrant status in U.S. policing, with a special focus on immigrant groups’ perceptions of the police and factors that shape their attitudes toward the police. It focuses on the perceptions of three rapidly growing yet understudied ethnic groups – Hispanic/Latino, Chinese, and Arab Americans. Discussion of their perceptions of and experience with the police revolves around several central themes, including theoretical frameworks, historical developments, contemporary perceptions, and emerging challenges. This book appeals to those interested in or researching policing, race relations, and immigration in society, and to domestic and foreign government officials who carry law enforcement responsibilities and deal with citizens and immigrants in particular.

Palgrave, 2018. 195p.