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Native women are subjected to the highest rates of sexual assault, domestic violence, and murder of any demographic in the United States. Over half of American Indian and Alaska Native women will experience sexual violence and/or domestic violence in their lifetime, and Native women face a murder rate ten times higher than the national average. Five thousand, seven hundred twelve Native women are reported missing as of 2018. Further examination of these horrifying statistics reveals that the overwhelming majority (at least 70%) of violence against Native women comes from non-Indian perpetrators. An estimated 90% of Native women who experience sexual violence are harmed by an interracial perpetrator. Though these statistics are heartbreaking enough as is, advocates in Indian country claim these estimates are lower than the actual rates of sexual assault against Native women. Despite the apparent evidence of an epidemic of violence in Indian Country, thanks to a gap in criminal jurisdiction, many of these crimes go unpunished.

In 1978, the Supreme Court decided that Indian tribal courts cannot assert criminal jurisdictional authority over non-Indians – regardless of the non-Indian person’s connections to the tribe and/or the reservation. Generally, to successfully assert criminal tribal jurisdiction one must consider a three part analysis: 1) the location of the crime 2) the Indian status of both the perpetrator and victim 3) the type of crime under investigation. 

As to the first prong – tribal criminal jurisdiction can only be considered if the crime itself took place in Indian country. Next, the official Indian status of the parties involved dictates jurisdiction. For the tribe to successfully assert criminal jurisdiction, the perpetrator must have official Indian status, either as an enrolled member of a federally recognized tribe or through direct federal recognition. This itself raises concerns because Indian status is not a precise test, tribes do not all follow the same method of recognizing membership. When both parties are recognized Indians, tribal courts have exclusive criminal jurisdiction over misdemeanor crimes. If the crime falls within the Major Crimes Act (MCA), even if all parties are Indian, the federal government may assert criminal jurisdiction. If both parties are not Indian, and the victim is a non-Indian, generally there is concurrent jurisdiction between the federal government and the tribe. However, if a non-Indian perpetrator acts against an Indian victim, there is no tribal jurisdiction. Save a select few exceptions within the Violence Against Women Reauthorization Act of 2013 (VAWA), the tribe cannot prosecute a non-Indian perpetrator, even if the crime occurs within Indian country against an Indian victim. The final consideration is the classification of the criminal activity. The federal government may assert jurisdiction over crimes within the MCA. VAWA allows tribes to prosecute non-Indian crimes of domestic violence, violence against a partner, or violation of a restraining order if the violence occurred against an Indian within Indian country. 

Federal Indian law cases and statutes have significantly convoluted the relationship between federal, state, and tribal jurisdiction. This confusion makes prosecutions within Indian country difficult. Consequently, an overwhelming number of cases with Native women victims go unprosecuted. Generally, tribes do not have the option to prosecute non-Indian perpetrators of interracial sexual assaults, and often the federal government fails to step in. U.S. Attorneys fail to prosecute 67% of cases within their jurisdiction involving Native women victims. 

VAWA acts as a perfunctory plug for this hole in jurisdiction that non-Indian perpetrators often escape through. Systematic failure on the part of the federal government to investigate and prosecute criminal cases led to VAWA’s recognition of tribal authority to exercise limited criminal jurisdiction over non-Indian perpetrators when an Indian within Indian Country is a victim of domestic violence, dating violence, or violation of a protective order.  Since VAWA does not grant the tribe recourse for sexual assaults outside of these narrow definitions, it fails to address a significant jurisdictional loophole when the non-Indian perpetrator cannot be classified as an “intimate partner.” 

Additionally, VAWA addresses only the limited prosecutorial rights of the tribe. It does not clarify any right of tribal authority to investigate, detain, or remove a potential threat. This generates a problem when it comes to responding to allegations of domestic violence and who has the authority to do any preliminary investigations. Limited law enforcement resources in Indian country also perpetuates this issue.

The ideal answer to alleviating this crisis in Indian country would be to recognize tribal criminal jurisdiction under the same analysis as state criminal jurisdiction. Unfortunately, due to a long history of dictating otherwise, the federal government has set up a system that would result in an exponential financial burden on tribes if changed. Unless the federal government is willing to both recognize an extension of tribal criminal jurisdiction and provide resources during this transfer of authority to increase law enforcement and the reach of tribal courts, there is the potential that even more violent crimes would go unprosecuted. 

The inordinate amount of violent crimes against women in Indian country is a direct result of colonization and the continued limitation of tribal sovereignty. This is a crisis that both deserves and demands our attention so we might all work towards solutions that ensure the safety of Native people. 

– L. Moose

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Further Sources

Tribal Criminal Jurisdiction

Adam Crepelle, Tribal Courts, the Violence Against Women Act, and Supplemental Jurisdiction: Expanding Tribal Court Jurisdiction to Improve Public Safety in Indian Country, 81 Mont. L. Rev. 59 (2020). (available on Westlaw)

Alison Burton, What About the Children? Extending Tribal Criminal Jurisdiction to Crimes Against Children, 52 HAR. CIV. RIGHTS-CIV. LIBS. L. REV. 193, 195 (2017). (available on Westlaw)

Statutes

Hanna’s Act

Savanna’s Act

MMIW

Kind Hearted Woman: Two part series

The Tragedy of Missing and Murdered Indigenous Women

Inadequate Data on Missing, Murdered Indigenous Women and Girls

Missing and Murdered Indigenous Women of Montana

Blackfeet Community College Website Offers Local, Anonymous Missing Persons Reporting

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Introduction

This article continues the qualified immunity discussion from October 30th by examining the ‘clearly established’ prong of qualified immunity against a use of force case. Overall, the clearly established prong suffocates public official liability for injured parties seeking redress under 42 U.S.C. § 1983. The United States Supreme Court (“the Court”) should adopt Lee v. Ferraro.[1] The adopted holding would allow plaintiffs to assert a narrow exception that a right is ‘clearly established’ by showing that a public official’s conduct, which so obviously violates the constitution, prior case law is unnecessary. 

Case at Bar

Consider the following: On June 24, 2010, Ferndale Police Officer Kenneth Jaklic stopped Laszlo Latits for turning the wrong way on a divided boulevard. [2] Jaklic approached the car with a flashlight. About eight seconds later, Jaklic withdrew his gun. The police officer testified that he saw bags in the car and thought they contained drugs. The dashboard camera shows the officer shining his flashlight into the car and raising his gun to Latits’s head at point-blank range. Latits then drove away, and the police pursued. Next, Officer Jaklic moved his car slowly into Latits’s car path in a parking lot. Dashcam shows Latits steering away from Jacklic to avoid colliding. Jaklic then broadcast that Latits “tried to ram my vehicle.” Another sought clarification as to whether Latits rammed the patrol car. Jaklic responded: “He tried to.” At his deposition, Officer Jaklic admitted that Latits steered away to avoid hitting his patrol car.[3]

The district court believed a reasonable jury could confirm via dashcam video that another officer, Lowell Phillips, knew Jaklic’s statement was false. Latits then fled the parking lot. No pedestrians or other cars are visible from the footage. After, Officer Andrew Wurm struck Latits’s vehicle twice while on the highway. An officer is heard from video footage stating that Latits rammed them several times. However, the dashcam video proves Latits did not ram any patrol cars.[4] Phillips then repeatedly rammed Latits’s car—in violation of department policy and a direct order not to use this maneuver—and eventually drove Latits off the road. Phillips then jumped out of his car, ran toward Latits, and shot him three times in the chest, killing him. Seven shell casings were recovered from the scene matching Officer Phillips’s gun. Dashcam from four patrol cars shows Phillips was not endangered. Ferndale Police Department subsequently terminated Phillips for this conduct.[5]

The plaintiff sued under 42 U.S.C. § 1983, alleging that Phillips violated Latits’s clearly established Fourth Amendment rights by using deadly force to terminate the chase. The Sixth Circuit held that Phillips’s use of deadly force on fleeing Latits was objectively unreasonable and violated the Fourth Amendment. Still, Officer Phillips is entitled to qualified immunity because case law was not clearly established.

42 U.S.C. § 1983

Section 1983 provides a civil remedy for a plaintiff who has suffered a constitutional violation at the hands of state or local officials acting under color of law.

Qualified Immunity

The doctrine of qualified immunity protects police officers from liability for civil damages afforded in § 1983 unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right and (2) that the right was clearly established at the time of the challenged conduct.[6] Courts may consider those two inquiries in either order.[7] As to public policy, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.[8] Qualified immunity seeks to balance two interests: (1) the need to hold officials accountable when they exercise power irresponsibly and (2) the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.[9]

Use of Force

In Tennessee v. Garner, the Court held that where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force.[10] Under the Sixth Circuit, deadly force is justified against “a driver who objectively appears ready to drive into an officer or bystander with his car,” but generally not “once the car moves away, leaving the officer and bystanders in a position of safety,” unless “the officer’s prior interactions with the driver suggest that the driver will continue to endanger others with his car.”[15]

In Graham v. Connor, the Court held that the excessive force inquiry “requires careful attention to the facts and circumstances of each particular case.” The probe evaluates “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[11] Under use of force, ‘reasonableness’ considers the officer’s on-the-spot judgment and avoids “20/20 hindsight vision.”[12] The “calculus of reasonableness” contemplates an officer’s split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary for a particular situation.”[13] Though rapid evolvement does not, by itself, permit officers to use deadly force; rather, qualified immunity is available in the face of serious physical threats to themselves and others.[14]

Clearly Established Gone Wrong

Meaning

A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what she is doing violates that right.[16] In Justice Sotomayor’s words, qualified immunity “renders the protections” of the Constitution “hollow.”[17] The Court’s definition of “clearly established” law has narrowed significantly over three decades. Historically, a plaintiff could defeat qualified immunity by showing an obvious constitutional violation. However, the Court’s subsequent decisions have required that plaintiffs point to “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority.”[18] Recent decisions show the Court suggesting that only their decisions can clearly establish the law.[19] This prevents lower federal courts from clearly establishing law and leaves citizens relying on the Court to set new clearly established case law.

Orderless Analysis

In 2009, Pearson v. Callahan, the Court held that lower courts could grant qualified immunity without first ruling on the constitutionality of a public official’s behavior.[20] This maneuver prevents courts from analyzing the constitutionality of a public official’s conduct and simply relying on the lack of case law supporting a denial of qualified immunity. If constitutional violations are not analyzed, the law is never clearly established. Thus, rendering the Constitution “hollow.” For Latits, the circuit court analyzed the constitutional prong because the case involved a Graham analysis (discussed below). Importantly, not all qualified immunity cases involve use of force. Thus, the order of analysis matters, but cases often fail under the second prong.

Lee v. Ferraro

By adopting, Lee v. Ferraro, Latits’s wife, as the plaintiff, could assert that Latits’s Fourth Amendment right against deadly force is ‘clearly established’ by showing that Phillips’s conduct so obviously violated the constitution prior case law is unnecessary.[21] Phillips testified that after colliding with Officer Jaklic’s car, Latits looked directly back at him, revved his engine, and moved the car towards Phillips, at which time Phillips fired his weapon—7 times—killing Latits. However, video evidence contradicts this testimony. Also, Jaklic falsely informed officers that Latits tried to ram his patrol car, confirmed by his deposition testimony and dashcam video. Dashcam video provides no evidence that Latits reversed his car or tried to hit Phillips or any other officer or bystander, leaving the officer and bystanders in a position of safety.

Graham Factors

First, Officer Phillips knew from Officer Jaklic’s broadcast that Latits was suspected of possessing narcotics—a nonviolent crime. Second, Phillips (1) saw Latits steer away from Jaklic’s car, (2) knew Latits never rammed Officer Wurm’s car, (3) violated department policy by passing Wurm and Jaklic in pursuit, (4) observed only one parked car with no bystanders around throughout the chase, and (5) rammed Latits off the road after Latits straightened his car from Wurm’s collision—also in violation of department policy and a direct order. Finally, it is undisputed that Latits was fleeing to avoid arrest. These factors are non-exclusive.

In considering due deference to the officers, here, Officer Phillips’s life was never in imminent danger, and, under the objective analysis of Latits’s slow near collision with Officer Jaklic’s car, no other officer’s life was endangered in the moments before Phillips fired shots into Latits. Thus, considering the totality of the circumstances in the light most favorable to the Plaintiff, Latits did not present an imminent or ongoing danger. Therefore, the shooting was not objectively reasonable. Like the court, Officer Phillip’s use of deadly force was objectively unreasonable and in violation of Latits’s constitutional rights. The policy violations are immaterial when determining constitutionality, but go toward qualified immunity’s reasonableness.

Conclusion

In sum, Officer Phillips violated Latits’s Fourth Amendment rights. Under Lee v. Ferraro, the law is clearly established because Phillips’s conduct so obviously violated the Fourth Amendment that the conduct’s unlawfulness was readily apparent to the official, notwithstanding the lack of case law. Additionally, Phillips is incompetent because he violated department policy twice and a direct order, by passing other officers in the chase and providing false testimony proved by contradicting dashcam video. Phillips knowingly violated Latits’s constitutional rights by shooting Latits in the chest three times for a nonviolent offense. Phillips was held accountable for exercising his power irresponsibly because he was terminated but escaped liability because the Court’s definition of clearly established. Therefore, Phillips should be denied qualified immunity under Lee v. Ferraro. Doing so will increase clearly established case law, “protect all but the plainly incompetent or those who knowingly violate the law,” and place § 1983 claims closer to its original intent.

– D. Horton

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[1] 284 F.3d 1188, 1199 (11^th Cir. 2002).

[2] Latits v. Phillips, 878 F.3d 541, 545 (6th Cir. 2017)

[3] Id. at 545.

[4] Id.

[5] Id., at 546. Ferndale Chief of Police cited the following violations: Phillips engaged as the third police car without permission, passed the secondary and primary vehicles, used a PIT maneuver in violation of a direct order, and approached Latits’s car instead of taking a tactical position using his vehicle as cover.

[6] Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (U.S. Attorney General Ashcroft granted qualified immunity for his involvement in the detention of a Muslim U.S. citizen after the 9/11 attacks). See also Elliot-Park v. Manglona, 592 F.3d 1003, 1006 (9th Cir. 2010) (stating police are entitled to qualified immunity).

[7] Pearson v. Callahan, 555 U.S. 223, 236 (2009).

[8] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[9] Pearson v. Callahan, 555 U.S. 223, 231 (2009), overruled in part on other grounds by Pearson, 555 U.S. at 236.

[10] Tennessee v. Garner, 471 U.S. 1, 11 (1985). See also Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 2006) (stating that a person has a “right not to be shot unless they are perceived as posing a threat to officers or others”).

[11] 490 U. S. 386, 396 (1989).

[12] Id.

[13] Id., at 397.

[14] Mullins v. Cyranek, 805 F.3d 760, 766-67 (6th Cir. 2015).

[15] Smith v. Cupp, 430 F.3d 766, 775 (6th Cir. 2005).

[16] Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (Sotomayor, J., dissenting)

[17] Id. at 316.

[18] Wilson v. Layne, 526 U.S. 603, 617 (1999).

[19] See Kit Kinports, The Supreme Court’s Quiet Expansion of Qualified Immunity, 100 MINN. L. REV. HEADNOTES 62, 70–71 (2016) (describing this shift in the Supreme Court’s qualified immunity decisions in recent years).

[20] Pearson, 555 U.S. at 223–24.

[21] 284 F.3d 1188, 1199 (11^th Cir. 2002).

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Consider the following: Dr. Patch Adams, a medical doctor in Texas, whose constitutional rights were violated, but received no redress. While Dr. Adams was out of office, Texas Medical Board officials (“Officials”) attempted to execute an administrative search subpoena. Officials approached Dr. Adams’ receptionist and demanded they search the medical offices. Officials even threatened to take Dr. Adams’ medical license if unpermitted to search. One went as far as following a doctor to a back office for search inquiries. The Drug Enforcement Agency was investigating Dr. Adams for suspected pain killer violations which subjected Dr. Adams to administrative hearings by Texas’ Administrative Hearings Office (“AHO”). However, AHO violated their administrative rules when issuing the search subpoena because Dr. Adams received no subpoena hearing or prior notice of the search. 

Accordingly, Dr. Adams sued Officials for violating his constitutional rights to prevent future similar violations. Specifically, unreasonable search under the Fourth Amendment. Well, Dr. Adams lost.[1] The U.S. Fifth Circuit Court of Appeals held that the administrative search was unconstitutional, and that the Officials’ unlawful conduct was a reasonable mistake because no law or previous case clearly established that their administrative search violated Dr. Adams’ constitutional rights.[2] Here, Dr. Patch Adams’ only laughter is the kind that leads to crying; “say it ain’t so doc.” Forgive my frivolity. Can an American citizen sue the State or a public official? Section 1983 (42 U.S.C. § 1983) allows persons in the U.S. to bring a civil action against a State or public official. However, public officials often escape liability through qualified immunity.

42 U.S.C. § 1983 History and Meaning

Section 1983 provides a civil remedy for a plaintiff who has suffered a constitutional violation at the hands of state or local officials acting under color of law. Originally, as part of the Civil Rights Act of 1871[3]—formerly the Ku Klux Klan Act of 1871—the Act sought to enforce Fourteenth Amendment provisions. The bill intended to protect recently freed African Americans and Republican lawmakers against the “Klan’s reign of terror” across the south.[4] The American terror perpetrated by the Klan included whipping, threatening, and murdering Blacks, southern Whites, and State officials who disagreed with the Klan. [5] Markedly, klansmen prohibited both Black and White anti-klan Republicans from voting in elections.[6] Senator Oliver P. Morton of Indiana asserted that  “klansmen systematically perjured themselves in court, infiltrated juries, and intimidated law enforcement and judges” to acquit fellow klansmen.[7] Democrats at the time claimed that evidence implicating the Klan was unreliable hearsay and rumors.[8] Overall, the law would pass and protect the rights of all citizens against state-sponsored unconstitutional conduct.[9]

Historically, § 1983 received bi-partisan support in 1871.[10] Yes, just years after the Civil War. Section 1983 was the only portion of the Enforcement Acts to receive bi-partisan support. Many legislatures were against criminal redressability, but believed that interference from the Federal Government was valid where the State clearly and persistently failed to protect U.S. citizens in their rights, privileges, or immunities.[11]  Representative William Roberts stated, “No Higher duty can exist than to protect its [citizens] . . . in their equal rights to life, liberty, and property. Be they white or black, they must have free speech, a free ballot, and a safe home.”[12] Failing to afford protection equally for all is to deny the same. Because a State may by positive enactment, suppress the right to vote, testify or seek redress in court. [13] The effect of such an enactment would reward the suppressor and treat the other as a nonentity. Thus, for the 42nd Congress, protecting citizen rights was a duty to be fulfilled regardless of the cost.[14]

Qualified Immunity

Then there was “good old” qualified immunity. Pun intended. Government officials performing discretionary functions are entitled to qualified immunity. Qualified immunity attaches when “an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[15] The reasonableness of the officer’s conduct is interpreted against the law at the time of the conduct.[16] Qualified immunity is meant to balance two interests: (1) the need to hold officials accountable when they exercise power irresponsibly and (2) the need to shield officials from harassment, distraction and liability when they perform their duties reasonably.[17] However, the doctrine’s effect diminishes a citizen’s right to a civil remedy under § 1983, as the Dr. Patch Adams example demonstrates.

The doctrine of qualified immunity protects government officials from liability for civil damages afforded in § 1983 unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.[18] Further, the Supreme Court held in Pearson v. Callahan that courts may decide which of qualified immunity’s two prongs should be addressed first. Here, the second prong ransacks § 1983 claims. Even if the violated right was clearly established at the time of the violation, it may be difficult for these officials to determine how the law will apply to their factual situation. Therefore, “if the official’s mistake as to legal requirements are reasonable then the official is entitled to qualified immunity.”[19] I’ll address the judicial discretionary prong arrangement in the next article. But can you see the ransacking of § 1983 claims, when applying prong two against any case facts? 

Qualified Immunity Case Example

Maybe here: On the morning of Nov. 23, 2004, Malaika Brooks was driving her 11-year-old son to school when Seattle police pulled her over for speeding. Believing she was wrongly pulled over, Brooks refused to sign the ticket thinking, mistakenly, that her signature was an admission of guilt. The officers threatened to throw her in jail, Brooks still refused, and a sergeant ordered her arrest. Refusal to sign a ticket is nonjailable.

To effectuate the arrest, one of the officers pulled out a Taser and asked her if she knew what it was. She didn’t, but told the officer she was seven months pregnant. In front of her, the officers discussed which part of her body they would tase. One stated, “well, don’t do it in her stomach,” the other stated, “do it in her thigh.” The officers twisted Brooks’s arm behind her back and tased her three separate times—first on her thigh, then in the arm, and then in the neck—before dragging her into the street, laying her face down, and cuffing her.

Brooks sued the officers under § 1983. Six federal judges agreed that the officers’ use of severe force absent any threat to their safety violated the U.S. Constitution. Ultimately, refusing to sign the ticket after traveling 32 miles per hour in a 20 miles per hour zone, was not a serious offense under the Graham factors. But those same judges dismissed her case, holding that her right was not clearly established to a reasonable officer in their position under the factual situation. In the U.S. Supreme Court’s own words, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Pause for reflection here. Importantly, Brooks was able to prevail over qualified immunity under her state law claims of negligence.

Conclusion (for now)

Qualified immunity, in part, is supposed to balance holding public officials accountable for exercising power irresponsibly and the need to shield officials from harassment, distraction, and liability for performing their duties reasonably. Constitutional violations like unreasonable searches and excessive use of force are not distractions and resulting lawsuits are not harassment, but actions requiring remedy for aggrieved citizens. Limiting or eliminating qualified immunity has received diverse support. Both the American Civil Liberties Union and Americans for Prosperity (a conservative and libertarian group by the Koch brothers) support this endeavor.[20] The Constitution provides no basis for qualified immunity, and, on its face, the language of § 1983 “admits of no immunities.[21] The common law that existed when Congress passed Section 1983 as part of the 1871 Ku Klux Act did not provide for the type of sweeping defense that qualified immunity has become.[22] Thus, qualified immunity shall be limited or eliminated. Until next time, peace and love. Please go vote.

– D. Horton

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Interested in Learning More? Consider taking Civil Rights Litigation with  Michelle Badaruddin & Melissa Hartigan. 

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[1] The narrative reflects the facts and holding of Zadeh v. Robinson, 928 F.3d 457 (5th Cir. 2019). Only the doctor’s name differs.

[2]   Id. at 468, 470 (emphasis added). 172

[3] Ch. 22, 17 Stat.13 (42nd Cong., 1st Sess.). See, also, Monroe v. Pape, 365 U.S. 167, -87 (1961).

[4] Virginia v. Black, 538 U.S. 343, 347, 123 S. Ct. 1536, 1541, 155 L.Ed.2d 535, 548 (2003).

[5] CONG. GLOBE, 42nd Cong., 1st Sess., 375, 436-40 (1871) (Rep. Clinton Cobb).

[6] 42 (1) Globe, 375, 441-51 (1871).

[7] 42 (1) Globe app. 251 (1871).

[8] Id. at 464-66 (Sen. Casserly, Stockton, and Thurman).

[9] Id. at 335, 374-76 (1871) (emphasis boldly added).

[10] Everette Swinney, Suppressing the Ku Klux Klan: The Enforcement of the Reconstruction Amendments, 1870-1877 (Ph.D. Dissertation, Univ. of Tex. at Austin, 1966), 154-79 (details the Enforcement Act debates of 1871).

[11] 42 (1) Globe, 375, 1st Sess., at 501.

[12] David Achtenberg, Legal Theory, Immunity Under 42 U.S.C. § 1983: Interpretive Approach and the Search for The Legislative Will, 86 Nw. U. L. REV. 497, 541 n. 323 (1992) (emphasis passionately added).

[13] CONG. GLOBE, 42nd Cong., 1st Sess., 459 (1871). (Rep. John Coburn, Indiana Republican and ex-judge relying on J. Marshall’s opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)).

[14] 42 (1) Globe, 375, 1st Sess., at 541-42.

[15] Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).

[16] Id. at 1152 (quotation marks and citation omitted).

[17] Pearson v. Callahan, 555 U.S. 223, 231 (2009), overruled in part on other grounds by Pearson, 555 U.S. at 236.

[18] Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (the U.S. Supreme Court granted U.S. Attorney General John D. Ashcroft qualified immunity for his involvement in the detention of a Muslim U.S. citizen after the 9/11 attacks).

[19] Saucier, 533 U.S. at 205; Kennedy, 439 F.3d at 1061.

[20] Various Amicus Curiae briefs this term illustrate this uncommon union of ideas.

[21] Id. at 36, nn. 74-80.

[22] Id.

Among graduate and professional students, 9.7% of women and 2.5% of men experience rape or sexual assault through physical force, violence, or incapacitation.

– David Cantor, Bonnie Fisher, Susan Chibnall, Reanna Townsend, et. al. Association of American Universities (AAU), Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (January 17, 2020).

Interested in Joining? Contact: Cierra Anderson cierra.anderson@umontana.edu

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Other Resources for UM Students:

Crime Victim Advocate (CVA) Program (406) 830-3830

Helps sexual assault victims understand options and obtain Temporary Orders of Protection*, provides information on crime victim’s compensation, and assists sexual assault victims through the judicial system, including checking on the status of individual cases. Crime Victim Advocates also helps victims of violent crime and stalking. (*A TOP is a court order signed by a judge that prohibits someone who scares you from coming to your house or workplace and from having any contact with you.)

Women Student victims are less likely to report.

Only 20% of women student victims, age 18-24, report to law enforcement.

32% of non-student women the same age do make a report.

Department of Justice, Office of Justice Programs, Bureau of Justice Statistics,  Rape and Sexual Victimization Among College-Aged Females, 1995-2013 (2014).

First STEP (406) 329-5776

A specially trained nurse or nurse practitioner will meet clients/assault victims at a private, safe clinic. First Step examiner will provide comprehensive medical assessment, evidence collection, lab tests and medication as needed, and education/information. First Step provides on-site access to community advocates and law enforcement as requested. DNA evidence may be collected up to five (5) days after a sexual assault but is most likely to yield positive results the sooner it is collected.

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Only 1 in 5 college-aged women survivors received assistance from a victim services agency.

https://www.rainn.org/statistics/campus-sexual-violence

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Student Advocacy Resource Center SARC

All services provided by SARC are Free and Confidential. Your communication with SARC is confidential. SARC services are comprehensive and they actively listen, believe in, assist, and support their clients. Based upon your decisions and choices, they also provide referrals and connections, within the justice, medical, and social service systems. Law enforcement, University administration, faculty, and/or family members will not be contacted by SARC unless you request them to do so. Additionally, you have the option of being anonymous in your interaction with SARC.

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Missoula County Attorney’s Office (406) 258-4737

The Missoula County Attorney’s Office reviews law enforcement investigations and decides whether or not to prosecute an alleged offender with a crime. This office charges a case when county prosecutors have probable cause and a reasonable probability of prevailing at trial; that is, when there is enough evidence to prove all elements of the crime(s) beyond a reasonable doubt to a unanimous jury. The prosecutors of the Missoula County Attorney’s Office answer questions about what to expect when a case is prosecuted, consult with victims of crime about plea agreements and trial strategy, and prepare victims and their supporters for testifying in court at evidentiary hearings, trials and sentencing hearings.

5.8% of students have experienced stalking since entering college.

https://www.rainn.org/statistics/campus-sexual-violence

UM’s Title IX Coordinator and Director of Equal Opportunity, Alicia Arant (406) 243-5617 

Arant addresses sex discrimination and holds perpetrators of sexual crimes accountable through a formal investigation process or an informal resolution involving training, mediation and accommodations. A Title IX investigation only results in University action, not legal consequences.

Victims are not victims, not some fragile, sorrowful aftermath. Victims are survivors, and survivors are going to be doing a hell of a lot more than surviving.

Chanel Miller, https://www.glamour.com/story/women-of-the-year-emily-doe

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“A person commits the offense of deliberate homicide if the person purposely or knowingly causes the death of another human being.” This – the first definition of deliberate homicide in the MCA – is what most people think of when charging a person with said crime. If convicted under the Montana statute, a person faces a number of possible sentences, the least of which is no less than a decade spent in state prison. That’s not a light sentence, but there’s also the much heavier possiblity that a conviction results in capital punishment. This high level of sentencing is not restricted to intentionally killing another person. The Montana statute has a second provision that the crime of deliberate homicide may also be satisfied by “felony murder.” If a person attempts to commit, commits, or is legally accountable for an attempted forcible felony and in the course of the felony (or “flight thereafter”) that person, or any person legally accountable for the felony, causes the death of another, they may be charged with deliberate homicide and subjected to the same level of sentencing as a person who set out with the intention to kill someone. For felony murder the mental state element is considered as to the underlying felony. It matters not whether the person possessed the requisite mental state to the victim’s death, only that the person intended to commit the forcible felony that was the catalyst of the result. At first blush that appears rather harsh. Further inspection does little to convince otherwise. 

Before examining the inequities in the justice system that ensue from felony murder charges and convictions, let’s briefly consider the origin of felony murder and its continuance in our modern system as an unfortunate relic of the United States’ adoption (and possible misinterpretation?) of early English common law. In the beginning, punishment for causing another’s death did not consider varying degrees of mental state. There were only two classifications of homicide – “justified” and “unjustified.” Mens rea was not a factor until the codification of “malice aforethought” (intent or premeditation) in the late 1300s. A requisite mental state significantly narrowed crimes from justified/unjustified, but these charges still read broadly. During this time, mental state was not qualified by the various standards we understand today. Also important to our understanding of felony murder is that early common law felonies were punishable by death. No statutory inclusion was necessary for felony murder, because a person was subject to the same punishment (death) if a person committed a felony or a murder when the appropriate mental state was met. As society’s definition of felony expanded beyond the few recognized by common law it also came to the conclusion that not every felony deserved the same level of sentencing as what an intentional homicide warranted. However, the law in the United States failed to cross reference that evolution when presented with a dead body. For the most part, it’s safe to say that the general populace agrees that one person legally accountable for another’s attempted forcible felony should not face  the same level of punishment as a person who successfully commits premeditated homicide. However, that’s exactly what happens with felony murder. For those of us who learn by example, Person A might be legally accountable for robbery because they drove the getaway car for their friend Person B. Person A purposely aided Person B in the “planning [and] commission” of the offense. Person A might never set foot in the building being robbed, but if Person B kills someone in the process Person A might now be held accountable for deliberate homicide. Even if Person B did not purposely or knowingly kill the victim. Since Person A had the requisite mental state for robbery, that may be stretched to a charge of deliberate homicide. If that leap elicits some confusion you are not alone. A considerable base of legal scholars address felony murder as “a lexicon of everything…wrong with a legal doctrine.” “Everything wrong” with this rule is not limited to the face of felony murder statutes –  the racist application of the law creates an additional layer of injustice. Felony murder is a prime example of issues with the justice system discussed in previous posts, namely prosecutorial discretion and disparities in sentencing, in action. 

Last year, an Illinois man shot and killed Jaquan Swopes, a Black child. Whether or not the man who killed Swopes was legally entitled to defense of his property took a backseat when the county prosecutor charged Swopes’ friends, also Black, with his death. Though eventually amended to lesser offenses, the group of friends he was with at the time of the alleged burglary were originally charged with felony murder (as adults) and each held on $1 million bail. The group of friends was in the man’s driveway at night, he came out of his house to yell at them to leave. He admits all but one moved towards their vehicle. He fired shots when one of the friends allegedly moved in his direction. Swopes was one of the group that moved to leave, he was 14 at the time of his death. Past posts have discussed prosecutorial discretion. Felony murder specifically reflects this issue. The attorney could have initially just prosecuted Swopes’ friends with attempted burglary. Instead he originally charged five Black teenagers as adults with a crime that carried a potential sentence equivalent to intentionally killing their friend. 

For the purpose of considering the possible consequences (convictions and sentencing) of prosecutorial discretion in regards to felony murder let’s return to our robbery example following Person A and Person B. Recall Person A never even steps foot in the building, they’re only responsible for the escape plan. Consider two separate scenarios. In scenario one Person A is white. In scenario two Person A is Black. In both scenarios let’s assume the person killed by Person B was white. A Black defendant is more likely to be charged with felony murder than white defendants, this statistic is further exacerbated if the victim was white. So in scenario one, the white defendant might only be held accountable for robbery, however the Black defendant in scenario two is more likely to find themselves charged with a murder they did not commit. 

To what extent are Black defendants more likely to face felony murder prosecutions? This is a difficult statistic to pin down to an exact number. Once convicted, our criminal system does not differentiate between who was convicted for actually killing someone and who was convicted under felony murder. What we do know is that Black people are five times more likely to face incarceration than white people. We also know that one in five people sentenced to prison for a minimum of ten years is a Black man who was incarcerated before he turned 25. Overall, Black defendants are more likely to face charges and convictions for crimes eligible for a capital punishment sentence. On top of this obvious disparity, an innocent Black person is seven times more likely to be falsely convicted of murder than an innocent white person. Although it is difficult to accurately measure the exact statistics of felony murder compared to traditional deliberate homicide by race, the surrounding information supports the conclusion that in accordance with the rest of the criminal justice system, Black defendants are disproportionately overrepresented in felony murder charges and convictions.

Felony murder is an outdated, unjust doctrine that the vast majority of states have solidified within their criminal code. As with much of the United States’ criminal system, felony murder provides the opportunity for racially disparate application with severe results. At every step of the process, starting with socioeconomic barriers to bail all the way through sentencing, Black defendants are subjected to the charge of felony murder at a harsher rate than white defendants. It is time for Montana, and other felony murder states, to rexeamine what qualifies as a deliberate homicide. 

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– L. Moose

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Further Readings

Tison v. Arizona, 481 U.S. 137 (1987). The Supreme Court case that held traditional deliberate homicide sentences could be considered proportional punishments for felony murder. Available on Westlaw.

Eric Henkel, Two Crimes for the Price of One: Reshaping Felony Homicide in State v. Russell, 71 Mont. L. Rev. 205 (2010). Goes deeper into felony murder specific to Montana. Available on Westlaw.

Joseph C. Mauro, Intentional Killing Without Intending to Kill: Knobe’s Theory As A Rational Limit on Felony Murder, 73 La. L. Rev. 1011 (2013). Suggests that transferring intent in felony murder may not be quite the leap this post considers it to be, if certain additional factors are considered. Available on Westlaw.

Mariko K. Shitama, Bringing Our Children Back from the Land of Nod: Why the Eighth Amendment Forbids Condemning Juveniles to Die in Prison for Accessorial Felony Murder, 65 Fla. L. Rev. 813 (2013). Considers felony murder convictions amongst youth. Available on Westlaw. 

The Injustice of Felony Murder: examines the two different theories of felony murder – proximate cause theory v. agency theory. Proximate cause gives rise to broader liability. 

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This week’s post is by Professor of Law and Director of the Lawyering Program at City University of New York School of Law, Eduardo Capulong. He is a past co-chair of the American Association of Law Schools Section on Clinical Legal Education. He has also served on the boards of the Montana ACLU, Society of American Law Teachers, National Lawyers Guild (San Francisco), International Endowment for Democracy, Center on Juvenile and Criminal Justice, and Asian American Legal Defense and Education Fund. But many know him as a Professor of Law and inaugural Associate Dean for Clinical and Experiential Education at the University of Montana. He returned to New York in 2019.

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No less than Columbus’ namesake founded U.S. legal education. Christopher Columbus Langdell devised the “case method”—the formalistic “science” of “discovering” law from appellate court opinions through the process of “legal reasoning.” As dean of Harvard Law School in the late nineteenth century, Langdell institutionalized the case method during the eras of Reconstruction, Redemption, and Jim Crow, cementing the cast of the modern legal curriculum in segregated law schools as newly-freed Blacks struggled for racial equality post-Emancipation. 

The case method remains the hallmark of law school. Today, as in Langdell’s time, “thinking like a lawyer” means analyzing the human condition “objectively” and “impartially”, from what Kimberle Crenshaw calls a “norm of perspectivelessness.” Now, as then, students study doctrine—contracts, property, torts, criminal law, and civil procedure in the first year—in technocratic fashion, shorn of the social struggles, politics, and values of which law is part and from which it issues. Now, as then, with neutrality, rationality, and adherence to precedent as virtues, law students learn little, if at all, about systemic racism and the foundational role of law and lawyering in its construction and perpetuation. Instead, the law school norm is white—as well as male, heterosexual, upper-class-identified, able-bodied, and politically conservative. Law students are schooled in myths of color-blindness and individual merit that simultaneously obscure race and exceptionalize racism into a system of individual rights and liabilities. Law school, in other words, remains a training ground for white supremacy.

Scholars—critical race theorists, in particular—have sought to overthrow this state-of-affairs for decades. Race, racism, and the law are mutually constitutive, they argue: we can’t understand one without the other. As Ian Haney Lopez put it, 

law not only constructs race, but race constructs law: racial conflicts distort the drafting and implementation of laws; skew the development, character and mission of legal bureaucracies; alter how various communities, including Whites, understand and interact with legal institutions; and twist the self-conception of legal actors, from lawmakers to lawyers, cops to judges.

Yet law schools have been impervious. Race and racism continue to be marginal to the core curriculum. When these issues arise, as they inevitably do, they are often deemed as irrelevant, indeed inimical to doctrinal rigor and a threat to doctrinal coverage. Whatever discussion may ensue is often superficial and mismanaged, in part because 8 of 10 full-time law professors are white and many of us are race-illiterate, ourselves the product of the Langdellian method. The last time legal education underwent a major transformation was during the civil rights movement, when law students’ demand for educational relevance led to the proliferation of clinical legal education. Where the Langdellian doctrinal curriculum is white-normative, clinical legal education today represents the opposite—literally. In schools across the country, law clinics represent immigrants, civil rights plaintiffs, and the disproportionate number of BIPOC people who are criminal defendants, among many others disfranchised by racism. 

The movement for Black lives offers a similar opportunity today. Law schools (and law firms) across the country have denounced anti-Black police violence and asserted opposition to systemic racism. We should follow up on that sentiment by examining our own role in the production and legitimation of white supremacy, securing a permanent place for the study of race and racism in the core curriculum, and developing lawyering practices to end them. Our own reckoning will succeed only if we teach law and lawyering as antiracist practice—as abolition and reparations as much as anti-Black violence, segregation and carceralism; as Native resistance as much as settler colonialism; as multiracial labor solidarity as much as racial capitalism; as self-determination as much as imperialism. Our students deserve no less. I’m proud to say that we are beginning to do this at my institution. Unanimous in our belief that Black Lives Matter, the entire CUNY Law School faculty and administration are undertaking concrete plenary efforts in this regard. We are also part of an all-New York City law school network pursuing similar goals and are holding a virtual conference to discuss these issues on July 9 and 10.

Race and racism are legal constructs. If law is an essential institution of a truly post-racial society, then law schools have a significant role to play in dismantling them and reconstructing genuine human equality. Langdell’s monument may not deserve the same fate as his namesake’s statues—antiracist lawyers still do need skills in legal reasoning to practice in existing institutions, after all. But it requires serious reexamination.

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Please note, this piece was originally published in Jurist earlier this year, and is republished with the permission of the Author, Eduardo Capulong.

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Annually, just shy of 20% of adults in the United States suffer from a mental illness.

Despite this overwhelming statistic, roughly half remain untreated. Several factors work together to stifle an appropriate response to these very real issues. Major obstacles to receiving necessary care include a perpetual stigma surrounding mental health, socioeconomic status, and race. 

An initial struggle when confronting mental illness is overcoming the social stigma. Our society does not provide the same safe place for mental healing as we do a physical injury. This is not a new issue. In Addington v. Texas, a case that considered due process in civil commitments, the Court found treatment for mental illness creates “adverse social consequences” for individuals. In Vitek v. Jones, the Court determined that “the stigmatizing consequences of…the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness” was a drastic enough consequence to require procedural protection. Of course adhering to due process is a good thing, but this precedent demonstrates society’s negative association with mental illness.

Social stigma affects everyone who seeks treatment for mental illness. A lower socioeconomic status adds an additional barrier to receiving necessary care. The Mental Health Parity and Addiction Equity Act (MHPAEA) requires insurers to provide access to mental illness or substance abuse treatment at a level not more restrictive than medical or surgical benefits. While this is progress, many people are still restricted by the socioeconomic barriers to accessing healthcare in general. Additionally, despite the mandates of the MHPAEA, there is still the problem of healthcare providers not accepting all insurance for mental health services.

White people receive better healthcare – mental or physical –  than Black, Indigenous, and People of Color (BIPOC) communities. Such is the case even when at issue are comparable health conditions provided for by similar insurance coverage. Despite being more likely to report symptoms of mental illness compared to white people, only 33% of Black adults in need are provided treatment for mental illness. Even if a non-white person is provided care, the vast majority (roughly 80%) of psychologists are white. This overwhelmingly dominant white perspective can lead to underestimating the effects of racism on BIPOC communities’ mental health, thus leading to a lower quality of treatment – or no treatment at all. 

What does this have to do with the criminal justice system? Our society’s failure to provide adequate care across the board – especially so for BIPOC and lower socioeconomic communities – contributes to the issue of mass incarceration. Without proper treatment, people with mental illnesses are more likely to end up incarcerated. Those imprisoned with a mental illness enter a vicious cycle where their mental health needs are not met, their condition worsens, upon release their criminal record makes it difficult to secure a job and permanent housing, many then become homeless and are often re-arrested. 

Dusky v. United States was a landmark decision in 1960 where the Supreme Court held that for a person to competently stand criminal trial they must have a “rational as well as factual understanding of the proceedings against [them].” Upon review, this case provides little protection for people with mental illnesses. In the United States, it is more likely for a seriously mentally ill individual to be incarcerated than hospitalized. In some cases, treatment is only ordered to provide “competency-restoration.” This allows the state to treat an individual up to the point they can appreciate the court proceedings. As as the individual is deemed “competent,” they are criminally charged. This process takes a detour when there is no room in the state hospital. Then the individual must be detained through the criminal system until space opens up for psychiatric treatment. This detainment occurs without a conviction and without a trial. Due to the inadequate treatment options in prison – when actually convicted – people with mental illnesses typically see their condition worsen, consequently they end up serving sentences significantly longer than people without a mental illness who might reduce their sentences through good behavior. 

How do we fix this system that so disproportionately harms people suffering from mental illness? Significant reform. We do not currently have appropriate methods of response to mental health or substance abuse crises. Usually, police are the first ones called. Since 2015, almost 25% of people killed by police suffered from a known mental illness. In March of this year, Daniel Prude, a Black man, was killed by police after they found him acting “irrationally.” Daniel was released from the hospital after suffering a mental crisis. Once home he ran away and his brother reported him missing. When police found him they pressed his head into the ground until he stopped breathing. He died a week later after his family took him off of life support. A person experiencing a mental health or substance abuse crisis is typically not able to comply with the demands of the police, nor are police officers trained to deal with mental health crises appropriately.

Mental illness is criminalized in the United States. Our society’s insufficient method of dealing with mental illness disparately impacts BIPOC communities who experience additional barriers to healthcare. The United States’ inappropriate response to the needs of those struggling with mental illness perpetuates the problem of mass incarceration. To help alleviate this issue we must consider a different societal approach to people with mental illnesses – particularly, when they commit a criminal offense. 

– L. Moose

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Further Reading:

Access to Mental Health Care and Incarceration

The Marshall Project – Mentally Ill Prisoners

Stephanie C. Stimpson, State v. Cowan: The Consequences of Montana’s Abolition of the Insanity Defense, 55 Mont. L. Rev. 503 (1994). Available on Westlaw

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“Readers will see how out-of-school suspensions disproportionately impact instruction for children of color and students with disabilities in each state.” “Nationally, school children lost over 11 million days of instruction (11,360,004) as a result of out-of-school suspension.” These are just a few of the quotes found in a 2019 ACLU report. The hits keep on coming when the same report notes “nationally, Black students lost 66 days of instruction compared to just 14 days for White students. This difference of 52 more days lost for Blacks than Whites means that Blacks lost nearly 5 times the amount of instruction as Whites.” In North Carolina, Native American Students lost 77 days per 100 enrolled. In New Hampshire it was Latino youth were most affected – losing 55 days of instruction per 100 enrolled.

Gone are the days of “Campus Cops” shaking their firsts as high school students go off campus for lunch to the forbidden Taco Bell. There are no more funny rom-com scenes, as found in “Ten Things I Hate About You” where a lovable, silly high school security officer chases the students while they profess love to one another. Rather, there are full fledged SRO (School Resource Officers) whom are often armed to help “keep the kids in line.”

But what are the real benefits to having these armed officers in school? Given the above statistics it certainly isn’t keeping the kids in the school. Looking to Montana we find that while Native American girls make up just 12% of the enrolled students – yet they were 62% of the arrests. Indeed, it would appear that our society holds having cops on campus as more important than school nurses – roughly 3 million students are on campus with cops, but no school nurses.

What are these youths doing that are worthy of criminal charges? Throwing a paper airplane, kicking a trashcan, and wearing sagging pants. In Virginia, a middle school student threw a baby carrot at her teacher, she was charged with assault and battery with a weapon.

Previous posts have outlined the issues with prosecutorial discretion. Often a prosecutor will choose to be more lenient when someone is a first time offender. But for some students, they have a record before even leaving high school – which doesn’t set them up for success, and certainly doesn’t inspire many prosecutors to be more lenient. Instead of ‘setting these kids up for success,’ we’re setting them up to fail.

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Suggested Readings

http://www.justicepolicy.org/news/8775

https://www.aclu.org/issues/juvenile-justice/school-prison-pipeline/bullies-blue

Click to access final_11-million-days_ucla_aclu.pdf

In a republic, voting is like the oil that keeps an engine running. Without it, engine parts are frustrated and overheated, eventually breaking down. So, the right to vote and voter participation is crucial. As U.S. history indicates, voting rights have a long and complicated history.

Brief History of Civil Rights Act 1965

The U.S. Constitution initially left it to states to establish qualifications for voting. For decades, state legislatures generally restricted voting to white males who owned property. In some states, only Christian men could vote. Thus, disenfranchising on the basis of sex, religion, and race, among others.

Foundationally, the Constitution and laws of the United States are “the supreme Law of the Land.” State law cannot supersede federal law. State laws that violate this rule are subject to later challenge under the Supremacy Clause.^[1] The Fifteenth Amendment was ratified in 1870. The amendment provides that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”^[2] However, voter suppression mechanisms like the poll tax and literacy tests prevented many African Americans from voting.

The 19th Amendment became the first amendment that assured women in the United States the right to vote. The amendment provides that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”^[3] In effect, African American and Latina women remained unable to vote because the amendment did not preclude voter suppression. The 24th Amendment, ratified in 1964, eliminated poll taxes. In Harper v. Va. State Bd. of Elections, a voter dilution case, the Court invalidated state poll tax legislation which disenfranchised the lower economic class’ right to vote. ^[4] The Court reasserted that once the federal government gives a right, it must be applied equally.”^[5] The 26th Amendment, ratified in 1971, lowered the voting age for all elections to 18. 

Ultimately, African Americans’ hard work and with the support of allies, led Congress to pass—and President Lyndon Johnson to sign—the Voting Rights Act in 1965. This legislation for many cemented the effect the 15th and 19th amendments were to accomplish. This included federal oversight of states with a history of voter suppression. Further, the Act provided legal redress for people deprived of their right to vote. The Voting Rights Act was momentous, extending suffrage to many Black, Latinx, and Indigenous Americans who had previously been subject to voter suppression.

In recent years, though, the country has taken steps backward in terms of voting rights. In 2013, the Supreme Court in Shelby County v. Holder, effectively withdrew key provisions of the Voting Rights Act.^[6] Thus, striking down its formula for determining which areas were subject to federal scrutiny and allowing those jurisdictions to pass laws restricting voting rights without seeking approval from the federal government. The Court rationalized that Congress failed to adjust § 4(b), the coverage formula, before extending the Act in 2006 and forced the Court to address the issue.^[7] For now, the permanent, nationwide ban on racial discrimination in voting that was found in § 2 of the Act remains in effect, and it issued no ruling on § 5, only on the coverage formula.^[8]

Convicted Felons and the Right to Vote

The Voting Rights Act of 1965 protects against racial discrimination. If you are over the age of 18 and a citizen of the United States you enjoy the right to vote–subject to a glaring caveat. People convicted of felonies can have this right revoked, in some instances permanently.^[9] While states vary on the severity of felony disenfranchisement regulations post confinement, all states–other than Maine and Vermont–restrict people convicted of felonies from voting during incarceration. As discussed in previous Criminal Injustice System posts, BIPOC communities are grossly overrepresented in the criminal justice system. Since BIPOC communities are disproportionately affected by mass incarceration, the Voting Rights Act of 1965 fails to sufficiently protect the right to vote amongst these communities. 

The Supreme Court case Richard v. Ramirez challenged the constitutionality of criminal disenfranchisement laws.^[10] Justice Rehnquist led the majority in an opinion that held that the 14th Amendment’s phrase “in rebellion or other crime” authorized states to restrict the voting rights of people convicted of felonies.^[11] This decision distinguished restricting fundamental rights of a person convicted of a felony from restricting the rights of any other citizen. The issue of racial discrimination perpetrated by this gap in equal protection was considered by the Court in Hunter v. Underwood.^[12] This case challenged an Alabama voting law. The Court found the law unconstitutional because the history and implications of the law supported a system of white supremacy.^[13] Though the Hunter decision should have set a strict scrutiny precedent for future considerations of felon voting rights, the Court instead demonstrates a preference of looking the other way when it comes to protecting the rights of convicted felons. 

As a result of racial disparities in felony convictions, 1 in 13 African Americans has lost their voting rights. Comparatively, only 1 in 56 non-Black voters have lost the right to vote. This aspect of the criminal system promotes suppression of the fundamental right to vote within BIPOC communities.

All things considered, vote this November 3, 2020. Many individuals, through their blood, sweat, and tears, fought for the equal right to vote. Your voice in the American political process is needed. No matter what political party you support, please go vote. The right to vote is too precious to ignore.

– D. Horton & L. Moose

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Voting Information Starter Links

1. Where do I go for Missoula’s voting information?

Answer: 

Notice is hereby given that on November 3, 2020 there will be a mail election held for the Federal General Election.

https://www.missoulacounty.us/government/administration/elections-office/ballot-voting-information/where-do-i-vote

• What do I do if I m not registered to vote?

Answer:

Voters NOT registered to vote, your information is not current with our office, or have an undeliverable mail ballot. You must appear at the Elections Center (140 N Russell St) thirty days before or on Election Day for voting services.

Source: https://www.missoulacounty.us/government/administration/elections-office/ballot-voting-information/where-do-i-vote

•  Where is my polling station?

Answer: FOR PRIMARY & FEDERAL GENERAL ELECTIONS ONLY: Find your polling place by visiting the Montana Secretary of State online:

https://www.missoulacounty.us/government/administration/elections-office/current-election

•  When does voter registration close?

Answer: October 26, 2020

https://www.missoulacounty.us/government/administration/elections-office/current-election

•  When are absentee ballots mailed out?

Answer: October 9, 2020

https://www.missoulacounty.us/government/administration/elections-office/current-election

•  Can I get my absentee ballot sooner?

Answer: October 2, 2020, is the earliest absentee ballots will be available.

https://www.missoulacounty.us/government/administration/elections-office/current-election

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^[1] See 1 Records of the Federal Convention of 1787, pp. 21, 164-168 (M. Farrand ed. 1911).

^[2] U.S. CONST. amend. XV, § 1.                                  

^[3] U.S. CONST. amend. XIX, § 1.

^[4] 383 U.S. 663, 666 (1966).

^[5] Id. at. 670.                                          

^[6] Shelby Cnty. v. Holder, 570 U.S. 529 (2013).

^[7] Id. at 559. (J. Thomas concurring).

^[8] Id. at 557.

^[9] See generally  U.S. CONST. amend. XIV, § 2 (criminal disenfranchisement laws are an exception to equal protection).

^[10] 418 U.S. 24 (1974).

^[11] Id. at 55. 

^[12] 471 U.S. 222 (1985). 

^[13] Id. at 222.

“They fought over ideology, respectfully, laughed lovingly about experiences shared, and let the audience see how two brilliant justices of different views could love each other despite those differences.”

– Nina Totenberg [ON RBG & SCALIA’S FRIENDSHIP]

NPR’s Nina Totenberg remembers Ruth Bader Ginsburg

 I would like to be remembered as someone who used whatever talent she had to do her work to the very best of her ability.

– RBG