Who Can Afford to Stay Out of Prison?

Compared to other “developed” countries, the U.S. experiences a shocking disparity in wealth amongst its population. The official 2020 poverty rate, as recorded by the U.S. Census, was 11.4%. But existing above the poverty line hardly guarantees comfort. Poverty status is determined by comparing pre-tax income against three times the minimum cost of food in 1963. No other calculations, just food from 1963. Currently, seven out of ten Americans live paycheck to paycheck. Even before the pandemic took off, a third of families in the United States could not afford an unexpected $2,000 expense. It’s clear that in the year 2022, being above the poverty line is not enough to live. The negative effects of financial insecurity permeate every aspect of a person’s life in the United States. Financial insecurity quickly leads to high rates of housing instability, food insecurity, and lack of access to basic health services. In a society that criminalizes being poor, without these necessities, poverty too often leads to incarceration. 

Ongoing economic disparities, highlighted by the Covid-19 pandemic, have led to a steadily growing labor movement in recent years. The continued failure of the federal government to secure a liveable wage directly contradicts the intent of the Fair Labor Standards Act (FLSA)—to establish a minimum living standard for employees and their families. The original federal minimum wage was meant to ensure a “decent standard of living” for all workers. In his speech on the National Industrial Recovery Act, President Franklin D. Roosevelt clarified the purpose of a minimum wage explicitly. The federal minimum wage was enacted to ensure a standard that meant more than a “bare subsistence.” In 1938 that translated to 25 cents an hour. The current federal wage has not been raised since 2009 and reflects $15,080 a year, if working full-time. With a federal minimum wage that doesn’t even cover a third of an average state’s liveable income and a median salary that barely makes ends meet, many Americans find themselves in incredibly difficult financial situations compared to the once promised “decency” standard. 

The correlation between income and mass incarceration has long been documented. Poverty makes people more susceptible to being arrested, more likely to be charged with a serious crime, and more likely to receive a harsher sentence. And because of who is statistically most likely to suffer from poverty, the correlation between insufficient wages and incarceration disparately affects Black, Indigenous, and People of Color (BIPOC) communities. 

Research conducted by the Brookings Institute in 2018 demonstrated that 56 percent of people incarcerated had no annual income (less than $500) during the two years preceding their incarceration. Drug offenses account for the incarceration of nearly half a million people. Though substance use disorder and poverty are believed to perpetuate each other, data shows that recovery from addiction is less likely for people in poverty. According to SAMHSA, lack of health insurance and lack of funds are common reasons why people who recognize they need treatment for a substance use disorder do not enter a rehabilitation program. In 2016, the Council of Economic Advisers conducted a study that found increasing minimum wage reduces violent crime and crimes committed by adolescents. The Council’s study showed that a 10 percent increase in wages for non-college educated men reduces the crime rate by 10 to 20 percent. 

Advocates for raising the minimum wage, or aiming even higher for a universal base income, argue—backed by statistics—that crime rates decrease when people’s financial needs are met . A person is less likely to be incarcerated if they do not experience financial insecurity. Logically, the long-term solution to mass incarceration is to ensure that less people experience financial insecurity. 

How to fix the negative correlation between financial security and incarceration? The simple answer: pay people enough to live.

L. Moose

The Reality of Critical Race Theory

A reasonable person observing the current affairs of the United States government might describe tensions between Democratic and Republican parties as “divisive.” Though policy disagreements between the two parties cover an exceptionally long list, of particular interest to this blog is the contention surrounding Critical Race Theory (CRT) and the effects a ban on teaching this concept has on a well-rounded understanding of the criminal justice system. 

CRT is not a new concept in academia. Though naming the link between the impacts of race and the rules governing society is relatively new, the basic idea that experiences make up reality and that societal norms influence the law traces all the way back to the late 19th or early 20th century. The impact of race on society in the United States is real and part of this country’s history. CRT examines the influence of these historical realities on institutions and systems within the United States. Recent political attacks on the merits of CRT are mostly entrenched in misconceptions and exaggerations that distort the actuality of CRT and instead attack teaching historical truths in classrooms. Very little evidence reflects extensive CRT actually being taught in K-12 schools to the level of concern advertised by politicians. The closest most classrooms get is acknowledging that slavery is part of American history

As of 2022, 14 states have already banned or restricted CRT in classrooms with significantly more states trying to follow suit. Most recently, the Wisconsin Senate passed a bill that, if not vetoed, will ban the teaching of CRT in K-12 schools. Though CRT focuses on the effect of historic racism on all members of current society, legislators justified the bill with concerns that teaching the harms of racism might also teach white children to “feel bad” about themselves.

To understand the intent behind teaching CRT, it is important to understand its roots. CRT is a technical term used to describe an academic study that grew out of the critical legal studies (CLS) movement of the 1960s and 70s. CLS examined how the law and legal institutions served property interests of the wealthy and powerful at the expense of the poor. Critical legal theory, in turn, can be traced back to the early 20th century political philosophy of the Frankfurt School—“critical theory.” Critical theorists believed that the primary goal of philosophy is to understand and combat the power structures that dominate and oppress people. Formed in 1922, the philosophers of the Frankfurt School fled to the United States in the early 1930s to escape the Third Reich—a fascist regime that banned, censored, and burned books it categorized as “un-German.” Nearly a century later, the Frankfurt School’s American progeny—CRT—is persecuted here in the United States. 

True to its roots, CRT acknowledges that the only way to eliminate racism is to understand its institutional or structural forces. CRT recognizes that racism is not merely a product of individual biases but something embedded in laws, policies, and institutions that cause racial inequities. CRT emerged as a reaction to the deficient concept of “color blindness.” The fundamental tenets of critical race theory are that race is a social construct upheld not merely by individuals but by our legal system and institutions and that racism is “banal and common.”  

In conflict with CRT’s origins and reasoning, modern critics of CRT use the term to refer to nearly anything that confronts racism—everything from “social justice” to Black Lives Matter protests. Though CRT has been the subject of legitimate debate within academia over the years, recent critics of CRT cannot articulate what exactly CRT is, let alone identify what is “un-American” about it. Much of the opposition to CRT derives merely from a misguided perception that CRT tries to convince white people that they are inherently racist and they need to feel guilty for their privilege. In reality, CRT suggests the opposite—individual white people are not inherently racist. Rather, a system built on historically racist laws is systemically racist. 

A fundamental concept within CRT is the influence of race on the legal system in the United States—particularly the use of criminal law to control non-white populations. Racial disparity exists in the criminal justice system when the proportion of one racial group within that system is greater than the proportion of that group in the general population. Black, Indigenous, and People of Color are overrepresented in the criminal justice system. People in these groups are more likely to be unjustly accused of criminal behavior and to be victims of police brutality, and they are more likely to experience lengthy prison sentences. The causes of this disparity can be traced back to racist laws, institutions, and policies: redlining, the war on drugs, mandatory minimums, food deserts, a policing system rooted in slavery, police militarization, etc. Statistically, these racial disparities are undeniable. CRT confronts the reasons behind these undeniable statistics in the hopes of initiating positive change. To not only abandon this theory but to completely ban CRT teachings severely limits the historical accuracy of this nation’s past and also limits a more progressive future. 

L. Moose

No Decision Without Representation: The Necessity of a More Diverse Judiciary

Yesterday, January 26, 2022, President Biden vowed to nominate a Black woman to the Supreme Court upon the retirement of Justice Stephen Breyer. The novelty of President Biden’s promise reflects an extreme lack of representation within the judiciary outside the standard of white, cisgendered, and male. For a system that determines how the law applies to everyone, the judiciary, similar to other aspects of the legal profession, fails to adequately represent the racial and ethnic diversity of the United States, nor does it reflect sufficient LGBTQ+ representation

White men largely control Art. III courts. Over 71% of active Art. III judges are white, and over 64% of them identify as men. The lack of diverse representation is not unique to the federal judiciary—state supreme courts share in this gross disparity. 

A 2020 study reported there are no Black supreme court justices in 28 states, no Latinx justices in 40 states, no Asian justices in 44 states, and no Native American justices in 47 states. The same study found that women hold only 39% of state supreme court seats. These disparities extend beyond race and gender, but in a way that still disproportionately affects Black, Indigenous, and People of Color (BIPOC) communities. For instance, 81% of state supreme court justices have a background in private practice, but only 2% have a background in civil legal aid. In the criminal realm, 37% of state supreme court justices have experience with prosecution, and only 7% of justices have experience as public defenders. The number of states with at least one former public defender on the state supreme court is 19, but 43 state supreme courts have at least one former prosecutor on the bench. Overall, judiciary statistics clearly reflect one specific identity. 

Before the end of 2021, the senate confirmed 40 new Art. III judges nominated by President Biden. Biden has prioritized diversity in these nominations: 80% of his appointees identify as women, and 65% identify as BIPOC. Though former presidents, including Republicans, have promised (and sometimes even made good on those promises) to appoint women or BIPOC justices to the high court in the past, conservative news hosts are having a field day criticizing Biden for appointing judges in a “discriminatory fashion.” But fixing the overwhelming lack of representation on courts is not discriminatory; rather, it is necessary to appropriately reflect the population. 

Why are courts full of white men?

White men control the appointment of federal judges. The process of becoming an Art. III judge includes a nomination by the sitting president followed by a confirmation by the U.S. Senate. Previously, the confirmation required 60% of Senate votes, now a simple majority suffices. Overwhelmingly, the people that make up this process identify as white cisgendered men. Additionally, these appointments last for life. Absent a violation of “good behavior” federal judges stick around until they retire or die. The Constitution provides no explanation on “good behavior.” Since the inception of the judiciary a grand total of eight federal judges have been removed from the bench. The total number of successful impeachments compared to the total number of current federal judges, let alone every federal judge to ever sit on the bench, clearly reflects the likelihood of a lengthy term. Once a white man has been appointed to the federal bench, odds are he is going to stick around for a while and prevent diverse identities from taking over his seat.

Despite nothing in the Constitution specifying qualifications, you are not apt to receive a nomination to the federal bench sans J.D. Logically, a person deciding law on behalf of the nation should have some sort of legal education, but for persons of color and members of the LGBTQ+ community law school has historically been accompanied by obstacles present at application, admission, and attendance that significantly impact the demographic of the legal profession. Statistics are on the side of white cisgendered men going to law school, incurring less debt at law school, performing decently in law school, and getting a job after law school. Non-surprisingly, this pipeline leads to more white cisgendered men nominated to the federal bench. Additionally, the federal judiciary is largely composed of men from “elite” law schools, with Yale and Harvard producing approximately one quarter of the appellate bench and all but one current U.S. Supreme Court justice. 

When a person does deviate considerably from this “standard” identity, their selection to the Supreme Court risks cries of “identity politics.” President Biden’s promise to nominate a Black woman has already exemplified this reality.

The last woman of color to be nominated to the Supreme Court also experienced this attack. Justice Sonia Sotomayor is the first person to identify as Hispanic and the first to identify as Latina to sit on the Supreme Court. She is only the third woman to serve as a Supreme Court Justice. She brought more overall judicial experience to the Court than any other justice in 70 years preceding her nomination. Opposition to her confirmation accused her of impartiality due to her comments regarding a white man’s inability to relate to the experiences of a “wise latina woman.” Before her appointment, Justice Sotomayor spoke at the University of California School of Law at Berkeley; her speech centered on the premise that a person’s lived experiences shape their work in the legal profession—more diversity in the law will help it evolve. During this speech she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” This quote led to op-eds of “identity politics mania” and some tried to explain away her nomination as a “diversity hire.” 

Though she ruffled some fragile feathers, Justice Sotomayor made a completely valid point. Her perspective along with the experiences of other persons of color and other members of historically disenfranchised groups are ones that need to be more prominent within the federal judiciary. The Art. III judges decide issues of equal protection regarding race and ethnicity. The Art. III judges decide issues affecting LGBTQ+ rights. The Art. III judges decide issues that apply specifically to persons who do not identify as white cisgendered men. Persons directly affected by a decision should have appropriate representation when the decision is made. This is a principle on which the United States founded itself—“no taxation without representation.” Albeit, an imperfect analogy (the federal judiciary does not generate tax statutes) the underlying premise remains consistent—don’t make decisions for groups of people that do not have a voice at the table. 

Currently, the federal judiciary does not adequately represent the population that its decisions affect. Issues affecting rights specific to birthing people, the LGBTQ+ community, and persons of color are featured prominently in federal courts. A Black woman set to replace Justice Breyer is not just “long overdue.” This representation, as well as the inclusion of other diverse identities in future nominations, is necessary to adequately reflect the interests of persons whose rights and livelihood are reliant on decisions made by the judiciary. 

L. Moose

Transgender Day of Remembrance

*Content Warning: This post provides context and history for Transgender Day of Remembrance, please be mindful of your capacity when clicking on source links—some of the linked sources contain graphic detail surrounding hate crimes against the transgender community.*

To date, the legal system has not only failed to protect the safety and welfare of transgender, nonbinary, and gender nonconforming persons, it has also engaged in active fear mongering to perpetuate the unjust exclusion of these people from the legal community. 

In 1999, Gwendolyn Ann Smith held the first Transgender Day of Rememberance vigil in memory and honor of Rita Hester. Rita Hester, a Black transgender woman, was brutally killed inside her home in 1998. In the days that followed Rita’s death, the media belittled her identity by misgendering her and putting her first name in quotation marks—her murder has yet to be solved. Since the first Transgender Day of Rememberance, vigils are held annually on Novemeber 20 to raise awareness regarding crimes motivated by a hatred of transgender and gender nonconforming people. In addition to memorializing those who have died as the result of hate, the maltreatment of transgender identities by the media and lack of general public outcry necesitate public vigils to draw attention to the innocent lives lost.

The level of disparity in acts of violence committed against people who are transgender compared to their cisgender counterparts is horrifying. A transgender person is four times more likely to be the victim of a crime than a cisgender person. This disproportionate violence is particularly drastic for transgender women of color. At least forty-seven transgender or gender nonconforming people, most of whom are BIPOC, have already been murdered in 2021. But fellow civilians are not the only threat, transgender people suffer government sanctioned violence. A 2013 U.S. government report found that one in four cases of sexual assault in U.S. Immigration and Customs Enforcement (ICE) detention was perpetrated against a transgender person and that multiple transgender women in custody were abused by ICE guards. Many are kept in solitary confinement for extended periods and deprived of necessary medical care. 

Nearly every part of our legal system continues to attack the lives of transgender people. Transgender people are overrepresented at every stage of the criminal justice system, from negative police encounters to incarceration. Criminal law isn’t the only avenue used to oppress this community. Transgender people have faced hatred and discrimination in healthcare law, election law, immigration law, identity document laws, property law, and athletics and education, to name only a few. Former President Trump systematically targeted the rights of transgender people from the first day he took office until his defeat in 2020. This year has set a record high number of anti-trans rights bills around the country.

The law has harshly mistreated the transgender community at every turn. The failure to promote inclusivity and acknowledge human rights is unfortunately not unique across the states. Specific to Montana, Attorney General Austin Knudsen, has made painstakingly clear his disregard for the rights of transgender people, as has Governor Gianforte. Not only are transgender people too often victimized and baselessly vilified by the legal system, they are severely underrepresented within the legal profession. Clearly, drastic change is necessary to protect transgender lives and foster a more inclusive legal community. Cisgender people cannot effectively determine the best solution to this systemic problem. Rather, cisgender people need to make way for those most impacted by transphobic hate crimes and help amplify transgender voices. 

To stop the hate fueled violence against the transgender community requires a system overhaul. Beyond ending the epidemic of violence against transgender people, the law must stop establishing and reinforcing barriers meant to exclude these people from the legal community. This year, on Transgender Day of Remembrance, as we honor and mourn those lives unfairly lost and impacted by violent hate crimes, we should reflect on and condemn the legal system’s role in perpetuating the oppression of transgender, nonbinary, and gender nonconforming people. 

Further Reading:

Transgender Law Center 

Transgender Legal Defense & Education Fund 

Traditional Means of Achieving Communal Justice

*This post considers general traditional concepts derived from Indigenous cultures. Tribal nations are individual sovereigns—this post does not attempt to represent nor intend to diminish the full diversity represented by the cultures and traditions of Indigenous peoples. Additionally, throughout this post “Indian” is used as a legal term used in the context of Federal Indian Law.

As described by retired Chief Justice Joe Flies-Away of the Hualapai Nation Court of Appeals, traditional Indigenous approaches to justice passed down through generations have culminated in a “Native Standard” focused on relationships and connection. This concept works to heal a person who harms another individual or society. Traditional Indigenous approaches to justice separate the offending action from the person by recognizing that when a person harms another, they act as if they were disconnected from their community. This detached behavior is remedied by reconnecting individuals to their surrounding community. Traditional practices emphasize the importance of reintegrating individuals into the community over enforcing punishment.

“America responds to crime after the fact, not before the fact.” – Retired Chief Justice Robert Yazzie of the Navajo Nation Supreme Court

When Western culture forcibly assimilated Indigenous peoples, it did its best to supplant restorative justice practices with its version of criminal justice. Notwithstanding outstanding legal obstacles, many traditional Indigenous restorative justice practices continue today, both within and outside Indian country.

The Navajo Nation reinstituted its traditional dispute resolution method in the modern day Peacemaker Court. This Court is grounded in respect and solidarity for the group and reciprocal relationships. When a dispute arises, all parties involved, including their family members and other interested persons, come together to discuss the issue and reach a resolution. The overriding goal is to restore harmony in the spirit of the offender—rather than punish them—and to mend the relationships between the parties and their families. This approach reflects the belief that making the offender whole again will bring harmony and balance to the entire community. The Mille Lacs Tribal Court uses traditional Circle Sentencing, a process in which disputants, community members, and elders come together in a circle to talk over issues and decide on the best course of action. Like the Navajo Peacemaker Court, Circle Sentencing includes the parties’ families and other interested parties and they seek to mend relationships and heal lives. Youth courts in Northern Minneapolis adopted Circle Sentencing in the 1990s, and today sentencing circles are used in a variety of settings in North America for both youth and adult offenders. 

Despite the enduring efforts, and successes, of tribes to practice traditional methods of restorative justice, Western culture continues to impose its views on Indigenous peoples at the expense of tribal sovereignty. 

In 1881, Lakota chief Spotted Tail was killed by Crow Dog, a member of the Brule Sioux. In response, the Tribal Council required Crow Dog to pay restitution. The Council resolved Crow Dog’s actions in accordance with Sioux tradition. Restitution did not satisfy the U.S. government—it separately prosecuted Crow Dog for murder in federal court and sentenced him to death. On a writ of habeas corpus, the Supreme Court found that the federal government had no jurisdiction where the tribal council had already intervened between two Indians within Indian country. The Court’s recognition of the Tribe’s restorative justice approach was backtracked by Congress’s immediate passing of the Major Crimes Act (MCA). At its origin, the MCA placed seven felonies under the jurisdiction of the federal government, even if committed by an Indian within Indian country. Congress has since expanded the list of felonies that trigger federal jurisdiction under the MCA. 

The MCA exemplifies Western culture’s inability to appreciate and recognize the traditional practices of Indigenous peoples. Not only does the MCA directly affront inherent tribal sovereignty, it embodies Western culture’s absolute refusal to acknowledge the effectiveness of approaches different to its own. In Ex Parte Crow Dog, the Tribe addressed the conflict according to traditional teachings. But because this traditional method did not encompass Western ideals of retribution and punishment, the federal government, and the public at large, simply could not understand this form of justice. 

In 1883, the Courts of Indian Offenses were established in response to the U.S. government’s failure to grasp tribal approaches to criminal justice. The Bureau of Indian Affairs (BIA) operated these courts in a manner that imposed Western values and infringed on tribal sovereignty. The BIA often exceeded the scope of its adjudicatory power and punished any conduct it perceived to be too “Indian” or any attempt by tribes to reject assimilation. Under the Indian Reorganization Act of 1934, many tribes began rebuilding their tribal courts. However, the U.S.’s efforts to diminish indigenous justice continued through a complex web of state and federal jurisdiction rules. 

The recent case of Lezmond Mitchell, a member of the Navajo Nation who was executed by the federal government, exemplifies this inability to fathom a justice system not grounded in harsh punishment. Despite the Federal Death Penalty Act’s requirement that tribes consent to the federal government’s pursuit of the death penalty against members of their nations, U.S. then-Attorney General John Ashcroft exploited a loophole that allowed him to pursue the death penalty outside the MCA under a “carjacking resulting in death” statute. Ashcroft did so over the strenuous objections of the Navajo Nation. The immediate family of the victims, also members of the Navajo Nation, were incredibly outspoken in their opposition to the death penalty. Punishment that embodies concepts of revenge is antithetical to the Navajo Nation’s culture. Despite these clear objections, Lezmond Mitchell was executed. 

The current criminal justice system in the U.S. relies heavily on ideals of retribution and punishment. This emphasis has resulted in exceptionally costly mass incarceration and ineffective cycles of recidivism. As retired Chief Justice Yazzie astutely pointed out, the current system in the U.S. plays a tired game of catch-up with criminal activity rather than remedying it at the source. When considering methods of criminal justice reform, we would do well to look to Indigenous sovereigns that focus on community and healing instead of ineffective attempts to rehabilitate through punishment. 

L. Moose

Additional Reading:

About Peacemaking – Indigenous Peacemaking Initiative

Report on Holistic and Traditional Justice Roundtable

Restorative Justice Practices in Tribal Courts

Gretchen Ulrich, Widening the Circle: Adapting Traditional Indian Dispute Resolution Methods to Implement Alternative Dispute Resolution and Restorative Justice in Modern Communities, 20 Hamline J. Pub. L. & Pol’y 419 (1999).

Gloria Valencia-Weber, Tribal Courts: Custom and Innovative Law, 24 N.M. L. Rev. 225 (1994).

Indigenous Disenfranchisement: A Montana Tradition Kept Alive Through Incarceration 

In 1776, the power to vote in the United States belonged solely to landowning white men over the age of 21. This grotesque power dynamic has been jealously guarded by lawmakers for centuries. 

In 1870, almost 100 years after the Declaration of Independence, the 15th Amendment supposedly secured voting rights for Black men. Aggressive measures, such as poll taxes, literacy tests, and discriminatory state laws, prevented the full exercise of this right. Women were denied suffrage until 1920. But for women of color, immigrant women, and women who faced extreme socioeconomic difficulties, the 19th Amendment failed to effectively guarantee voting rights. It wasn’t until the Indian Citizenship Act (Snyder Act) of 1924 that Native Americans were recognized as U.S. citizens—but it still took over 40 years after the Act for all 50 states to recognize Native American voting rights. Asian Americans were denied voting rights until 1952 under the Immigration and Nationality Act

Eventually, the Voting Rights Act of 1965 barred state voting limitations that targeted race, gender, and socioeconomic status. However, language minorities in the U.S. were not explicitly protected until 1975, and it took Congress until 1982, 39 years ago, to require accessibility protections for the elderly and people with disabilities. Exceptional amounts of time and effort have gone into ensuring basic voting liberties, yet the fight for equitable voting in the U.S. continues. Many states still persist in attempts to restrict voting rights

In Montana, habitual disenfranchisement remains prominently displayed by the State’s treatment of Indigenous voters. Despite mostly favorable rulings, cases such as Windy Boy v. Big Horn County (1986), Wandering Medicine v. McCulloch (2012), and Western Native Voice v. Stapleton (2020) make it clear that the voting rights of Indigenous peoples in Montana are constantly under attack. Last legislative session, Montana passed two discriminatory voting laws—HB 176 (prohibits same-day voting registration) and HB 530 (limits organized ballot collecting). In tandem, these bills enhance the difficulties of rural voting, particularly voting within rural reservations boundaries. Though proponents of these recent bills argue the new regulations reduce chances of election fraud, the design of HB 176 and HB 530 has a hugely disparate impact on the ability to vote for people within reservation boundaries. Though the Montana Legislature’s pattern of disenfranchisement attempts continue, Montana also manages to consistently restrict voting rights in another major way: felony convictions

In almost every state, a felony conviction significantly impacts a person’s voting rights. Although Montana is more lenient than others—it only prohibits voting while incarcerated compared to some states’ complete disenfranchisement—this restriction demonstrates a large bias against Montana’s Indigenous population. Regardless of opinion on the morality of felony disenfranchisement, Montana’s approach represents a continued effort to restrict the voting rights of Indigenous peoples because of their incredibly disproportionate rate of incarceration. Despite representing a fraction of Montana’s general population, Indigenous peoples make up 20% of the total state prison population. 

Most incarcerated Indigenous peoples in Montana are held for probation or parole violations—e.g., failure to enroll in or finish substance abuse treatment, failure to check in with their parole or probation officers, or impermissible drug and alcohol use. Though the Montana Legislature introduced some reforms in 2017 aimed to reduce re-sentencing for parole, probation, or conditional release violations, these reforms have not yet impacted Indigenous overrepresentation in Montana’s prison system. Failure to comply with conditions of release and this overwhelming disparity suggests the causes of Indigenous incarceration are systemic. As a result of forced assimilation, generational trauma, and government divestment, Indigenous peoples are statistically more likely to experience factors that are typically criminalized such as addiction, mental illness, shortage of affordable housing, limited access to food, and general poverty. Indigenous youth in the United States are statistically more likely to have contact with law enforcement and are three times as likely to be detained or committed to a juvenile facility than their white peers. 

Montana has a history of utilizing the legislature to suppress Indigenous voting rights. Although challenging problematic bills is essential to ensuring equitable voting rights, equally as important is addressing criminal justice reform. The extreme disparities in incarceration directly impact the voting rights of Montana’s Indigenous population. Without fixing the root causes of this disparity, Indigenous voters will continue to be silenced. 

L. Moose

Further reading:

Montana Lawmakers Reject Bill to Ease Voting for Native Americans 

Suit Targets Laws that Opponents Say Hurt Native Americans

Tribal Nations in Montana: A Handbook for Legislators

Georgia v. McMichael: The Murder of Ahmaud Arbery

The Georgia v. McMichael trial began this week in the Superior Court of Glynn County, Georgia. 

Travis McMichael, Gregory McMichael, and William Bryan are on trial for the murder of Ahmaud Arbery in February 2020.

On February 23, 2020, Ahmaud Arbery, a 25-year-old Black man, went for a jog in broad daylight in Brunswick, Georgia. Gregory McMichael, a 67-year-old retired police officer and resident of the Santilla Shores neighborhood, was standing in front of his house when Arbery jogged by. McMichael and his son, Travis McMichael, immediately grabbed a handgun and a shotgun, got in their truck, and hunted Arbery down. Neighbor William Bryan also joined the pursuit of Arbery. The three of them eventually cornered Arbery on the street and opened fire on him. Unarmed and defenseless, Arbery died from three shotgun wounds. After killing Arbery, the McMichaels and Bryan attempted to justify their public lynching to police by alleging they suspected Arbery of burglarizing houses in the neighborhood. The killing was caught on video.

Despite Gregory McMichael self-reporting to police, no one was arrested until over two months after Arbery’s death. George Barnhill, the second Georgia DA to recuse himself from the investigation because of his connection to the McMichaels, wrote a letter to the Glynn County Police Department arguing there was no probable cause to arrest McMichael, citing a Georgia state vigilante law

The first video of Arbery’s murder surfaced in May 2020, sparking public outcry and pressuring Glynn County to file charges against the assailants. An indictment was finally filed on June 24, 2020. The three defendants were charged with malice murder, felony murder, aggravated assault, false imprisonment, and criminal attempt to commit a felony. A federal grand jury also indicted the three defendants in April 2021 for federal hate crimes and attempted kidnapping. That trial is set to begin in February 2022. Before Arbery’s murder, Georgia was one of only four remaining states without hate crime laws. The public protest associated with his death pushed Georgia lawmakers to finally pass hate crime legislation that went into effect July 2021. 

Jury selection in Georgia v. McMichael is still ongoing on the fourth day of trial. The court summoned over 1,000 jurors from the overwhelmingly white Glynn County. So far the subject of race has dominated voir dire, with defense counsel asking questions, such as, “Do you think someone who opposes ‘[B]lack lives matter’ is necessarily racist?” The United States has a long history of racism in jury selections. Although Batson v. Kentucky (1986) prohibited prosecutors from intentionally using peremptory challenges to strike Black jurors, in reality, racial discrimination continues to taint jury selections. 

Overt racism killed Ahmaud Arbery. Though his murderers are finally on trial, the circumstances surrounding the prosecution of Arbery’s killers not only demonstrate a failing of our legal system to apply its version of justice equally to people of color, it exemplifies this system’s protection of white supremacy. Ahmaud Arbery should still be alive—justice is not simply a guilty verdict. Justice is a society that refuses to enable racially motivated public executions. 

L. Moose 

Live Streaming of the McMichael Trial

Evidence of Flight in the Context of Race and Police Brutality

Evidence of flight—that is, evidence that a criminal defendant fled from a crime scene or attempted to conceal criminal activity—is generally admissible at trial. United States v. King, 200 F.3d 1207 (9th Cir. 1999); State v. Walker, 148 Mont. 216, 419 P.2d 300 (1966). The justification for this rule is that evidence of flight is probative of the defendant’s “consciousness of guilt.” United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). However, for historically disenfranchised and over-policed communities, flight from law enforcement is more probative of something else: systemic racism. For people of color, interactions with police often result in racial profiling, harassment, assault, or even murder. Because of over-policing and police brutality, there is a deeply rooted distrust of law enforcement within BIPOC and other historically disenfranchised communities. Therefore, as is so often the case in our legal system, this seemingly innocuous and logical evidentiary rule was shaped by white men for white men. 

Most federal circuit courts determine whether evidence of flight was properly admitted by the trial court by considering the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. Myers, 550 F.2d at 1049; King, 200 F.3d at 1215; United States v. Al-Sadawi, 432 F.3d 419, 424 (2d Cir. 2005); United States v. Obi, 239 F.3d 662, 665–66 (4th Cir. 2001); United States v. Suggs, 822 Fed. Appx. 422, 431 (6th Cir. 2020); United States v. Russell, 662 F.3d 831, 850 (7th Cir. 2011); United States v. Hankins, 931 F.2d 1256, 1261 (8th Cir. 1991); United States v. Maxi, 886 F.3d 1318, 1332 (11th Cir. 2018). However, this test does not account for the defendant’s race. This taints the reliability of each inference in the chain, with each step becoming progressively less reliable. As to the first inference, a BIPOC person might flee from law enforcement without realizing they are fleeing from a crime because they want to avoid the indignities of racial profiling. As to the second inference, BIPOC flight is less probative of consciousness of guilt, and much more probative of the damaging presence of law enforcement in historically disenfranchised communities. With respect to the third inference, a BIPOC person may experience consciousness of guilt not from the crime charged but from the fact that their very identity is perceived as synonymous with crime. Finally, BIPOC persons are wrongfully convicted at significantly higher rates compared to their white counterparts. 

Montana does not explicitly follow the four-step inquiry in Myers. There seem to be few, if any, restrictions on the admissibility of flight evidence in our State. Flight or concealment is admissible and may be considered by the jury to prove consciousness of guilt. State v. Walker, 148 Mont. 216, 224, 419 P.2d 300, 305 (1966). The only limitation in Montana is that the court itself cannot comment on evidence of flight during trial. This was not always the case. Until 1999, Montana had a pattern jury instruction on flight evidence. It stated, in part: 

If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing, or tending to show, flight by the defendant. This testimony may be considered by the jury as a circumstance tending to prove consciousness of guilt, but it is not sufficient of itself to prove guilt. 

See State v. Stiffarm, 2003 MT 70, ¶ 10, 314 Mont. 499, 67 P.3d 249.

In State v. Hall, the Montana Supreme Court did away with jury instructions on flight. The Court observed that such instructions constitute an improper comment on the evidence by the trial court. State v. Hall, 1999 MT 297, ¶¶ 45-46, 297 Mont. 111, 991 P.2d 929. Attorneys, however, can still introduce evidence of flight. 

Several solutions to the problem of flight evidence have been proposed. First, a well informed 403 analysis could work to mitigate the disparate effects of flight evidence. Federal Rule of Evidence 403, as its Montana counterpart, bars the admission of relevant evidence when its probative value is substantially outweighed by, among other things, unfair prejudice. As one author puts it, “the low probative value of [BIPOC] flight is substantially outweighed by the danger of racialized white normative views that only the guilty run from the police[.]” Jasmine B. Gonzales Rose, Toward a Critical Race Theory of Evidence, 101 Minn. L. Rev. 2243, 2286-87 (2017). A second proposed solution is for courts to take “judicial notice” of racism and police brutality and instruct the jury accordingly. In other words, judges can take judicial notice of the fact that “members of [BIPOC] communities have reasonable fear of police brutality that generates a valid, alternative reason for flight.” Danielle Sandhu, A Reasonable Alternative to Guilt: Flight and AntiBlack Racism, 42 W.R.L.S.I. 51, 81-82 (2021). These solutions would allow us to retain what is intuitive about flight evidence while also recognizing the inherent whiteness of the rule.  

These solutions only work if courts accept the implications of systemic racism. In order to get to the “unfairly prejudicial” effect of flight evidence, one has to acknowledge that there is a problem with it in the first place. This might be a tough ask of our current white normative legal system. 

L. Moose

Moving Forward: A Resource Guide for Students

Fellow members of the University of Montana School of Law community,

The Criminal Injustice System and the greater UM ACLU chapter always strive to foster a safe and inclusive place for every member of our community. Those involved with this blog recognize the courage it takes to come forward as a survivor of sexual or domestic violence. It is never valid to question the truthfulness of survivors or the accuracy of their reports, comprehension, and memories. Minimizing a survivor’s experience in any capacity is abominable. 

It is my sincere hope that our school can take this opportunity to move in a positive direction. I admire the tenacity that our student body has demonstrated through this difficult situation. I am impressed by the compassion, integrity, and empathy exhibited by you all. 

Please find below a list of resources in Missoula for survivors of sexual and domestic violence. Please also find resources for anyone struggling with their mental and emotional health. 

On Campus Resources for Survivors: 

University of Montana Student Advocacy Resource Center:

The Student Advocacy Resource Center (SARC) is a confidential and free service offered by UM. SARC respects the autonomy of survivors and offers referrals, connections, and advocacy based on your decisions. SARC has tailored services for survivors.

Main Office: SARC is open between 9:00 a.m.-4:00 p.m., Monday through Friday. They may be reached by phone—(406) 243.4429; email—sarc@mso.umt.edu; in-person—Curry Health Center, rm. 108; or Zoom by request. 

Walk-In Hours: No appointment is necessary from 9:00 a.m.-11:00 a.m. or 2:00 p.m.-4:00 p.m., Monday through Friday. 

Emergency Services. SARC offers 24-hr clinician support via their crisis line (406) 243.6559. 

Curry Health Center

Curry Health Center is another resource at UM. In addition to helping survivors get connected with resources, Curry offers a free initial consultation followed by up to 12 individual sessions for $25 a session in an academic school year. Curry has free group therapy sessions. Meeting with Curry Counseling 

Main Office: Curry is open between 8:00 a.m.-5:00 p.m., Monday through Friday. To schedule an appointment you may call—(406) 243.4712; schedule on-line—Student Health Portall; or email—contactcurry@mso.umt.edu. Curry’s counseling services are located in the Curry Health Center, rm. 076. Wait times for initial consultations are currently between one and four weeks. You may directly contact the Counseling Services if you are experiencing a crisis during business hours. Curry does not accept Medicare, Medicaid, or TriCare. 

University of Montana Title IX:

Title IX coordinates UM’s response to reported sexual harassment, stalking, sexual assault, relationship violence, retaliation, and other forms of sex-based discrimination. You can find a flowchart of the Title IX reporting and initial support process here. It is available in accessible text here. You may file your own Title IX report or someone may file it on your behalf. Please note that employees of the law school are mandatory reporters. This includes the TAs and JPs. 

Main Office: You can reach Title IX by phone—(406) 243.5710 or email—eoaa@umontana.edu. You can also file a report here.

Other Community Resources for Survivors:

Missoula YWCA

The YWCA focuses on moving women and families out of crisis. It also offers programs that focus on long-term independence. The YWCA offers help to people who are concerned for their safety and/or housing insecure.

Main Office: Walk-in appointments are welcome between 12:00 p.m. and 4:00 p.m., Monday through Friday. Every Tuesday there is a support group at 6:15 p.m. for survivors of abuse and interpersonal violence. The YWCA is located at 1800 South 3rd St. West. The main line is (406) 543.6691. 

Emergency Services: You can call the YWCA’s crisis line at either (406) 542.1944 or (800) 483.7858. Crisis line staff will provide immediate and confidential support. If you are in need of immediate shelter due to your situation, the YWCA has a domestic violence shelter that offers immediate protection. The YWCA will work with you to find stable housing and will connect you with other resources.

First STEP Resource Center:

First STEP provides medical care, advocacy and assistance, and evidence collection for people affected by sexual violence. Medical care is available even if a survivor does not want to proceed with evidence collection. While at First STEP, survivors are offered a victim advocate. This advocate can connect you with further medical and counseling resources, as well as assist you with reporting to law enforcement if you so choose. No report to law enforcement is required to access services. First STEP is located at Providence St. Patrick’s Hospital. 

Main line: (406) 329.5776 this is a 24-hr. line. 

Missoula County Attorney’s Office

Oversees the prosecution of all felonies in Missoula County and a portion of misdemeanors. 

Phone: 406-258-4737; Address: 200 W. Broadway St., Missoula, MT, 59802; Email: countyattorney@missoulacounty.us 

Crime Victim Advocate Program:

The CVA provides confidential and free assistance to survivors of sexual and domestic violence who are pursuing criminal charges. They can connect you with crisis counseling, emotional support, and guidance on the criminal proceedings. They can also assist you with filing an order of protection and help prepare you for an order of protection hearing. You do not need to consult the CVA to file an order of protection, you may find the form here along with a checklist/instructions for each court.

Main Office: The CVA can be contacted by phone—(406) 258.3830 or email—cva@missoulacounty.us. It is located at 317 Woody St., Missoula, mt 59802.

Missoula County Resource Page

You can find more resources offered by the County on the Missoula County Resource Page. 

Emergency Food and Housing

You can find more resources regarding emergency food and shelter in Missoula and the surrounding counties via the Human Resource Council. 

Mental Health & Substance Dependency Resources

Western Montana Mental Health

You can contact Western Montana Mental Health for a free confidential assessment. This resource also provides crisis stabilization, individual therapy, group therapy, and peer support groups. 

1321 Wyoming St, Missoula, MT  59801

Phone: (406) 532-8400  

Fax: (406) 356-5213 

Email: administration@wmmhc.org

Turning Point Outpatient Western Montana Addiction Services

You can contact Turning Point for comprehensive substance dependency treatment. 

1325 Wyoming Street

Missoula, MT 59808

Phone: (406) 532-9800

Curry Health Center 


L. Moose

No Human Being Can Be Illegal: Immigration in the United States

The most recent immigration controversy comes in the form of U.S. border patrol on horseback, whipping Haitian migrants as they crossed the Rio Grande in search of asylum. These graphic images evoke eerie similarities to the worst moments of our history. As we continue to progress, we often recognize the inhumanity of our predecessors’ behaviors, yet we continue to perpetuate these same injustices without thinking twice. Human beings should never be subjected to this type of treatment and no human being can be illegal. Using the term “illegal” in reference to migrant populations allows us to dehumanize immigrants and affords us the privilege of being unsympathetic to the immense trauma undocumented immigrants face.

The U.S. offers asylum to migrant individuals who can demonstrate a “well-founded fear of persecution or harm” in their home country based on race, religion, nationality, political opinion, or membership in a particular social group. This year alone, Haiti has suffered a deadly earthquake, the assassination of the country’s president, and the COVID-19 pandemic. The people of Haiti are suffering and need the U.S.’s help – not its persecution. There were 15,000 human beings, most of them of Haitian descent, camped along the Texas border town of Del Rio, desperate for their chance for asylum in the U.S. Instead, the Biden administration is deporting thousands of asylum-seekers under Title 42, a controversial Trump-era public health policy used to deport migrants and deny them the ability to apply for asylum. The Biden administration has defended the use of Title 42 as a measure to slow the spread of COVID; however, physicians and immigrant advocates say this justification is merely a pretext to remove migrants from the country quickly. When President Biden took office, he promised a more humane immigration system than the heinous policies of his predecessor. Unfortunately, the graphic images from the border show there is still major work to be done, and this administration is not willing to undertake it.

While the current border crisis in itself is incredibly disturbing, it merely continues the U.S.’s long history of problematic immigration policies. When looking at immigration policy through a systemic racism lens, it is wholly unsurprising that today’s undocumented immigrants, largely from BIPOC communites, are subjected to far harsher consequences than the white Europeans of the past for the exact same offense of unauthorized entry. The U.S. has always been considered a nation of immigrants, but the US has always treated immigrants differently based on their race. These racial classifications evidence a consistent preference for whites from northwestern Europe. The following overview is meant to illuminate some of the racially biased immigration policies but does not fully encompass the entirety of the U.S.’s history of immigration.

Soon after the U.S. established independence, the first Naturalization Act was passed in 1790. This Act allowed free white persons of good character to gain citizenship after having lived in the U.S. for only two years. In practice, only white, male property owners could naturalize, thus excluding women, nonwhite persons, indentured servants, and enslaved persons from naturalizing. As the U.S. continued to grow by stealing Indigenous territories and expanding westward, immigration policies were modified to promote white settlement of the new territories. From 1800-1850, the majority of immigrants coming to the U.S. were of Irish, German, and British origin. By 1860, Chinese immigrants had begun to migrate to the West Coast and made up a significant portion of California’s population. In response, the U.S. passed the Chinese Exclusion Act of 1882, suspending all immigration from China. Concurrent with this Chinese exclusion, the U.S. actively solicited European immigrants through the Homestead Act of 1862.

The Industrial Evolution of the late 1800s through the early 1900s brought enormous growth in immigration. The majority of these immigrants were from Southern and Eastern Europe, but large numbers were non-European immigrants, leading to an increase in anti-immigration reactions and xenophobia. Congress began proposing immigration controls, and a lengthy study of the “immigrant question” was done in 1911. This study differentiated between “desirable” and “undesirable” immigrants, based entirely upon ethnicity, race, and religion. Drawing on eugenics’ beliefs in racial hierarchies, the study recommended literacy tests as a means to reduce immigrant numbers by turning away “low quality” persons. A federal quota system was implemented in 1921 that severely restricted the number of people from outside Western Europe eligible to settle in the U.S. The following decades through the mid 1940’s brought an increase in immigration restrictions and ended the era of mass immigration in the U.S. However, the end of World War II brought complications to the restrictive U.S. immigration policies due to the unprecedented refugee and displaced persons crisis. In response, the U.S. created the nation’s first formal refugee and asylum policies under the Displaced Persons Act of 1948. This Act was met with immediate controversy. Upon signing the bill into law, President Truman stated that it formed “a pattern of discrimination and intolerance wholly inconsistent with the American sense of justice. The bill discriminates in callous fashion against displaced persons of the Jewish faith.” After over 40 years, the discriminatory quota system implemented in 1921 came to an end in 1965 with the passage of the Immigration and Nationality Act. This Act created a preference system which was not defined by race, sex, gender, ancestry, or national origin and centered on family reunification, asylum, and safe harbor of refugees. The preference system has been criticized as implementing unfair immigration quotas but is still present in today’s immigration policies.

As people fled their unstable and war-torn countries, seeking entry into the U.S. between the 1960s and 1990s, refugees remained at the forefront of immigration debate. A variety of Acts were instituted across this time period to address “illegal” immigration, each furthering the ongoing theme of increased funding for border control and denial of state and federal services for undocumented immigrants. Following the terror attacks of 9/11, the total number of immigrants dropped – a direct result of percieved vulnerabilities in the US and the passage of the Patriot Act. This Act unfairly targeted minority and immigrant communites with its surveillance and enforcement efforts in the war on terrorism. Specifically, the creation of a “special registration” program required tens of thousands of Arab and Muslim immigrants to submit to a call-in interview from which other immigrants were exempted.

Most recently, under the Trump administration, the racist and xenophobic “America First” program was created. The program’s implementation led to stricter standards for legal immigration applicants under the guise of protecting American workers and industries. The immigration policies under Trump centered around eight areas: restricting legal immigration; completing the border wall with Mexico; reducing the number of asylum seekers; stopping immigrants from receiving benefits; ending the DACA program and deporting its recipients; restricting travel and visas from certain countries; reducing the number of refugees; and modifying the H-1B visa program. These immigration policies and orders exacerbated an already dysfunctional immigration system, tantamount with the most oppressive periods of US history. Although the Trump administration did not invent racist and xenophobic policies and practices, it did actively work to bring these policies back to the forefront of U.S. immigration.

K. Hafer

Additional Reading:

The U.S. Helped Destabilize Haiti Then Rejects Refugees (refinery29.com)

Haitians see history of racist policies in migrant treatment – ABC News (go.com)

I’m a White Immigrant. I Benefited From Racist Visa Lottery | Time

No Human Being is Illegal — Border Crossing Law Firm