NEW YORK CITY LAW REVIEW Edited by the Students of the City University of New York School of Law

A Journal of Law in the Service of Human Needs

City University of New York School of Law 65-21 Main Street Flushing, New York 11367-1358

Volume Thirteen Summer 2010 Number Two NEW YORK CITY LAW REVIEW Edited by the Students of the City University of New York School of Law

A Journal of Law in the Service of Human Needs

2009-2010 EDITORIAL BOARD

LAURA NIXON Editor-in-Chief

JONATHAN R JEREMIAS SHIRLEY LIN Managing Editor Managing Articles Editor

Eu FEDERMAN BRONYN HEUBACH HERA JAVED Executive Articles Editor Executive Articles Editor Executive Articles Editor

BRAD PARKER JANINE WONG LAURA Morr Associate Articles Editor Associate Managing Editor Associate Articles Editor

VIRGINIA WILBER GISELLE SCHUETZ lNSHA RAHMAN Notes & Comments Special Events Public Interest Practice Editor Editor Section Editor

BEENAAHMAD JONATHAN HARRIS Associate Notes & Comments Associate Public Interest Practice Editor Section Editor

Staff Members

HILLARY ALBERTS ALINA GRIGORYEVA EMILY REIGEL ALICIA ARMsTRONG KATHRYN HEFFRON YVETTE ROSARIO REKA BAIA ERIN HERRO PAULA z. SEGAL CHRISTOPHER BALUZ¥ ERIC KusHMAN SoPHIA SoLovvovA NATASHA BANNAN MATTHEW MAIN MAGGIE SPOSATO NATIVJ BHUSHAN RICARDO MARTINEZ KENDALL STAGG ANDREW BURTLESS LAURA MATTHEWS KATE SrnsMAN JOSHUA CARRIN BENJAMIN MEYERS JOHN TING JACQUELINE M. CAVALIERE MONA MOAYAD YORDANOS TESFAY CINDY CHEUNG SAYEDDA FATIMA NAQVI CESAR vARGAS PATRICK FOSTER TALIA PELEG JENNIFER WALLNER ADAM FRANCOEUR RAUL A. PINTO MARCY WEHLING

Volume Thirteen Summer 2010 Number Two NEW YORK CITY LAW REVIEW Edited by the Students of the City University of New York School of Law

A Journal of Law in the Service of Human Needs

CONTENTS

Remarks

Translating Equality: Language, Law and Poetry Kimiko Hahn, Jenny Rivera & Ruthann Robson 233

Whose Survival? Environmental Justice as a Civil Majora Carter, Rights Issue Miranda Massie, David Palmer, Elizabeth Yeampierre & Carmen Huertas-Noble 257

Notes Material Support and the First Amendment: Bradley A. Parker 291 Eliminating Terrorist Support by Punishing Those with No Intention to Support Terror?

A More Inclusive Democracy: Challenging Felon Paula Z. Segal 313 Jury Exclusion in New York

Public Interest Practice Section Maximizing Information's Freedom: The Nuts, Justin Cox 387 Bolts, and Levers of FOIA

Volume Thirteen Summer 2010 Number Two TRANSLATING EQUALI1Y: LANGUAGE, LAW AND POETRY

1 2 A conversation with Kimiko Hahn and jenny Rivera , moderated by Professor Ruthann Robson3 November 6, 2009

PROFESSOR RUTHANN ROBSON: This is our third annual inter­ disciplinary conversation, which pairs a distinguished CUNY pro­ fessor from outside the law school with a distinguished professor from our own law school. These conversations discuss social justice issues across disciplines. Our first conversation was between Ste­ phen Loffredo,4 who teaches Constitutional Structures and is direc­ tor of our Economic Justice Project, and Frances Fox Piven,5 who is

1 Kimiko Hahn is a poet and Distinguished Professor in the MFA Program in Creative Writing at Queens College, CUNY. She is the author of eight collected works of poetry, including The Unbearable Heart, which received an American Book Award, Earshot, which was awarded a Theodore Roethke Memorial Prize and an Association of Asian American Studies Award, and most recently, Toxic Flora. Her awards include a Pen/Voelcker award and a Guggenheim Fellowship. Hahn received an undergradu­ ate degree in English and East Asian studies from the University of Iowa, and a master's degree in Japanese literature from Columbia University in 1984. 2 Jenny Rivera is Professor of Law and Founder and Director of the Center on Latino and Latina Rights and Equality (CLORE) at CUNY School of Law. Professor Rivera received her A.B. in History from Princeton University and her J.D. from New York University School of Law. In 1993, Professor Rivera received her LL.M. from Columbia University School of Law, where she concentrated on Constitutional and Feminist theory. After graduating from NYU, Professor Rivera worked as a prose law clerk in the Second Circuit Court of Appeals. Professor Rivera then worked with the Homeless Family Rights Project of the Legal Aid Society. From 1988 to 1992, Profes­ sor Rivera was associate counsel for the Puerto Rican Legal Defense and Education Fund, where she worked on language rights and other issues. In 1993, Professor Ri­ vera clerked for then-District Court Judge Sonia Sotomayor. Professor Rivera has au­ thored several articles on civil and women's rights, including An Equal Protection Standard for National Origin Subclassifications: The Context that Matters, 82 WASH. L. R.Ev. 97 (2007), and The Violence Against Women Act and the Construction of Multiple Conscious­ ness in the Civil Rights and Feminist Movements, 4]. L. & PoL'v 463 (1996). Professor Rivera teaches administrative law, civil procedure, lawyering, property and courses on discrimination law. She formerly served as an Administrative Law Judge of the New York State Division of Human Rights, a former member of the New York City Commis­ sion on Human Rights, and as the Special Deputy Attorney General for Civil Rights for the New York State Attorney General. 3 Ruthann Robson is Professor of Law and University Distinguished Professor. She teaches in the areas of constitutional law and sexuality and the law. She is the author of numerous works of scholarship and creativ~ writing. 4 Professor of Law, City University of New York School of Law; J.D., Harvard Law School. 5 Distinguished Professor of Political Science and Sociology at The Graduate Center, City University of New York; Ph.D., University of Chicago.

233 234 NEW YORK CITY LAW REVIEW [Vol. 13:233 well known for her work on social movements and poverty. That conversation was about economic justice, and focused on socio-ec­ onomic class and poverty. Our second conversation ·was between Janet Calvo,6 who teaches in the area of health law and co-directs our Health Law concentration, and Nicholas Freudenberg,7 who is well-known for his work on health care and the responsibility of corporations. This conversation focused on health. Both of these conversations are now available in our own New York City Law Review. 8 Today, we are thrilled to have Kimiko Hahn, a Distinguished Professor of English at Queens College. In addition to being a pro­ fessor, she is well-known and highly regarded for her poetry, which is written in English, but often inspired by Japanese language and forms. Also, she has just written a new collection of poems inspired by science entitled Toxic Flora, which is forthcoming this spring.9 Our other speaker is CUNY Law's Jenny Rivera, who is the Di­ rector of CLORE, the Law School's Center on Latino and Latina Rights and Equality. She has written compellingly on language rights, language discrimination and language access. 10 As well as having experiences in the political use of language in her position as Special Deputy Attorney General for Civil Rights for the New York State Attorney, this past summer she was part of a coalition supporting the confirmation of Justice Sotomayor, where she was

6 Professor of Law, City University of New York School of Law; J.D., New York University School of Law. 7 Distinguished Professor of Public Health and Social/Personality Psychology; Di­ rector, Doctor of Public Health Program at Hunter College and the Graduate Center, City University of New York; Ph.D., Columbia University. s See Stephen Loffredo & Frances Fox Piven, A Discussion of Poverly, Class, and Economic justice Between Frances Fox Piven and Stephen Loffredo, 11 N.Y. CrIY L. REv. 1· (2007);Janet Calvo & Dr. Nicholas Freudenberg, A Conversation on Health and Law, 12 N.Y. Ci1Y L. REv. 63 (2008). 9 KIMIKO HAHN, Toxic FLORA (2010). 10 Jenny Rivera, An Equal Protection Standard, supra note 2. See also Jenny Rivera, Creating an Intimate Partner Violence Against Women Legal Theory, 8 N.Y. CI1Y L. REv. 495 (2005) (illustrating that the "domestic violence movement is English language-cen­ tered and unicultural"); Jenny Rivera, The Availability of Domestic Violence Services for Latinas in New York State: Phase II Investigation, 21 BuFF. PuB. INT. LJ. 37 (2002-2003) (illustrating that "[m]onolingual Spanish-speaking Latinas are most adversely affected by the lack of bilingual/bicultural services"); Jenny Rivera, The Violence Against Women Act and the Construction of Multiple Consciousness in the Civil Rights and Feminist Move­ ments, 4].L. & PoL'Y 463 (1996) (illustrating the effects on particular cultures of hav­ ing only a few Latino, African-American and Asian officials in the legal system);Jenny Rivera, Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials, 14 B.C. THIRD WORLD LJ. 231 (1994) (illustrating how the lack of Spanish-speaking officials and personnel negatively affect Latina women), 2010] TRANSLATING EQUAUTY 235 forced to think about her use of language when talking to politi­ cians and the public about the confirmation process. Thank you both for being here today. So, let me start the con­ versation with a question that comes from the reading we have been doing in our constitutional law class. We have read Hernandez v. New York, 11 where a majority of the Supreme Court upheld a prosecutor's exclusion of Spanish-speaking potential jurors based upon the jurors' statements that they would try to accept the offi­ cial translator's translation of any Spanish-speaking witnesses. The prosecutor seemed to want the potential jurors to say that they could-perhaps definitely-accept the official translator's version, no matter how they understood the testimony in Spanish. Do you think the prosecutor's expectation, which the Supreme Court adopted, is possible? Is it possible to say that one would definitely accept an official translation even if one knew it was inexact or even wrong? PROFESSOR JENNY RIVERA: Good morning, thank you for inviting me to this conversation. In response to your question, I don't think it's possible for a juror to ignore what the juror hears on the stand, nor do I think it is possible for a juror to ignore what the juror understands or what the juror thinks they understand is the substance of the testimony. Therefore, I don't think it is rea­ sonable for the prosecutor to expect potential jurors to ignore a communication and what they believe to be an incorrect interpre­ tation of a communication. I also don't think it's reasonable for a society that is based on the rule of law to expect anyone to ignore an error in the court­ room, if that may impact the integrity of the process. I believe that it is very valuable to the judicial process to recognize how jurors may be able to recognize a translation error, or at least communi­ cate a different understanding of the testimony. Even if we want to avoid having four separate translators in the room (the jurors, po­ tential jurors, the translator, and the official court reporter), we could certainly find a way to allow a person who happens to be bilingual to serve on a jury, for example, by making sure they do not hear the original Spanish version of the testimony. However, I think even this approach creates problems, be­ cause language is not only about the technical word, and what that

11 Hernandez v. New York, 500 U.S. 352 (1991) (holding that prosecutors can dis­ miss potential jurors who are bilingual in English and Spanish from juries that will consider Spanish language testimony, rejecting petitioner's claim of a racially moti­ vated peremptory challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) ). 236 NEW YORK CITY LAW REVIEW [Vol. 13:233 word means, but language-and its meaning-also encompasses how the word is said, and how the words are put together. PROFESSOR KIMIKO HAHN: Well, I'm not familiar with this case, but if you think back to whatever poetry class you had, way back when, you may recall the words "denotation," the dictionary definition of a word, and "connotation," the idea or feeling that we associate with those words. These are terms we use in everyday speech, not just literary terms. Add to that glorious ambiguity of language the issue of translation and the potential for multiple translations in the room. What does that mean for the individual and the various communities in that room? What does that mean in terms of your responsibilities in the future? How can we under­ stand what someone is expressing? PROFESSOR ROBSON: Embedded in the Hernandez v. New York discussion is a concept of the "right" to translate as well as the notion of "incorrect" translations. This "right" to translate was the underlying issue in the Marilyn Chin controversy where Chin trans­ lated Vietnamese poetry.12 PROFESSOR HAHN: The controversy was especially compli­ cated because it involved poetry from the Vietnamese written in Chinese. PROFESSOR ROBSON: The critique of the translation was that Chin wasn't being accurate enough and merely "noodling around."13 You wrote that you felt the real issue is who has the right to translate. All other aspects (who is most learned, who has the right background, who pos­ sesses particular kinds of access, etc.) are fascinating and not to be dismissed; however, to question whether a translator knows enough of the language is not the point ...... I studied Japanese with men trained during WWII. Translat­ ing from the Japanese was once their domain. Has that legacy of entitlement somehow continued? ...... Translation is such a peculiar synthesis of skills and sensitivi­ ties-who is to say what is ultimately the most important one?14 Can you expand on your own experiences while learningJapanese?

12 Marilyn Chin, Letter to the Editor, 192 PoETRY 251 (2008), available at http:// www.poetryfoundation.org/poetrymagazine/letter.html?id=l81632 (responding to comments made by Joseph Bednarik criticizing Chin's translation); see also Joseph Bednarik, Letter to the Editor, 192 POETRY 421, 421 (2008) (responding to Marilyn Chin's reply). 13 Joseph Bednarik, Letter to the Editor, 192 PoETRY 251 (2008), available at http:/ /www.poetryfoundation.org/poetrymagazine/letter.html?id=l81631 (criticizing Marilyn Chin's translation ofa Vietnamese poem to Chinese). 14 Kimiko Hahn, Letter to the Editor, 192 POETRY 501 (2008), available at http:// 2010] TRANSLATING EQUAJJTY 237

PROFESSOR HAHN: I learned someJapanese as a child, then in college I studied proper Japanese. There I was trained by men who learned the language when they were in the Second World War, later becoming part of the American Occupation. This was their very particular training. They were my literature professors, and I absolutely worshiped their translations. They were absolutely brilliant men. However, I came to understand that, of course, they were mak­ ing cultural decisions in their translations, and I began to increas­ ingly question some of the decisions that they had made. (I should add, too, that at least one professor taught us to watch for these kinds of decisions in whatever translations we read.) This was the issue in the controversy involving my friend, Marilyn Chin.15 She was translating16 Vietnamese poetry, which was written in Chinese in the eighteenth century.17 The translator18 who had pub­ lished the Vietnamese poet's work and his friends were furious with Marilyn Chin because they disagreed with her version.19 I don't speak or read Chinese but in her translation she changed the tone to one that was very sassy, more so than in earlier translations. That's Marilyn's right. Even if she's wrong, that's her right. And it's her right to publish her translation, but of course it's also their right to criticize her. Everybody immediately started taking posi­ tions. It became a huge argument within this tiny realm of poetry. Perhaps part of the issue was territorial. In any case, it was fascinating. PROFESSOR RIVERA: I'll share an experience from legal practice, when I was a junior staff lawyer with the Legal Aid Soci­ ety's Homeless Family Rights Project. We had a case that involved our representation of a Latina, who was Dominican. It was a class action case against the City of New York and the State of New York, and we were conducting discovery. The case involved a failure to provide particular types of bene-

www.poetryfoundation.org/poetrymagazine/letter.html?id=l82126 (responding to criticisms of Marilyn Chin's translation of a Vietnamese poem to Chinese). 15 See supra notes 12-14. 16 Marilyn Chin, Translator's Note, 192 POETRY 43 (2008), available at http://www. poetryfoundation. org/ archive/poemcomment.html?id= 181316. 17 See, e.g., Ho Xuan Hu'o'ng, FloatingSweetDumplingI92 PoETRY41, 41 (Marilyn Chin trans., 2008), available at http://www.poetryfoundation.org/archive/poem. html?id=l81316 18 Prof. Hahn is referring to John Balaban; see Ho XuAN Hu'o'NG, SPRING EssENCE: THE POETRY OF Ho XUAN Hu'o'NG Qohn Balaban trans., Copper Canyon Press 2000). 19 John Balaban, Letter to the Editor, 192 POETRY 421 (2008), available at http:// www.poetryfoundation.org/poetrymagazine/letter.html?id=l81747. 238 NEW YORK CITY IA W REVIEW [Vol. 13:233 fits. I accompanied my client to the City's offices for her deposi­ tion. I was sitting there with my client and the City's attorney, who was also Latina. We had a translator because my client did not speak English well, in fact, did not speak very much English at all. The attorney for the City started asking her questions about her experiences, who she was, and a little bit about her background. But then she asked her a question relating to letters that she had received from the City, and how she had used public benefits in the past. My client answered in Spanish, and the translation was moving along rather well. Then the translator translated what the client had said as, "I stole the money." I looked at the attorney for the other side. The two of us looked at each other and said, "That is incorrect." Now, the only way that was possible is because my adversary was Puerto Rican, as am I, and both of us understood a Caribbean version of what my client was saying-my client is Do­ minican, I am Puerto Rican. We both understood that she did not say, "I stole the money." The translator was also Latina but she was not from the Latino­ Caribbean. This was not a word or phrase that she would translate other than the way she translated it. The City attorney and I both said, "That's not the correct translation," and that we wanted to take a break and stop the record, and that is what we did. My adver­ sary and I caucused, and she, of course, was not going to tell me anything other than she agreed that that was not the correct trans­ lation of what the client had said. But she agreed to allow me to translate the question to the client as well as the translator's inter­ pretation of what my client had said. I was going to translate the Spanish to English and back to Spanish, to ask her if that was cor­ rect, so that I could then translate it to English for the record. My adversary agreed to let me do that first, and my client was beside herself, stating, "No, no, no, I never stole it." It was quite a mo­ ment. We went back on the record and explained the problem with the translation. My adversary asked the question again, and specifically asked the client, "Did you say and mean that you stole the money?" My client stated, "Oh, no, no" and then she went through exactly what she meant. After this was done, the translator, without anyone asking, said, "I wish to put something on the record." My adversary and I were thinking, "What could that be?" The translator stated, "I want to put on the record that I have a certificate from" so-and-so, "and I am," whatever' the language group, the national origin, Spanish­ speaking language group she was from, "and I have given the offi- 2010] TRANSLATING EQUAll1Y 239 cial, authentic and correct translation of what the person who is being examined has said." Both my adversary and I said "thank you," but we again put on the record that both of us disagreed with the translator's version, and that both of us accepted that the client did not say that she'd stolen the money. Thank goodness that we agreed. This translator was very invested, first of all-it could mean losing her job-but very invested in the perception that she had given the correct trans­ lation, regardless of what that could be. This person who was being examined would say, "I never meant that I stole the money." This was very clear, and there were two other people, two other lawyers in the room, who not only spoke Spanish, but who understood this particular type of Spanish communication. My adversary could have said, "I accept the official translation. You have the opportunity to put anything you want about it on the record, but that is the official translation." Luckily, she agreed that the "official" translation was flawed. She and I saw each other twenty-some-odd years later, and we both remember it quite vividly. So, yes, there is something about who gets to translate, what it means, and how you clarify understandings about statements made. Since that day I've always wondered what would have hap­ pened if I hadn't been in the room and the adversary wasn't willing to recognize that the translation was flawed? What could have hap­ pened? She could have put it into my client's file and sent it to the federal government. PROFESSOR ROBSON: How do you see the difference be­ tween language, dialect, and vernacular? We seem to think of En­ glish as one language, Japanese as one language, and Spanish as one language, but of course, that's not really true. PROFESSOR HAHN: We were speaking earlier how even Spain, that little country over in Europe [laughs], feels it owns the Spanish language even though there are many more people in this hemisphere who speak the language Spain originated. Of course, issues of ownership and change crop up in so many different ways-instances smaller than hemispheres. An example of what happens to English from one part of the country to another: I taught at Houston for one semester and loved the experience. I recall when I first arrived I could not understand the parking at­ tendant, and thought, "Wow. This is my entrance into a different language adventure." And, well, it was a pleasure. I love scenes like that, and it wasn't even a matter of dialect in this case. 240 NEW YORK CITY LAW REVIEW [Vol. 13:233

PROFESSOR RIVERA: When I grew up in New York City, I grew up in a neighborhood that was predominantly Puerto Rican. My experience with Spanish speakers involved Puerto Ricans who spoke Spanish. When I went to college, it was my first exposure to another Latino group-my roommates were Mexican-American. As they started to speak I said, "What are you saying?" And they would say, "What are you saying?" They didn't understand me because they thought I spoke too fast, which is true in English too. It was quite comical, but once we got through the whole thing about, "That's not Spanish. I don't know what you're speaking, but that is not Spanish," we realized, of course it's Spanish. Of course we can both be territorial in some ways, but very open to engaging in a conversation from our respective places. It allowed us not only to be able to speak in Spanish and understand each other, but to learn about these different cultures that brought us to this place to speak in Spanish, and about our different histories. I didn't know very much about the Mexican and Mexican­ American experience. But through this initial linguistic debate, "What's that language you're speaking? Because it can't be Span­ ish," the conversation made both sides really open to learn some­ thing much deeper about our experiences in this country. PROFESSOR HAHN: This issue of feeling territorial over lan­ guage and what happens culturally is fascinating. My mother's par­ ents came from Japan and she grew up in Hawaii on a plantation. They brought to Maui the Japanese language that was spoken in Japan at the turn of that century, specifically the Japanese spoken by peasants, and there the language stayed undergoing its own evolution on that island. It was very different from the Japanese that evolved in Japan. When my mother visited as an adult and spoke Japanese, it was, I guess it was considered quaint. We know that language evolves in this very weird way, and it forms our identity. It forms the way we view other people. So my mother grew up speaking this sort of peasant, old-fashioned Japa­ nese in her home. She grew up speaking standard English in a tiny classroom in the middle of this tiny island. She also spoke Pidgin with her friends. Hawaiian Pidgin20 is made up of English, Japa­ nese, Chinese, Portuguese, and Hawaiian, and now probably more

20 Despite its name, Hawaiian Pidgin has outgrown its "pidgin" origins. By defini­ tion, true pidgin languages are used only under restrictive circumstances by speakers of various native languages as a means of being understood by each other. Since its first use as a means of communication between people from Hawaii, China, Portugal, Japan, Korea, the Philippines, and many other countries, Hawaiian Pidgin is now spo­ ken by its own native speakers and has therefore earned a "creole" classification. See 2010] TRANSLATING EQUALITY 241 languages as well, such as Korean and other South Asian lan­ guages. All these languages were spoken by laborers and the others living on the plantations.21 It's a really interesting conglomerate, and very different from the way we speak English. When you hear someone speaking Ha­ waiian Pidgin, it can be quite difficult to understand. So she grew up basically speaking three languages, and that's just the way she lived as an immigrant daughter. It was glorious and culturally rich. PROFESSOR ROBSON: If it is so essential to one's identity, and this is something that the courts grapple with, how is it like ethnicity? Isn't it unique because it is changeable, the language it­ self changes, everyone who speaks it changes, and people can learn other languages? How do you see it as essential to one's identity, or not? PROFESSOR HAHN: Essential to identity, yes. Plus I think we must agree that Spanish, for example, is spoken in any number of ways. The differences arise not only from place of origin, but also though class, gender, and even one's own experiences. If we agree that it is complex, then that is a good starting point. PROFESSOR RIVERA: There is the flawed approach in the law that it's mutable, that anybody can learn Spanish, Chinese, or any language. But that is really to decouple language from experience, to decouple from what the language means to us. I learned French in high school. So, my connection to that language is different than my connection to English and to Spanish. It is something I have learned in a particular way, and I am embarrassed by the way I speak it, by the way-and I should be. But I do have a different connection to it, even though it's a Romance language, and it has similarities to Spanish. In fact, I found it to be a beautiful language, and I connected to it because it reminded me so much of Spanish. My mother also loved it, even though she was disappointed I wasn't in the Spanish class. We had records that we took home. I would put them on the phonograph and she would come into the room, of the three rooms that we had, and she would listen to the records. "It's such a beautiful language. Oh, speak it. I love that." And she just loved this, and the sound of it, and I think, in part, it's because in many ways it was very reminiscent of Spanish. It is about your culture or your experience, but I really do think, because of the history of various linguistic minorities in this

KENT SAKODA &JEFF SIEGEL, PIDGIN GRAMMAR: AN INTRODUCTION TO THE CREOLE LAN­ GUAGE OF HAwAI'I 2-3, (2003). 21 See id. at 3-14 for a short history of the development of Hawaiian Pidgin. 242 NEW YORK CITY IA W REVIEW [Vol. 13:233 country, that even if you don't speak-and I'll put it this way-a word of that other language, the language means something to you. Maybe you know "hello" and "goodbye." Maybe you know a few phrases. Maybe you can order something at a store. So you need not even be fluent, and I think this is the other flaw in this. "All right, how good are you? Are you bilingual?" You get certain protections if you're bilingual and if you're not bilingual, then you get some other kind of protections. But it's also something about the connection. I know enough Latinos who don't speak Spanish very well, or at all, who would be just incensed by anyone saying, "This is an English-only country." And bilingual people who would be very proud to say, "It's an En­ glish-only country." So, any language is part of other experiences that, like various histories in this country, the law doesn't always capture so well. And I think that's what's problematic, that dichot­ omy in the legal analysis. PROFESSOR ROBSON: When we think of English-only, there are real questions about what the government should require peo­ ple to learn in order to do business with the government, for exam­ ple obtaining driver's licenses or public benefits.22 One thing that arose in the student questions involved concerns about govern­ ment resources, and where does it end. Does there have to be a critical mass of people that speak a certain language before the government should provide translators, or provide things on the subway? What kinds of things should the government take into ac­ count, assuming that it is ready to apply language services, and not just apply a draconian English-only policy? PROFESSOR HAHN: On the one hand, just for practical rea­ sons you can't have the word "exit" on a door in every language that is spoken, say, in Queens. There wouldn't be enough space on the door! On the other hand, there was a recent article about a man who's making his Spanish-speaking employees speak English

22 Challenges against government English-only requirements have been both struck down and upheld. In Alexander v. Sandoval, 532 U.S. 275, 292-93 (2001) the Supreme Court held in a 5-4 decision that Alabama's administration of a driver's license examination only in English was immune from a private challenge under Title VI of the Civil Rights Act of 1964. The Arizona and Alaskan Supreme Courts have both struck down voter-approved amendments to the state constitutions requiring state and local governments to conduct business only in English. See Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998) (striking down the initiative on First Amendment grounds); Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183 (Alaska 2007) (striking down an initiative requiring government employees to exclusively use English in their official duties). Thirty states have declared English their official language, see U.S. ENGLISH, http://www.usenglish.org/view/13 (last visited Jul. 4, 2010). 2010] TRANSLATING EQUAUTY 243 when they're at work. His reasoning was that it is good for business. I just thought to myself, "Since they're mostly Latino people going to your store, what would really be good for business is for you to learn Spanish. That's what's good for business." But, it is also good for business for his workers to learn English. I think we should all be taught two languages: a language that everyone shares (and I use that word knowingly), but also a second language-whether that is Spanish taught in school or a language that one's grand­ mother speaks, like Hmong or Russian. I don't understand what the problem is with being a more culturally rich person. This is the case in Europe and in Hawaii where my mother grew up. It is a part of life. I can imagine those who might think this is not American, but in fact it is very American to speak more than one language. This country has undergone a cultural lapse. Why have Americans become increasingly narrow minded? What's wrong with speaking two languages? Does that mean you're compromising English? I can't understand what the issue is. Is it better to be stupid? This reminds me of the so-called global warm­ ing issue. Even if there isn't such a phenomenon as climate change, isn't clean air a positive thing? PROFESSOR RIVERA: One of the things that comes up is con­ tracts for government services, and I think, "What's the big deal? What's the objection?" Some of the primary objections are, "Well, it's just too costly. It's unwieldy. It's not practical. We can't do it." We know we can. That has evolved over time. But those responses are really no longer justified. There are ways, of course, of provid­ ing various linguistic-appropriate services-I'm not even talking about culturally appropriate services-that we can do very conve­ niently, and very easily. We can do it by hiring a bilingual provider. You can do it through a translator phone service. So, there are many, many ways that you can do this that are cost efficient, practi­ cal, and not overly demanding. So that addresses the ability to do it, right? Now, we get to the essential problem, which I think is about the willingness to do it. We could argue that some of this is rights-based. These are benefits that people are legally entitled to receive and they should have ac­ cess to them, and we can put this into some category of rights. You could argue it as anti-discrimination: not to provide it means some­ one who speaks a different language falls subject to discrimination, not on the basis of language, but based on national origin. We can connect language to national origin, making that a rights-based case. 244 NEW YORK CITY LAW REVIEW [Vol. 13:233

I think part of it is also historical. We have a reason to provide these services. We've been presented with someone who has diffi­ culty in accessing the services, and we have to accommodate it in some way. But we have done something that created a particular situation. There are consequences to our history, and those conse­ quences include discrimination. One of those consequences is that there are people with dif­ ferent abilities and experiences who are part of the fabric of this country. So, with that kind of history, then I say it's a duty and obligation, as opposed to merely a concern about someone being able to get something we may or may not think they're entitled to. We think about it as sort of a different kind of entitlement, not just a particular benefit. We think about how our history has conse­ quences attached to it, and we build the framework to address those consequences. It's like remediation. In my opinion, we don't desegregate because it's just morally right, though it is. You deseg­ regate because, my goodness, you put people in this position, and they can't have a good, comfortable life. They can't afford to be in good housing, or to move or travel as maybe they wish they could. We destroyed their history, because of what's done to their ances­ tors, and what we continue to do. You need to remediate that and respond to that. So I would say, it's a very complex answer, but practically, we can do it. But I think there are various arguments for why we must do it. Then you get back to the kneejerk reaction. ''You can't do it. It's too costly." Or, "Why don't they speak English? Why don't they learn English?" Or, "Why aren't there English classes?" I don't know. You tell me. But you have to at some point say, "That decon­ textualizes that moment, that consequence, from this much broader history." We need to think about why we need to respond, why we need to provide those services, and how we provide those services. PROFESSOR HAHN: How to teach English is also an ongoing issue. On the one hand, I'm a professor of English and even my grammar is not perfect [laughs]. The way our own language, En­ glish, is being taught to children, native speakers-the reading re­ quirements, grammar, and so on-all of that is being slowly chewed away. We know it is not being done particularly well. Some has to do with the need for higher pay and respect for public school teachers, plus greater expectations. Given this problem, how is one supposed to learn a second language? How are people supposed to come to this country and 2010] TRANSLATING EQUALITY 245

learn English, when even our native speakers are not really given a first-class education-perhaps unlike a certain section of the work­ ing class was taught in the 1940s and 1950s. It's partly a general education issue, and believe me, in the English department, we are overwhelmed. We keep hiring people to teach freshman composi­ tion. Sometimes it feels dire. Why is that? My personal opinion is that after about five years a professor is burnt out from trying to bring everyone up to speed. Although we have all taught English composition, if that's your main task in an English department, it's overwhelming. The other problem is that we need more and more people to teach freshman comp in the form of remediation. It doesn't matter what class you're from. Even when I taught at Yale, I had students who were not adequately prepared. So it's not just a problem of a second language. PROFESSOR ROBSON: How about English as a second lan­ guage? There have been some studies, mostly from the '90s, that have not really been updated, focusing on how ESL has really been put on the back burner and there are documented declines in en­ rollment of ESL students.23 As CUNY professors, how do you expe­ rience the current climate for ESL students at CUNY? If it is not optimal, what do you think might be done to improve the situation? PROFESSOR HAHN: I think it still goes back to my previous comment. I think that everything needs to be sharpened, begin­ ning with language arts. But I don't want to speak for the whole English department. PROFESSOR RIVERA: There is a whole history behind the push for linguistically appropriate courses and language courses for students for whom English is not their first language. Some of it is about language and pedagogy, and what's the best way to teach an English language course. But some of it is the politics, and the history of oppression. What is the struggle for competence in the classroom, and access for students who speak a language other than English as their first language, primary language, or language of preference or choice, if not a struggle for identity? If not a strug­ gle for equality? If not a struggle for finding your place, in what appears to be a hostile environment? It is one thing to say, "We should have a language that we all

23 See Ricardo Otheguy and Mary O'Riordan, The CUNY Celebration and the Disap­ pearing Guests: The Search for ESL Students in the City University of New York, 9 COLLEGE ESL 1 (2000). 246 NEW YORK CITY LAW REVIEW [Vol. 13:233 can understand and communicate in." But it's another thing to say, ''Your language is dirty. And when you speak you're showing your ignorance by not being able to speak English." Or, "Because you speak that other language, or you speak English with a particular type of affect or accent, you're telling me that you really don't un­ derstand the language, and are not able to communicate." These, I think, are very different things. These issues are also embedded in the struggle to set up ap­ propriate educational programs for "English-language learners," which is now the phrase that has been applied to what used to be students who are learning English as their second language. It's all very politicized in the way we think about that movement to ad­ dress these consequences of our history, as people in this country who speak languages other than English, and have added to the fabric of our democracy. PROFESSOR ROBSON: What about accents that are not from another language? There have been a lot of studies focusing on "accent discrimination,"24 so that if you are interviewing for a job, or doing work on the phone, even where people can't see you, if you have a so-called black accent, if you have a southern accent, if you have an Appalachian accent, there is a sense that "That's not real English," or "It's some kind of English, but it certainly isn't derived from what we think of as proper English." PROFESSOR HAHN: We were just talking about identity. D"o we want to strip people's identity away? Identity is inherent in an accent, being able to hold on to your accent, because that's who you are, where you come from, and often times, it makes someone interesting. We love people with accents when they're on TV. This is what I do in terms of art, in terms of teaching poetry workshops. I'm trying to get students to go back to the particulars of their lives, and not to write what they think a white guy from the fifties would write. When they do this, they're imitating somebody else's poetry, and I'm trying to get them to write their own poetry, which has to do with their own life, their own identity, what they ate, who their grandparents were, and what kind of flowers grew up in their back­ yard or on their apartment building window. I'm trying to get them

24 E.g., Agata Gluszek, Speaking With a Nonnative Accent: Perceptions ofBias, Communi­ cation Difficulties, and Belonging in the United States, 29]. LANGUAGE Soc. PSYCHOL. 224 (2010); Agata Gluszek & John F. Dovidio, The Way They Speak: A Social Psychological Perspective on the Stigma of Nonnative Accents in Communication, 14 PERSONALITY Soc. PSYCHOL. REv. 214 (2010). 2010] TRANSLATING EQUALITY 247 back to those particulars. We know people who can flip in and out of accents really easily. A personal example: my daughter is 24, and when she's with me she speaks the way I'm speaking. When she's with her friend from down the block, she sounds like her. I mean we all have the capacity to have various sides to our identity. There is nothing inherently wrong in that. PROFESSOR RIVERA: The only thing I would add to that is that accent discrimination is always about more than the accent. It's not really about the accent. It's about something else that's go­ ing on. I doubt that if I went to a place with a French accent that I would be mistreated. Whereas I think there's been enough docu­ mentation, as we just mentioned, that with other types of accents, based on the language or acculturation, they don't get that atten­ tion. The British accent is cute. 'the French accent is cute. But the "Mexican" accent is not so cute, and you have to question whether it is really about the accent. Is it being able to communicate? Is it about the other side being able to understand? Is it what the lis­ tener, or the anticipated listener, will connect to the accent? They're connecting to a type of person, a particular group, a par­ ticular education, a particular level of accomplishment. So I think that is really what we want to get to with the accent issues. There's always more. I've had some clients who were complaining about being dis­ criminated against based on their language. They wanted to and did speak Spanish. It wouldn't take long for them to tell me other stories about the workplace that had absolutely nothing to do with speaking Spanish, but were instead about being discriminated against: "They don't want our music. They don't want two or more of us in one corner." It was always more than just speaking Spanish, and in that sense, as a lawyer, it made that an easier case. If you focused only on the language, then perhaps it would be harder to make the case that it is about national origin discrimination. It's not just about the way you translate something like this. It's much deeper. You've got to get past this as a lawyer. Those other exam­ ples made it easier, made it possible to say, "That workplace is in­ fused with discrimination against people because of their identity, and they expressed that identity through language." That, or their accent, becomes the way people get targeted. PROFESSOR HAHN: The flipside though is a lawyer, who we all know as President Obama. He's not black enough. What does that mean? And yet when he does that fist bump thing he's too black. It's context and who you're targeting. 248 NEW YORK CITY LAW REVIEW [Vol. 13:233

PROFESSOR ROBSON: When you're dealing with people writing poetry, if people can flip back and forth, why do you have to talk to them about digging deeper, and trying to be authentic? What's standing in the way of that in terms of professionalization? We think about that at the law school, in terms of being educated in undergraduate or graduate school. PROFESSOR HAHN: One thing that stands in the way is what I like to call "permission." When I was an undergraduate, I was struck by the way T.S. Eliot uses a lot of different languages in The Waste Land.25 A little Latin, a little Greek, a little Hindi. He throws it in there, and it's this wonderful tapestry of language, and most of it is English. Because I'm a rather sassy person myself, I was think­ ing, "Why shouldn't I do that?" So, some of my poetry contains the language that I heard my grandmother speaking. I included notes in the back saying, "Well, this means 'bad girl,"' or something like that. I gave myself permission by seeing what a poet from another generation was doing. So as a teacher, one thing I know I can do is give a student permission to write about their own life. One would think that this would be obvious. One would think that that's why they're in the poetry workshop, to write about them­ selves. But expanding on my earlier comment about writing from one's own experience, students in my poetry workshop often use language to form a block between the reader-listener and them­ selves. It's ironic, butjust because you're using language does not mean you're actually expressing yourself. Sometimes you can hide, even in poetry-not good poetry-but even in poetry you can hide behind language and think, "Oh, I'm expressing myself. I'm talk­ ing about my boyfriend who just left me," but writing something down is not the same as artistic expression, pulling the reader into the experience of, say, grief. My role is to give my students permission, but ultimately the writer has to give him or herself permission to do the really hard work of true expression. How do I do that? I do that through con­ structive criticism. I do that by having them read a lot, reading con­ temporary work from diverse quarters, and in so doing, get p&mission to do what writers before them have done. I also do this by "tricking" them into authentic expression through writing exer­ cises-which, to tell the truth, I have to do for myself at times. PROFESSOR ROBSON: Professor Rivera, what would you say about complaints or observations that many first-year law students

25 T.S. Eliot, The Waste Land, in COLLECTED PoEMS 1909-1962 51-69 (Harcourt Brace Jovanovich, 1st ed. 1991). 2010] TRANSLATING EQUALITY 249 might have, especially coming from a literary background, that law school is kind of the opposite, that what we are doing is stripping away every permission that anyone has ever given you in order to put you into a little mold or box? That legal argument is not about expressing yourself, authentically or not? PROFESSOR RIVERA: This is an experience where you are also learning a language. This is another language. The technical aspects of it, like the vocabulary, the tonation of it, all of that is something you have to learn. The other thing is the culture. It's a profession that has cultural markers attached to it. You must con­ duct yourselves in a certain way through language. Language allows people to conduct themselves in a certain way. One speaks acer­ tain way in court, such as before the judge, both on the record and off the record, that is different than the way you might speak outside of that courtroom. I do think that the profession places value on how we speak. I think that it's important to recognize it as such, to recognize you've had the legal training, and then to learn it with a vengeance. You have to learn it with a vengeance, so that you can be the one who's using that language to the benefit of your client and to strengthen the arguments you're making, and the social justice issues that are important to you. You really do have to recognize the way that language is used. Although you may think, "Oh, if I could only say it this way," as I've sometimes said in my Property class, you can only say it that way. But once you've mastered it, it's sort of the difference between someone who knows very little about something, and can only do so much with it, and the master, who really understands, and has the freedom and the liberty to play with it and to push it in other directions. So, if you're a person who only cooks on occasion, you're only going to be able to do so much. You can't invite me over to dinner because you're not going to have a decent meal for me. You're going to have what you bought in the store, and maybe toast. But if you become a master chef, of course you're going to take this to new heights. The sauces, the choices that you make, the presenta­ tion-and so, you use the building blocks, even those which may feel very limited, and just want to crush you. You just feel crushed when you take them in. You feel crushed when you take the final examination, in part because you can't really express all that you think you can, but that's about the learning. You've got to take 250 NEW YORK CITY LAW REVIEW [Vol. 13:233 baby steps before you can run a marathon. I think there really is something to that. Creativity comes, in some sense, with really getting a handle on the nuances. You may read some of those decisions in these casebooks and say, "That's horrible. Who wrote this? This is hor­ rendous." And I might agree with you. You may read others and say, "That's fabulous. They really wrote something that just speaks to me in so many ways.~' Well, most of those jurists don't automati­ cally come to the-the computer screen now, but a pen and paper before-and just write that way. It comes with time. You have to invest in it. PROFESSOR HAHN: You probably don't know this, but a lot of people don't like lawyers [laughs]. But when they need a lawyer, th~y're hiring you to translate the language that you're learning here. It's a translation, right? You're translating for us. PROFESSOR RIVERA: I think it also suggests that, even if you learn the language, that without the acculturation, without the im­ mersion in the way the language is deployed, you'd still be at a disadvantage. You might get some of the crafting of the will and the divorce settlement, but there's something more going on, as you say, very strategically, I'm not hiring you because you know the law. I'm hiring you because you understand how to best communi­ cate, "I didn't steal the money," to those people in the courtroom. If a non-lawyer just says, "I didn't steal the money," it doesn't get across the same way, or doesn't have the same persuasive impact that it would have if a lawyer did it, because that's what lawyers have mastered. That's what law students have gained in this process. You've also learned the way others who are masters of it are deploying it, so that you can respond. Use that to the benefit of those social justice goals that you have. No one came to me and expected me to go in and communicate their argument the same way they would communicate it, for the very reason that Professor Hahn just mentioned. They expected more from me, because they understood the law is already so distant. You bring the client closer by being, as I said, the translator. You bring the client closer by finding a way to give voice to this issue in a way that doesn't lose the passion behind the issue. Of course, if you're a lawyer, you're supposed to be dispassion­ ate. There's plenty of that going around, right? Let's just use my discrimination example: the lawyer who is perhaps not able to re­ ally, thoroughly communicate that discrimination in the work- 2010] TRANSLATING EQUAUTY 251 place, because they're not able to appreciate it, and translate all those experiences as national origin discrimination. It's your ability to do that. But you have to master the language of the prison, the box, to be able to break out and do that for your client. PROFESSOR HAHN: And that's probably why people love to watch lawyers on TV, right? Most of the time all of the proceedings are pretty dam boring, unless you're involved in it. But why do you want to watch it on TV? It's really for the kind of language and repartee, how one lawyer will see an opening because of one word, and that quickness and facility with translation. PROFESSOR ROBSON: So we don't have any television shows about poets. The question is "why not?" How do you see poetry as being exciting and part of the social justice initiative, then? Using poetry with all the things that Professor Rivera has just said about the law. PROFESSOR HAHN: Well I feel about language the way acer­ amist feels about clay or a dancer feels about body movement. When I'm reading poetry, I can almost feel it in my mouth, as if the words were tangible things. What I would hope to give to the stu­ dents here is, returning to my opening remarks, the play between denotation and connotation. The essential ambiguity that is both the beauty and danger of language. Poetry is not entirely ambiguity or clarity, despite what one learned in an Introduction to Poetry class. And lawyers need to be able to play with words. What I hope to do is to excite people with words, which is to some extent what Jenny is doing. You might want to Google poems and have them as part of your legal enterprises, social justice poems. Or just add a poem that plays with words in a manner that reveals something about language and how to use it: Those Winter Sundays, by Robert Hayden would be a good one. 26 Or perhaps you do already? PROFESSOR ROBSON: We didn't set this up this before, but would you share something from your new book? PROFESSOR HAHN: This is from my new book, which is called Toxic Flora, and almost all the poems are inspired by the sci­ ence section of the New York Times. This poem is called On Deceit as Survival Darwin could not believe an insect would visit a blossom that had no reward and insisted that the green-winged orchid

26 Robert Hayden, Those Winter Sundays in RoBERT HAYDEN: ESSAYS ON THE POETRY 59 (Laurence Goldstein & Robert Chrisman eds., 2001). 252 NEW YORK CITY LAW REVIEW [Vol. 13:233

must withhold its nectar deep inside. But he was deceived as well since this orchid does not offer nectar in its own Darwinian desire to attract then rid itself of the useful bee. Still others smell like feces or carrion for the sort that prefers to lay eggs in such environs. Yet another species resembles a female bumblebee, ending in frustrated trysts- or appears to be two fractious males which also attracts-no surprise- a third curious enough to join the fray. What to make of highly evolved Beauty bent on deception as survival­ liposuction, rejuvenated clitoris, plumped lips? I plead with daughters to forget the enhanced buttocks and rely on soap as fragrance. But, how can a mother instruct on deceit when girls so readily flaunt thigh and thong? and when parking lots are replete with broken fences and the preternatural buzz of the car alarm?27 PROFESSOR ROBSON: My question is whether there is a gendered notion to language and that men and women speak a different language? That languages are gendered? That men are from-I always get this wrong-men are from Mars and women are from the moon? No. I especially mean in terms of Spanish. I am thinking of Jenny naming a Center for Latino and Latina Rights and dealing with those sorts of questions. PROFESSOR RIVERA: Well it is tremendously gendered. Spanish and many of the Romance languages are a little bit easier because those languages always have the "o," the "a," or something to designate words that are feminine or masculine. The articles are feminine and masculine. Even without the obvious identifiers of what is generally the gendered use of language, some language is

27 KIMIKO HAHN, TOXIC FLORA 17-18 (2010). 2010] TRANSLATING EQUALITY 253

only appropriate for men versus women. So I do think that lan­ guage is very gendered and we can see that in the legal field. So much of legal language represents the male experience and a male way of communicating. That's not exactly what you're talking about, but this has changed over time. When I first started practic­ ing, I really found it very off-putting when male colleagues would talk about sports. I felt that they were very comfortable with this lingo, but I was not. I was not really comfortable with the sports that we discussed, even though I love baseball. But I found it to be a way to distance themselves from female law students and female lawyers by creating this little world, this secret place for males who grew up and experienced sports and could talk about those sports. Even if I was trying to follow a team, ask about the stadium, I couldn't even ask the questions in order to be included in the group, because that alone would present an opportunity to be mocked. This language also allows for a lot of male bonding. That's fine when it's not also affecting the professional relation­ ships. But, I think it does result in certain people feeling more comfortable with each other than they would with someone who is not part of this bond. I think that has evolved over time with more female sports teams. Females now feel much more comfortable with sports than I did and much more comfortable engaging in this sort of discus­ sion. It will be interesting to see if that means that those male dis­ cussions now start being less frequent because that sort of secret language and secret world is not available anymore, as more and more females understand it and are part of it. I do think it is gendered in how it plays..itself out in different ways and allows pro­ fessionals to be distanced from ourselves, and from those who are not lawyers, and think differently as a result. PROFESSOR HAHN: When the whole trend of political cor­ rectness started, it wasn't what it has evolved into, which I would describe as a sort of hysteria and which has been purposefully mis­ used by the Right. What it was really about was being sensitive to a context. Playing devil's advocate, hopefully these guys talking about sports aren't doing it on purpose to keep the women out of the conversation. But if they had been more socially sensitive they would have noticed and would in some way have engaged every­ body in the discussion. Whatever you want to call it, political cor­ rectness, just being sensitive, just being smart. And then, of course you can always do the opposite: "Oh, I see there's somebody in the room here. I'm going to talk about something they don't know and 254 NEW YORK CITY LAW REVIEW [Vol. 13:233

ice them." So this sensitivity can play out both ways, and you can use language in a way that suits your needs, and that's part of the training. By the way, I like the way you all use the word "adversary"! Very cool. [laughs] PROFESSOR ROBSON: One thing that has interested me is the use of "brother" and "sister" by oral advocates and by the judges. Justice Roberts uses the word "brother" more than any other justice when he's talking either about counsel or about his brothers on the bench. If it's a woman he just leaves it off. There are no sisters on the bench, though every once in a while someone gets to be a "friend." PROFESSOR RIVERA: I don't know where you're going but I'll just say this, I just can't see that Justice Sotomayor or Justice Ginsburg is Justice Roberts' sister. I just don't see that. Or that he's their brother. Compared with someone who tries to deploy that language of the familiar or the political when they are not even close. Even if Justice Roberts were to realize that perhaps some people are being excluded when he refers to brothers on the bench, even by merely saying the words "and sister" or whatever might be appropriate in the moment, it doesn't mean there is a group. I think because his judicial philosophy and approach is so far afield, we're just begin­ ning to see reactions during oral argument. So the attempt to be familiar and to suggest, "we're all in this together and don't we all have the same perspective," I think is being deployed there. I think it is important for when that is not the case, that the people on the receiving end of that invitation reject it. I once had a person who tried to say "Hi, sister," and I said "I'm not your sister." Because we were so distant in many other ways. His point was, don't we share this, the more common experience? That was true. So he thought then as a result of that experience, don't we share a common phi­ losophy? That was untrue. To try to deploy the language to suggest that there was more going on there I thought very problematic, so I tried to nip that in the bud. I think that as lawyers and law students we are often trying to negotiate in that way. As you were describing in your class, that students are deploying language in that way, sort of embracing but pushing them away, finding common ground somewhere else. There might be one meaning. There are also a lot of others that apply in that context. You might say, "I reject that because we're all jurists we may also be brother and sister on the bench. Beyond that 2010] TRANSLATING EQUAUTY 255 we share nothing in common or have very little in common, or we have to work through it and I have to see if I'm willing to say you're my brother in philosophy in this case, on this issue, or the way we talk about this experience." PROFESSOR ROBSON: And it's also usually used when you're disagreeing with somebody. PROFESSOR RIVERA: That too, that too. PROFESSOR ROBSON: Do you have any last comments? PROFESSOR HAHN: I have really enjoyed this conversation so thank you. How cosmopolitan: to talk about what I love and the language I love. Thank you for introducing me to the language of litigation, outside the TV drama. I wish you all a sensitivity that will take you further than your adversary. WHOSE SURVIVAL? ENVIRONMENTAL JUSTICE AS A CIVIL RIGHTS ISSUE

A panel discussion with Majora Carter, Majora Carter Group; Miranda Massie, New York Lawyers for the Public Interest; David Palmer, Center for Working Families; and Elizabeth Yeampierre, United Puerto Rican Association of Sunset Park. Moderated &y Carmen Huertas-Noble, City University of New York School of Law* February 18, 2010

PROFESSOR CARMEN HUERTAS-NOBLE: Environmental justice is a very timely and important topic facing our communities. Like communities of color all across the country, pockets of the Bronx, Brooklyn, Queens, Manhattan, and Staten Island battle high rates of asthma, cancer and lead-related illnesses.1 Some of our panelists have worked in the South Bronx and East Brooklyn communities that face some of the highest rates of asthma in the city. 2 It's not a coincidence that these communities are mainly communities of color and poor working-class communi­ ties3 and that they bear a disproportionate share of environmental burdens. Tonight we have a distinguished panel of speakers who are lawyers, activists and activist lawyers and who I am sure will inspire us with a rich and dynamic presentation of their work and their role in the environmental justice movement. Their area of exper­ tise includes groundswell legislation, litigating environmental jus­ tice, and ensuring responsible remediation of contaminated sites in our communities by providing access to the benefits of a grow­ ing and clean economy.

* Associate Professor of Law and founding director of the Community & Economic Development Clinic, City University of New York School of Law. 1 See Lawrie Mott, The Disproportionate Impact ofEnvironmental Health Threats on Chil­ dren of Color, 103 ENVTL. HEALTH PERSPECTIVES 33, 34 (1995) (explaining how commu­ nities of color face greater risks and exposure levels to air and water pollution leading to higher rates of asthma and lead-poisoning); see also Roberto Suro, Pollution-Weary Minorities Try Civil Rights Tack, N.Y. TIMES, Jan. 11, 1993, at Al; Linda R. Prout, The Toxic Avengers, 18 EPA]., no. 1, 1992 at 48 (discussing the prevalence of toxic sites in minority communities and organized efforts to rid these neighborhoods of hazardous pollution). 2 See RENu GARG ET AL., NEW YoRK CnY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, AsTHMA FACTS (2d ed. 2003) (showing statistical distribution of asthma hos­ pitalization by median income of zip codes within New York City). 3 See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, CouNIY AND CnY DATA BooK: 2007, at 184 (14th ed. 2007).

257 258 NEW YORK CITY LAW REVIEW [Vol. 13:257

Upon reflecting on tonight's event, it struck me that the title makes clear that environmental justice is about people as well as the ecological environment. While many have criticized this move­ ment for being too "people-centric,"4 these same critics have not appropriately acknowledged that the movement grew in part as a response to the lack of concern for people that was evident in traditional environmental activism. Undoubtedly, we need to be concerned with ecological con­ cerns and non-human populations as well as the people who are part of these environments. While not everyone adheres to the same definition of environmental justice, at times the term is co­ opted. From my work with environmental justice organizations, I have learned that core to this movement is grassroots participation, and providing environmental benefits alone does not constitute the type of transformative justice that environmental justice organi­ zations seek. Tonight it's important to note that the core of the environmental justice movement is organizing against environmen­ tal racism5 and advocating for environmental health, protection, and policies that enhance the health, safety, and well-being of our communities. One of the movement's main objectives is to empower re­ sidents of a community to gain greater control over the use of land and resources in their neighborhoods. Another is to provide op­ portunities to benefit from the environment such as access to healthy food, clean air, parks, and jobs in the growing green econ­ omy that will help communities survive our deepening economic crisis. We will continue to have this discussion with the people on the panel who are really the environmental justice experts, and we'll start with Majora Carter speaking about her role and work with environmental justice. MAJORA CARTER: Thank you so much, Carmen, and thank you all for being here. I am Majora Carter, President of the Majora

4 See, e.g., Alicia Kaswan, Environmental justice: Bridging the Gap between Environmen­ tal Laws and justice, 47 AM. U. L. REv. 221, 257, 260 (1997) (explaining that historically the mainstream environmental movement has been primarily concerned with conser­ vation issues, at times to the oetriment of poor communities). 5 Benjamin Chavis, Preface to UNEQUAL PROTECTION: ENVIRONMENTALjUSTICE AND CoMMUNmEs OF COLOR xi (Robert D. Bullard ed., 1994) (defining environmental racism as "racial discrimination in environmental policy-making and enforcement of regulations and laws, the deliberate targeting of communities of color for toxic waste facilities, the official sanctioning of the presence of life threatening poisons and pol­ lutants for communities of color, and the history of excluding people of color from leadership of the environmental movement."). 2010] WHOSE SURVIVAL? 259

Carter Group.6 We are a green economic development consulting firm whose goal is to unlock the potential of places: a rather lofty goal, but one that needs to be reconciled with reality. Here is a little background about me. Growing up, I always believed in the promise of America, even though those were the dog days of the South Bronx burning. It was a tough thing to be in a place where on the nightly news you'd see landlords torching their own buildings to collect insurance money.7 However, seeing that occur around me definitely left me with an understanding that the environment was something that was elsewhere. I had two brothers who lived in Connecticut. I had family down South. These are places where one would find clean air, which didn't exist in our communities. The concept that one could find clean air in my community never occurred to me. I was at a point in my life where being from the South Bronx was not something that I wanted at­ tached to me at all. I tried my best to. make sure that people didn't even know that I was from there. I remember moving back home in the late-nineties to my parents' house, only because I was broke and needed a cheap place to stay while I went to graduate school. If my film career had taken off, I would not be sitting here with you today. But it didn't work out that way. For that I am eternally grate­ ful to all the forces in the universe. Moving home at that time affected me greatly. First of all, I discovered my community and saw it with very different eyes. It was no longer just this dirty place that sometimes smelled funny. It was filled with lots of people that were just trying to do the best that they could. The way that I got interested in understanding people in my neighborhood was actually through people like Elizabeth Yeampierre, who you will hear from later, and her fabulous hus­ band, Eddie Bautista. They were part of a group called the Organi­ zation for Waterfront Neighborhoods.8 At the time, our city was at the point where our mayor, Rudy Giuliani, and governor, George Pataki, were planning on opening waste facilities or waste transfer

6 See Our Story, MAJORA CARTER GROUP, http://www.majoracartergroup.com/our­ story/ (last visited Sept. 10, 2010). Majora Carter founded the for-profit consultancy The Majora Carter Group LLC in 2008. Id. 7 Seej1M ROONEY, ORGANIZING THE SOUTH BRONX 36 (1995) (describing the illegal ways in which South Bronx landlords of the 1970s attempted to maximize their profits while simultaneously contributing to the neighborhood's rapid decay). 8 Our Community Partners, NEW YoRK LAWYERS FOR THE Pusuc INTEREST, http:/I www.nylpi.org (follow "About NYLPI" hyperlink) (last visited Sept. 23, 2010). The Or­ ganization for Waterfront Neighborhoods is "a citywide community-based coalition formed to address the common threat to NYC neighborhoods presented by waste transfer stations." Id. 260 NEW YORK CITY LAW REVIEW [Vol. 13:257 stations in some of the poorest communities around the city, in­ cluding the South Bronx and places in Brooklyn.9 This was in addi­ tion to the huge amounts of waste that we already handled. Working to build a more sustainable solid waste management plan made me realize that problematic environmental issues don't 'just happen" to these communities because the people within the communities don't care about what's happening. It happens be­ cause there are huge regulatory issues, and the business commu­ nity does not want to become involved in addressing these environmental problems. The business community looks at poor people, and particularly poor people of color, and considers whether these communities will notice that yet another problem is being dumped on them. That infuriated me and made me really ashamed on multiple levels because I realized that, even though I was from this area, I worked really hard to distance myself from it, so I decided to stay a part of it. I wanted nothing more than to be a part of the solution in my community. Part of the solution for me was continuing to work on advocacy with my esteemed colleagues around the city, but specifically I wanted to be a part of green open space develop­ ment that gave people something different to look at. In 2001, I founded Sustainable South Bronx,10 an environ­ mental justice solutions organization.11 Our goal was to provide project-based economic and environmentally sustainable develop­ ment in ways that people could perceive. We started by turning abandoned lots used as dumps into restored parks. We wanted physical manifestations of alternatives for what could happen in our community. One day, I came across what appeared to be an illegal garbage dump, and it turned out that this dump ended at a river. That par­ ticular piece of land helped spark some of the most notable water­ front revitalization ever in the City of New York. We were able to transform that tiny piece of land into one of the most gorgeous parks in New York City today.12 This transformation has paved the

9 See Press Release, Mayor's Press Office, Mayor Giuliani Releases Long-Term Waste Management Plan for New York City (Dec. 2, 1998), available at http://www. nyc.gov/html/om/html/98b/pr546-98.html (last visited Sept. 24, 2010); see also Douglas Martin & Dan Barry, Giuliani Stirs Up Border Tensions with Trash Plan, N.Y. TIMES, Dec. 3, 1998, at BIO. 10 MAJORA CARTER GROUP, supra note 6. 11 About Us, SusTAINABLE SOUTH BRONX, http://www.ssbx.org/index.php?link=2# history (last visited Sept. 10, 2010). 12 See Case Histories: Hunts Point Riverside Park, MAJORA CARTER GROUP, http://www. 2010] WHOSE SURVIVAL? 261 way to thinking about other types of public space projects that can support things like local economic development and stormwater management. Greenway systems was another project we worked on. I worked to raise about $1.25 million in federal transportation grants specifi­ cally to design the South Bronx Greenway, which has actually re­ ceived about $25 million worth of funding to date and is going to start breaking ground this year, notwithstanding the City's bureau­ cracy. What I am most proud of, though, is starting one of the country's first green jobs training and placement systems13 right in the Boogie Down Bronx.14 We started it because in doing water­ front restoration projects, we noticed that the city would employ people to do that work, but they weren't from our community even though we have a high unemployment rate here. This is the kind of work that, if training were provided, people in our community would be able to do. So we designed a program where community members received skills through green jobs training, whether for wetland restoration or forestry management, like learning brown­ field restoration or how to clean up contaminated land, and green roof installation. The other piece of the program that I think made it so important was coupling it with a really intensive soft skills pro­ gram.15 Most of the people that we worked with had significant barriers to employment; most were formerly incarcerated people and had experienced years of generational poverty.16 For people who did not have the experience of seeing their family with jobs, it is difficult for them to know exactly how they're supposed to act on a job site, let alone how to perform in an interview. Therefore, we were strategic at pushing for and making sure that this type of majoracartergroup.com/services/case-histories/hunts-point-riverside-park (last vis­ ited Oct. 1, 2010). 13 See Case Histories: BEST Green job Training Program, MAJORA CARTER GROUP, http:/ /www.majoracartergroup.com/ services/ case-histories/best-greenj ob-training-pro­ gram (last visited Oct. 1, 2010). In 1997, Majora Carter founded the Bronx River Working Group, which later became the Bronx River Alliance. Id. The main goal of the Bronx River Alliance was to provide local opportunities for employment. Id. 14 "Boogie Down" was hip-hop slang, which later became a common nickname for the South Bronx. See, e.g., MAN PARRISH, BoocIE DoWN (BRONX) (Boiling Point Records 1984). 15 "Soft skills" refers to the combination of personality traits, communication skills, personal habits, flexibility, optimism, and similar attributes that characterize relation­ ships with other people, and are viewed with increasing importance by employers in hiring for the workplace. See Philip Moss & Chris Tilly, "Soft" Skills and Race: An Investi­ gation of Black Men's Employment Problems, 23 WORK & OCCUPATIONS 252 (1996). 16 For the relationship between incarceration and employment, see, e.g., BARRIERS TO REENTRY? THE LABOR MARKET FOR RELEASED PRISONERS IN POST-INDUSTRIAL AMERICA (Shawn Bushway et al. eds., 2007). 262 NEW YORK CITY IA W REVIEW [Vol. 13:257 training was obtair;ied. We were able to get about an 82 percent success rate of students that went through our program, with 15 percent of them going on to college.17 In 2008, the thing that was most important to me was realizing that I needed to grow as a person and as a professional. I realized that the work we were doing in the South Bronx also had serious potential to produce projects outside of our community and outside of New York City. I decided to step down from the leader­ ship at Sustainable South Bronx to start my own green economic development consulting firm to really build on pioneering tech­ niques, and to help people understand that their self-interest was served by supporting others across stakeholder lines, and using the green economy as a tool to achieve this goal. We want everybody to feel as though their full participation benefits everybody on the planet and that it is not exclusive to just a small group of people. The wonderful thing that came out of the jobs training program was that people actually started to see some value in it. For example, northeastern North Carolina is the area of the country most impacted by rising sea levels, second only to the Mis­ sissippi Delta and the Florida Everglades. 18 After hundred-year storms, which are happening every few years right now, pieces of the Atlantic seaboard are falling into the water there,19 which is something that people are really concerned about. They are also

17 SSBx Making News, SUSTAINABLE SOUTH BRONX, http:/ /www.ssbx.org/ e-news/ SSBx-e-news_06-02-2009.html (last visited Dec. 29, 2010). 18 See, e.g., James G. Titus & Charlie Richman, Maps of Lands Vulnerabw to Sea Level Rise: Modewd Elevations along the U.S. Atlantic and Gulf Coasts, CLIMATE REsEARCH (2000), availabw at http:/ /www.epa.govI climatechange/effects/ downloads/maps.pelf (finding that Louisiana, Florida, Texas, and North Carolina contain more than 80 percent of the coastal land most vulnerable to sea-level rise); Joel B. Smith, A Synthesis of Potential Climate Change Impacts on the United States, PEW Gm. ON GLOBAL CLIMATE CHANGE 22 (2004), availabk at http://www.pewclimate.org/publications/report/syn­ thesis-potential-climate-change-impacts-us (follow "Download Report (pelf)" hyper­ link) (stating that the Southeast Region "is the most vulnerable to sea-level rise because of its low-lying coast and heavy development in many areas"); Global Warming Basics: What It Is, How It's Caused, and What Needs to be Done to Stop It, NATURAL RE­ SOURCES DEFENSE COUNCIL, http:/ /www.nrdc.org/globalwarming/flOl.asp (follow "Is there really cause for serious concern?" hyperlink) (last visited Sept. 3, 2010) (stating that "[r]ising sea levels will lead to coastal flooding on the Eastern seaboard, in Flor­ ida, and in other areas, such as the Gulf of Mexico"). 19 A "hundred-year storm" is rainfall that statistically has a one-percent chance of occurring in a given year. See Hurricanes and Global Warming FAQs, PEW CTR. ON GLOBAL CLIMATE CHANGE, http:/ /www.pewclimate.org/hurricanes.cfm (follow "Is the frequency of hurricanes increasing?" hyperlink) (last visited Sept. 3, 2010) (stating that during the period 1998-2007, the average number of tropical storms in the North Atlantic increased to fifteen per year, up from ten per year in the period 1850-1990). 2010] WHOSE SURVIVAL? 263

really concerned about the fact that these small towns in the rural areas, whose budgets are not going up as the sea level rises, are dealing with the decline of the manufacturing industry in the area.20 Additionally, there are increases in crime21 and rising pub­ lic health costs, along with the systemic costs of having higher rates of unemployment. We're trying to help them see the links between developing climate adaptation strategies and becoming one of.the country's leaders in wetland storm bank restoration, and dealing with the agricultural runoff that is really plaguing many of those towns. One of the things that I'm most proud of right now is develop­ ing a green investment fund22 where we can make investments in environmental justice communities of color around the country. Specifically, the first project we're working on now is a national brand for urban grown produce called American City Farms.23 The goal is to aggregate local urban farm produce and create aquaponic greenhouse systems within cities around the entire country and distribute that produce within a hundred miles of where it is grown.24 We want to bring about the end of the 3,000- mile salad25 and create opportunities for local agriculture every­ where around this country. This will in turn create local opportuni­ ties for ownership through employee stock ownership programs. We are looking to launch first in the South Bronx and Detroit.26 Thank you very much.

20 DARIA KARETNIKOV ET AL., CENTER FOR INTEGRATIVE ENVIRONMENTAL RESEARCH, ECONOMIC IMPACTS OF CLIMATE CHANGE ON NORTH CAROLINA 11 (2008). 2l See, e.g., Avi Brisman, Crime-Environment Relationships and Environmental justice, 6 SEATTLE]. Soc.JusT. 727 (2008). 22 See, e.g., About Winslow: History, WINSLOW MGMT. Co., http:/ /www.winslowgreen. com/about/default.aspx (last visited Sept. 3, 2010) (example of an investment fund that integrates financial and environmental analysis, often in green markets such as renewable energy, energy efficiency, and green infrastructure). 23 Lauren Ivey, Farming on American Roofs, THE IVEY VINE Qune 30, 2010, 9:38 PM), http:/ /laureniveysvine.blogspot.com. 24 See, e.g., Alex Wilson, Growing Food Locally: Integrating Agriculture Into the Built Environment, BurLDINGGREEN.COM (Feb. 1, 2009), http://www.buildinggreen. com/au th/ article.cfm/2009I1 /29/Growing-Food-Locally-Integrating-Agriculture­ Into-the-Built-Environment/ (describing farming and gardening on vacant lands in urban landscapes across the U.S.). 25 See JAMES HowARD KUNSTLER, THE LoNG EMERGENCY: SURVIVING THE END OF OIL, CLIMATE CHANGE AND OTHER CONVERGING CATASTROPHES OF THE TWENTY-FIRST CEN­ TURY 242 (2005) (stating that fruits and vegetables that were once locally grown now travel thousands of miles before landing in grocery stores). 26 See John Gallagher, Activist Sows Seeds for Farm Co-op Owned by Worker.s, Venture Could Reap Profits for Detroit, DETROIT FREE PREss, Dec. 26, 2009, at A2 (discussing Carter's plan to develop an agricultural grower's cooperative in Detroit); see generally Sarah Wali, Urban Gardener Looks for a New Dream to Plant, THE BRONX INK (Dec. 12, 264 NEW YORK CITY LAW REVIEW [Vol. 13:257

MIRANDA MASSIE: I came to Environmental Justice two years ago after having a half-career doing more traditional civil rights litigation: racial justice in employment and education.27 The rea­ son for my change in focus was that I became convinced that envi­ ronmental justice issues are the most fundamental issues of racial and social justice that we face. They're the most essential issues of equality because what's at stake is the right to thrive as a human being and even as an organism. It's hard to think of what could be more urgent and basic than that. I was only gradually and reluc­ tantly convinced of that because I had previously-and, it now seems to me, very superficially-thought of environmental con­ cerns as the province of well-off white people who were blind to their own privilege and didn't have too much else to worry about. It was somewhat uncomfortable to be pushed off of that view, but over time I became convince9 that environmental justice was where I wanted to focus my energy and my work. I hope some of you will consider joining these efforts as well. It's tremendously sat­ isfying. It's a job in which you feel that you can make a difference on basic questions of equality in our society and, at the same time, help address the developing ecological crisis we face due to climate change,28 the level of toxins in the environment,29 and a number of other problems. New York Lawyers for the Public Interest ("NYLPI") is a great organization within which to do environmental justice advocacy, from my perspective, because it operates on a community lawyer­ ing model.30 We undertake to represent people in a way that places

2009), http://bronxink.org/2009/12/12/2294-an-urban-gardener-looks-for-a-new­ dream-to-plant. 27 Ms. Massie was lead counsel for the student inteivenors in Grutter v. Bollinger, 539 U.S. 306 (2003). 28 See, e.g., Kristie L. Ebi et al., Effects of Global Change on Human Health, in ANALYSES OF THE EFFECTS OF GLOBAL CHANGE ON HUMAN HEALTH AND WELFARE AND HUMAN SYSTEMS 39, 39 Q.L. Gamble et al. eds., 2008), auailabl.e at http:/!downloads.climate science.govI sap/sap4-6/ sap4-6-final-repon-all.pdf (updated comprehensive assess­ ment of the potential impacts of climate change on human health in the United States). 29 See Satvinder Juss, Global Environmental Change: Health and the ChaUenge JM Human Rights, 5 IND.]. GLOBAL LEGAL STUD. 121, 150 (1997) (describing severe urban health problems caused by the annual release of a million tons of air toxins into the atmosphere by industrial plants in the United States). 30 The hallmarks of community lawyering are lawyers "working collaboratively with clients, communities, and activist groups to pursue collective, multi-faceted ap­ proaches to fighting subordination and effecting social change." Sameer Ashar, Law Clinics and Coll.ectiue Mobilization, 14 CLINICAL L. REv. 355, 358 (2008) (citing Gerald P. Lopez, REBELLious LAWYERING: ONE CmCANo's VERSION OF PROGRESSIVE LAw PRACTICE ( 1992), and Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for 2010] WHOSE SURVIVAL? 265 the rights and the interests of the community into the foreground. It's a model that developed in opposition to more traditional im­ pact-litigation approaches to doing progressive legal work. On that older model, which has often been extremely useful, lawyers don't usually have an organic connection to community-based organiza­ tions or to community residents; they define a problem from the outside, litigate over it, and leave. What we do at NYLPI is different. We build lasting relation­ ships with community leaders, community-based organizations, and residents of communities suffering from environmental ra­ cism-for example, communities with an excessive number of power plants and garbage processing facilities, or with inadequate access to parks. We always struggle with ourselves to carry out our work in a way that maximizes democracy. What I mean by that is something well beyond formalities and procedures; instead, I am talking about the equality of the relationships in the room. We ac­ cept a tremendous amount of leadership from our clients. In fact, the word "client" feels too clinical and conventional to capture the nature of the relationship, which is more of a partnership than it is like a traditional lawyer-client relationship. Our environmental justice team has had the privilege of work­ ing in this manner with environmental justice organizations across New York City. We've done a tremendous amount of work with Elizabeth's organization, UPROSE,31 on solid waste and power plant siting issues, and have also have worked with the group Majora founded, Sustainable South Bronx, 32 as well as other com­ munity based organizations. We've also undertaken campaigns where we end up building coalitions from the ground up because there was no organizational infrastructure in the affected commu­ nity. In those situations, staff attorneys work with staff community

Clients to Speak, 16 N.Y.U. REv. L. & Soc. CHANGE 535, 546-63 (1987-88)). See also Barbara L. Bezdek, Alinsky~ Prescription: Democracy Alongside Law, 42 J. MARsHALL L. REv. 723 (2009) (examining how lawyers can work with communities of subordinated people and work effectively with organized and organizing communities); Ascanio Piomelli, The Challenge of Democratic Lawyering, 77 FORDHAM L. REv. 1383, 1384 n.l (2009) (extensive summary of the literature that stresses the importance of lawyers working collaboratively with, not simply on behalf of, low-income and working-class people, people of color, and their groups and communities to collectively push for social change); Shauna I. Marshall, Mission Impossibk?: Ethical Community Lawyering, 7 CLINICAL L. REv. 147, 147-48 (2000) (discussing the friction between the multifaceted community lawyering approach and the ethical obligations of a lawyer). 31 UNITED PUERTO RrCAN ORGANIZATION OF SUNSET PARK, http:/ /www.uprose.org (last visited Dec. 27, 2010). 32 SUSTAINABLE SOUTH BRONX, supra note 11. 266 NEW YORK CITY LAW REVIEW [Vol. 13:257 organizers to build up that infrastructure so that an issue can be effectively tackled. Another thing that should be emphasized about community lawyering is that, in contrast to more traditional models of legal services, much of what we do is neither impact litigation nor direct legal services. For example, we also conduct legislative lobbying, community organizing, public outreach, and educational cam­ paigns. Sometimes these activities come back around to feed litiga­ tion, but we don't start from the perspective of whether we can litigate. This gives us the opportunity for a broader analysis of, and engagement with, the range of environmental justice issues people face. The social and environmental problems of New York City communities are not limited to or defined by currently actionable claims. Because the law, in isolation, is a distorting and narrowing lens through which to view society, we can better address commu­ nity priorities if we set the lens aside in understanding the priori­ ties and consider it only later, instrumentally, as we consider different options 'for action and assistance. An example of NYLPI's community lawyering approach in­ volves an ongoing campaign to identify and eliminate polychlorinated biphenyls, or PCBs, in public schools.33 The cam­ paign started when the New York Daily News, 34 following up on work done by Bob Herrick at the Harvard School of Public Health and Daniel Lefkowitz in Yorktown, New York, ran a series of stories demonstrating the presence of this potent toxin in schools across New York City. 35 Studies have shown that PCBs can contribute to the risk of acquiring serious health conditions, including asthma, diabetes, childhood leukemia, neurological problems, and im­ mune system damage. 36 The PCBs campaign has involved building a coalition of par-

33 See New York Lawyers for the Public Interest, Progress on Toxic Schools: City to Address Toxic Caulk Following Suit by Bronx Mother, PRo BONO MKITERS, Winter 2010, at 3, availab/,e at NEW YoRK LAWYERS FOR THE PUBLIC INTEREST, supra note 8 (follow "Press & Publications" hyperlink; then scroll down the page and follow "Pro Bono Matters: Winter 2010" hyperlink). 34 Bill Egbert, Toxic Fight Over Schools In Bronx, NEw YoRK DAILY NEWS, April 13, 2009, http:/ /www.nydailynews.com/ny_local/bronx/2009 /04/l 4/2009-04-l 4_toxic_ fight_over_schools_in_bronx.html. 35 See Robert F. Herrick, PCBs in School-Persistent Chemicals, Persistent Problems, 20 NEW SOLUTIONS, no. 1, 2010 at 115; Dr. Daniel Lefkowitz, PCBs: MANDATORY TESTING IN SCHOOLS, http://www.pcbinschools.org (last visited Dec. 29, 2010). See also Valerie Watnick, PCBs in Schools and Corporate Responsibility for Remediation: Yorktown Central School District v. Monsanto Corporation, 33 ENVIRONS ENVTL. L. & PoL'Y J. 231 (2010). 36 See Polychlorinated Biphenyls (PCBs): Health Effects of PCBs, U.S. ENVIRONMENTAL 2010] WHOSE SURVIVAL? 267 ents in the Bronx, the New York City Coalition for PCB-Free Schools; lobbying Congress, the New York State Legislature, and the New York City Council; conducting outreach to local education officials and Parents' Associations; and working to connect the New York City Coalition for PCB-Free Schools with parents and advo­ cates across the City and with technical experts.37 The Coalition's organizing efforts, together with the first litigation nationwide chal­ lenging the presence of PCBs in schools, filed on behalf of one of the Coalition's leaders, led the Department of Education, notori­ ous among parents for its unresponsiveness to their concerns, to enter into a consent agreement with the Environmental Protection Agency.38 The DOE is now conducting a pilot study to devise a city­ wide plan to identify and redress PCB contamination in schools.39 When doing community lawyering campaigns, which are by defini­ tion locally based, it's important to think expansively and ambi­ tiously about larger community impacts and the effects such campaigns can have on institutions like the DOE and EPA. It's also important to anticipate how difficult it can be to build campaign momentum from the ground up. First, when you are in that position, it's usually because there is no existing community­ based organization or community advocacy infrastructure that's oriented toward the problem you're being asked to help address. Second, and in turn, that absence itself often expresses the inher­ ent difficulty of organizing around a particular issue. In the case of emerging environmental health threats like PCBs in schools, it's very hard for people to grapple with health risks that are serious but not immediate. Environmental health ef­ fects are compounded and combined over the course of childhood and adolescence and into adulthood.40 So you're talking about la­ tent impact and risk, which can be very difficult to organize

PROTECTION AGENCY, http://www.epa.gov/ osw/hazard/ tsd/ pcbs/pubs/ effects.htm (last visited Dec. 29, 2010). 37 Dr. Daniel Lefkowitz, Coalition far PCB-Free Schools, PCBs: MANDATORY TESTING IN ScttooLS, http://www.pcbinschools.org/Coalition%20for%20PCB-Free%20Schools. htm (last visited Dec. 29, 2010). 38 Consent Decree and Final Order, Matter of City of New York, No. TSCA-02- 2010-9201 (EPA Reg. 11,Jan. 13. 2010). 39 Mireya Navarro, City Agrees to Conduct a Study on the Risks of PCBs in Schools, N.Y. TIMES, Jan. 20, 2010, at A19. The EPA has since stated that it would inspect New York City public schools for PCB contamination and would direct the City to conduct PCB abatement for any fixtures or construction materials found to leak the toxin. See Mireya Navarro, City Sparring with E.P.A. Over a Plan to Check Schools far PCBs, N.Y. TIMES, Dec. 21, 2010, at A28. 40 See generally Kim N. Dietrich et al., Princip!,eS and Practices of Neurodevelopmental Assessment in Children: Lessons Learned from the Centers far Children's Environmental Health 268 NEW YORK CITY LAW REVIEW [Vol. 13:257 around, given that the communities with which we work face im­ mediate and harrowing problems, particularly in this economy. En­ vironmental health risks can seem abstract-like luxury issues. And at the same time, paradoxically, there is parents' terror, and some­ times consequent denial, about the impact of environmental toxins on their children. These anxieties are well-placed: such impacts can be irreversi­ ble and profound, expressed over decades. In ·addition, 'Ye con­ front a reactionary body of law and policy that fundamentally fails to protect against these harms. These failures of U.S. toxics law and policy truly threaten the health of human residents of North America, and in a familiar, disturbing manner, the distribution of harm is sharply unequal along the lines of race and class. Environ­ mental health problems affect wealthier and whiter communities as well, but the connection of race and class to the distribution of harm is wholly unacceptable in a society that purports to be demo­ cratic and egalitarian. In sum, while various factors combine to make organizing around children's environmental health a challenge, the urgency of the issues provides jolts of motivation, as do the profound re­ wards of working in partnership with community members en­ gaged in struggle with those same challenges. I hope the PCBs campaign has provided a concrete example of how community lawyering and environmental justice can work in practice.41 My time is just about up but I just want to say again how won­ derful it is to see so many of you here and to encourage people to consider this as a path. It's profoundly rewarding and satisfying, and I hope that we'll be able to talk about it more after the panel. Thank you. DAVID PALMER: I thought I would start by giving my per- and Disease Prevention Research, 113 ENVTL. HEALTH PERSPECTIVES 1437 (2005) (discuss­ ing long-term neurodevelopmental consequences of children exposed to PCBs). 41 For an overview of law and policy on school siting as it relates to environmental harms and a brief survey of state siting legislation, see Sandra Sutak, Green Schools, Brown Fields: School Siting Legislation Provides a Weak Foundation, 21 TuL. ENVTL L.]. 427 (2008). For examples of unsuccessful constitutional law claims brought by parents of children who were to be placed in schools sited on former industrial sites that con­ tained various contaminants, see Lucero v. Detroit Public Schools, 160 F. Supp. 2d 767 (E.D. Mich. 2001) and Hartford Park Tenants Ass'n v. R.I. Dep't. ofEnvtl. Mgmt., No. 99-3748, 2005 WL 2436227 (R.I. Super. Ct. Providence Cty. 2005). For a discussion of the Hartford Park case and a brief showing of the national breadth of the school siting problem, see Michelle A. Westcoat, Once a Landfin Now a Neighborhood School, and That's OK: Hartford Park Tenants Association v. Rhode Island Department of Environ­ mental Protection, 39 RUTGERS LJ. 739 (2008). 2010] WHOSE SURVIVAL? 269 sonal definition of what environmental justice is and explain how it has evolved over time. I'll also talk about some of the work that I've been involved with so it'll make sense when I talk about the issues of lawyering and community lawyering and environmental justice and what that means to me. I started my career at the New York Public Interest Research Group as an organizer. It's a bit of a white-led organization-and, I think, a great organization. At the time I thought of environmental justice simply as working to help communities of color that were disproportionately burdened. Our efforts focused on childhood lead poisoning and working to pass a law in New York City that would address high rates of childhood lead poisoning.42 It's some­ thing that should have been eradicated a long time ago, but thousands of children were still being lead-poisoned and roughly 95 percent of those children were black, Latino and Asian. 43 The disproportionate impact of lead poisoning on communities of color reinforced the idea that environmental hazards target certain communities. The community organizing campaign had legislative and legal components. Ultimately the litigation strategy was successful in get­ ting the old lead law repealed.44 And the organizing work we had done set us up to pass legislation considered the most progressive lead law in the country.45 It was very exciting. And it probably couldn't have happened without that dual strategy. I went to law school after that year and following law school went to work at New York Lawyers for the Public Interest, where I worked with Miranda and was inspired by NYLPl's community-lawy­ ering model. The work involved law and organizing and I studied 46 law and organizing here at CUNY Law under Sameer Ashar , so I had thought a lot about those issues. And for those who don't

42 New York City Childhood Lead Poisoning Prevention Act of 2003, NEW YoRK, N.Y., CnY ADMIN. CODE, tit. 27, ch. 2, §§ 27-2056.1-27-2056.18 (2004 N.Y. Leg. Pub­ lishing Co. Supp. 2009), available at http://www.nyc.gov/html/hpd/downloads/pdf/ lead-local-local 1-2004. pdf. 43 See Bruce P. Lanphear et al., Racial Differences in Urban Children's Environmental Exposures to Lead, 86 AM.J. PuB. HEALTH 1460 (1996) (finding that differences in hous­ ing conditions and exposures to lead-contaminated house dust contributed strongly to racial disparities among urban children's lead levels). For general statistics on childhood lead poisoning in New York City, see Childhood Lead Poisoning, NEW YoRK CnY DEP'T OF HEALTH AND MENTAL HYGIENE, http://www.nyc.gov/html/doh/html/ stats/lead.html (last visited Sept. 3, 2010). 44 NEwYoRK, N.Y., Local Law No. 38 (1999), repealed by NEwYoRK, N.Y., Local Law No. 1 (2004). 45 See supra note 42. 46 Sameer Ashar is Associate Dean for Clinical Programs and Associate Professor of 270 NEW YORK CITY LAW REVIEW [Vol. 13:257 know, Sam Sue47 qnd Eddie Bautista48 were the founders of that model at NYLPI, so it was very exciting to be a part of that. I called Eddie when I was heading over there but he took off maybe a week before I started working there, which was disappointing. We never had a chance to work together but he'~ a legend in many ways, in terms of his successes in New York City and also for founding this model that I love, Miranda loves, and which is a good model for law and organizing work. 49 Now, I'm the Interim Director of the Center for Working Fam­ ilies, which is a not-for-profit think-and-do tank that puts together policies, convenes people to help, craft policies, and then serves as a transmission belt to connect those issues with powerful political players and elected officials.50 So we're not just writing reports and placing them on a shelf, but working to be responsive to the politi­ cal climate and enact real, positive change. At NYLPI, I focused on the siting of schools on contaminated properties.51 At the Center for Working Families, the big project that I focus on is called Greenjobs/Green NewYork.52 This policy offers money for homeowners to retrofit their homes to improve energy efficiency, reduce home energy costs, combat climate change, and create jobs.53 This policy is especially important be-

Law at CUNY School of Law. See Faculty & Staff, CUNY SCHOOL OF LAw, http:/ /www. law.cuny.edu/faculty-staff/SAshar.html (last visited Oct. 29, 2010). 47 Sam Sue is Director of Career Planning and Adjunct Professor at CUNY School of Law. See Career Planning, CUNY ScHOOL OF LAw, http://www.law.cuny.edu/career/ sue.html (last visited Oct. 29, 2010). 48 See Leadership Talks Archive: Eddie Bautista, New York Lawyers for the Public Interest, LEADERSHIP FOR A CHANGING WORLD (May 21, 2004), http://www.leadershipfor change.org/talks/archive.php3?ForumlD=26 (describing the philosophy behind NYLPI's community lawyering model). 49 See A Peofle's Organiwr Fights to Prevent Community Dumping, LEADERSHIP FOR A CHANGING WoRLD, http://www.leadershipforchange.org/awardees/awardee.php3?ID =103 (last visited Sept. 3, 2010) (granting awards to Eddie Bautista and NYLPI). so CENTER FOR WORKING FAMILIES, http://www.cwfny.org (last visited Sept. 10, 2010). 51 See Equal justice Works Fellow, Class of 2006, EQuALjusncE WoRKS, http://www. equaljusticeworks.org/ communities/alumni/ profiles?q=node/ l 4&pid= 15079 (last visited Sept. 24, 2010). 52 Green jobs, CENTER FOR WORKING FAMILIES, http://www.cwfny.org/issues/green­ jobs/ (last visited Sept. 24, 20iO). 53 CENTER FOR AMERICAN PROGRESS, CENTER FOR WORKING FAMILIES & HALF IN TEN, GREEN Joss/GREEN HOMES NEw YORK: EXPANDING HoME ENERGY EFFICIENCY AND CRE­ ATING Goon Joss IN A CLEAN ENERGY EcoNOMY (Emmaia Gelman ed., 2009), available at http:/ /www.americanprogress.org/issues/2009/05/pdf/ghgjny_vlO.pdf. One ave­ nue for financing these programs was through the PACE (Property-Assessed Clean Energy) program. See Letter from Emmaia Gelman, Policy Director, Center for Work­ ing Families et al., to Frank Murray, President, NYSERDA (New York State Energy Research and Development Authority) et al., at 4 (July 13, 2010), available at http:// 2010] WHOSE SURVNAL? 271

· cause a huge barrier to folks interested in making energy efficiency improvements is lack of upfront capital.54 So we created a state pro­ gram through legislation whereby private investors provide home­ owners with the money to retrofit their homes, and this investment allows homeowners to lower energy costs over time. 55 The savings on homeowners' monthly utility bills are recaptured in part; some of that savings is returned to the homeowners while another por­ tion goes to pay back the investors56-so they're making a little bit of money, but hopefully not too much! This program creates jobs for the people who perform the retrofitting work, and allows com­ munities that have been traditionally shut out of the building trades to access these jobs.57 I was asked to speak on whether in my work I've identified inadequacies in environmental regulations that impact the com­ munities we've organized. The answer is yes. After being ap­ proached by a community with a need, we'd ask ourselves, Is someone breaking the law? And oftentimes we'd find that the state

www.greenforall.org/what-we-do/building-a-movement/community-of-practice/city­ wide-retrofitting-resources (click on the "Common Agreements on Green Jobs-Green NY Job & Contracting Standards" hyperlink) (last visited Nov. 5, 2010). The PACE program "seek[s] to foster lending for retrofits of residential or commercial proper­ ties through a county or city's tax assessment regime." Statement, Federal Housing Finance Agency, FHFA Statement on Certain Energy Retrofit Loan Programs (July 6, 2010), available at http:/ /www.fhfa.gov/webfiles/15884/PACESTMT7610.pdf (last vis­ ited Nov. 5, 2010). It operates by placing a first lien on a property, meaning that if a borrower defaults, the lien is paid off before the mortgage. See id. Subsequent to this panel discussion, the Federal Housing Finance Agency (FHFA), which oversees gov­ ernment-chartered mortgage finance companies Fannie Mae and Freddie Mac, re­ stricted the use of PACE because the liens that the program placed on properties "raise[] significant safety and soundness concerns that mortgage lenders and inves­ tors must consider." Id. Now, to mitigate the risk posed by the PACE liens that take priority of payment over mortgages, the FHFA requires that borrowers have sufficient equity in order to pay off a PACE obligation before obtaining a mortgage. See Bulle­ tin, Freddie Mac, Mortgages Secured by Properties with an Outstanding Property As­ sessed Clean Energy (PACE) Obligation, No. 2010-20 (Aug. 31, 2010), available at http://www.freddiemac.com/sell/guide/bulletins/pdf/blll020.pdf (last visited Nov. 5, 2010). 54 See 2009 N.Y. Sess. Laws 1251 (McKinney) (stating iefiislative findings that a "lack of affordable and accessible financing for many owners of residential properties, small businesses and non-profit organizations has hindered progress in fully realizing the promise of [clean energy] technologies."). 55 N.Y. PuB. AuTH. LAw § 1892 (McKinney 2007). 56 See id.§ 1892(6). 57 See id. § 1894(2) (b) (stating that authorities shall "give preference in awards to applicants that include significant participation by minority and women owned busi­ ness enterprises and/or to applications to serve economically distressed communities"). 272 NEW YORK CITY LAW REVIEW [Vol. 13:257 or city government. was not breaking the law, but that the law was itself problematic. An example of this is exhibited by New York City's ability to lease buildings for city schools on contaminated property and cir­ cumvent statutory processes that apply to new school construc­ tion. 58 If the city built a school on a toxic site, it would be subject to regulatory processes and checks.59 When they lease a building, however, they don't have to give any notice to the community, they don't have to go before the City Council, and they don't have to submit to the state's environmental review process.60 We came upon this due to our representation of a client from Soundview in the Bronx who discovered this problem when she saw a school being built across the street on what she knew was a contaminated property-a factory that was being rehabbed on a contaminated property. The client went across the street and said, "What's going on here?" They replied, "We're building a school." And so she went to the local community board and said, "I can't believe you didn't tell us about this. How come you didn't hold a hearing? You're supposed to do that!" It turned out that the com­ munity board had no idea that it was happening. When she came to NYLPI, we looked into the legality of the school's siting and found the School Construction Authority was generally in compli­ ance with existing regulations. Essentially, the Authority said, "We don't have to. There's a loophole in the law." I won't get into what that loophole is 61 but closing this loophole is very important to the community.62 We responded by drafting legislation to close that loophole and advocating before the State Legislature with a num­ ber of communities around the city that were facing similar problems. Unfortunately, it failed, mainly because of complicated politics. We're still working on it.63

58 Assemblywoman Catherine Nolan & Councilman Eric Gioia, Contaminated Fac- tory Last Place to Put a New Schoo~ N.Y. DAILY NEws, Oct. 2, 2007, at 6. 59 N.Y. COMP. CODES R. & REGS. tit. 8, § 155.5 (2008). 60 N.Y. Pus. Aum. LAw § 1730 (McKinney 2007). 61 Park S. Tenants Corp. v. Bd. of Educ. of the City of N.Y., 208 A.D.2d 394 (1st Dep't 1994) (renovating of premises is neither new construction nor an addition to an education facility, thus requirements for notice, public hearings and site plan fil­ ings pursuant to New York Public Authorities Law § 1731 are inapplicable). 62 Oversight Hearing on Mayoral Control and School Governance, N.Y.C. Council Comm. on Education, Mar. 3, 2008 (statement of David Palmer on behalf of New York Lawyers for the Public Interest), available at http://www.nylpi.org/images/FE/ chain234siteType8/site203/client/EJ - 03.03.08_NYLPI Testimony on Leasing.pdf. 63 For documents relating to NYLPI's work on school siting, see NEW YoRK LAWYERS FOR THE PUBLIC INTEREST, supra note 8 (follow "Legislative and Court Papers" hyper­ link; then follow "Environmental Justice" hyperlink) (last visited Sept. 10, 2010). 2010] WHOSE SURVNAL? 273

On a similarly contaminated site, the city was required only to clean up one portion of the site, but not the remainder. Nor did the city adequately explain how it would monitor the remaining contamination before siting a school on that location. And even where clean-up was required, the technical details of what would be a sufficient "clean-up" required special knowledge, often availa­ ble only by hiring expensive consultants. Communities don't often have that luxury. So once again, the law was lacking. I actually spent a lot of time pushing City Hall to provide money to our clients so that they could hire consultants. Consul­ tants could explain, "Here's what the contaminants are, here's where there's a problem, here's what the state and city are plan­ ning to do about it, and here's why that's not good enough." Arti­ cle 10 monies-an expired law64 that provided funds for communities addressing local power plant siting concerns-don't exist for school siting, so this money had to come from other sources. The lack of funding remains a keen problem in communi­ ties fighting school siting decisions. On the issue of litigation in community lawyering: litigation is often seen as an incomplete remedy.65 And it often is. For exam­ ple, when the clients came to me in the Bronx regarding the Mott Haven66 site, they simply expressed concern about a proposed school on contaminated property. So the first thing we had to do was figure out how to address the concern. And in that case there was a twenty-day school siting process with an upcoming vote in the City Council. The effort around the site approval didn't involve liti­ gation until much later on. And so it was extremely important to be able to engage in that political process. One can either connect with sophisticated community clients through community organi­ zations or have an internal organizing and political operation to properly assist clients. The central point is that litigation will not solve everything because there are these holes in the current statu­ tory and regulatory schemes.67 It's important to be able to engage

64 N.Y PUB. SERV. LAw § 164(16) (McKinney 2000) (repealed 2003). 65 See Piomelli, supra note 30, at 1385-86 (describing community lawyers as "deeply skeptical of isolated litigation conducted as a stand-alone approach to social change, unconnected to and uninformed by coUective public action."). 66 See Bill Egbert, just a Toxic Mixup-City Schools Site 'Violated' State Law, N.Y. DAILY NEWS, Nov. 17, 2008, http:/ /www.nydailynews.com/ny_local/bronx/2008/l l/18/ 2008-l l-l 8_just_a_toxic_mixup_city_schools_site_ vi.html. 67 See Rose Cuison Villazor, Community Lawyering: An Approach to Addressing Inequali­ ties in Access to Health Care for Poor, Of Color and Immigrant Communities, 8 N.Y.U. J. LEGIS. & PuB. PoL'Y 35 (2004) (discussing community lawyering as effort to "de-em­ phasize litigation as the primary tool for advancing social justice."). 274 NEW fORK CITY LAW REVIEW [Vol. 13:257 in the political process, to understand how the political process works, and to be able to organize people to actually influence that political process. The other obvious thing about litigation being insufficient-if you're a community lawyer and concerned about building power in communities-is that litigation is non-participatory for a vast num­ ber of community members. And this brings up my evolving defini­ tion of environmental justice. I'm sure Elizabeth will talk about this, but it's notjust about addressing a disproportionate environ­ mental burden in certain communities. It's also about building power in those communities, having community-driven decision­ making and meaningful community involvement. In litigation it's very difficult to do that due to the inherent power imbalance be­ tween attorney and the community, where the role of the attorney is perceived as "decision-maker," and because the attorney is the one who directly interacts with. the power-the courts. But none­ theless, I think litigation can also be a very real opportunity for community lawyers to teach clients about the law, to help organize clients and use the media and to just keep an issue alive so you can do further organizing. In terms of the roles that community members, policy makers and activists play in identifying and framing environmental justice issues, I think what's essential is being closely connected to your clients because they will define the issues for you. Affected commu­ nities are uniquely positioned to tell you what the community's concerns are, as well as when it's time to negotiate and when it's time to keep fighting. When you're in the political world a lot of times you will go into a negotiating room and based on your expe­ rience-and the longer you're around the more cynical you are, by the way-you will unwittingly sell your clients' interests short. Or you may choose a path based on what you see as the strength or weakness of your negotiating position, as opposed to what the cli­ ent actually wants to fight for based on their worldview and your counsel. I had a powerful experience with a client that informs this point. We're all sitting around a table and the City had just offered us a number of concessions on a particular site. And it had been so difficult to squeeze those small concessions out of the City that my advice at the time was maybe we should just take the concessions. To me, they seemed pretty good. And no one looked particularly happy with my advice and we engaged in a conversation for a pe­ riod of time and finally one client said, "No, no, we're not going to 2010] WHOSE SURVIVAL? 275 do this." She called her son over and she pulled up her son's sleeve and she said, ''You see this rash on my child?" She's like, "This is unacceptable and we need to keep fighting. We're going to turn this down and we're going to keep going." And it was like that. I agreed, and everyone kind of agreed to keep fighting. And the ob­ vious point is that her child was attending that school and she lived with the fear of the potential danger, whereas I would go home every night and not be there. It was an extremely important lesson, and I think that's a really important role that the community can play: keeping you in check as an attorney. They're the ones who are experiencing it. Finally, I can't stress enough that I think it's important to rec­ ognize that while the political process is often difficult and turns many people away, understanding how to navigate political processes is vital to strategic success. I had a mentor who used to say, "Politicians respond to two things: money and pain. And we don't have any money." So, if your clients have a need that requires engaging in a political process, you need to organize and use the media, because that's the pain that we can bring. The last question is one that I'd like to leave a little bit open, because I think it will be an interesting thing to discuss. What role should lawyering play in community-building? I have to tell you that answering this question has always been a real challenge. Mi­ randa described community lawyering at NYLPI. She suggested that the process there is to build lasting relationships with commu­ nities. I think sometimes that works, but I also feel like sometimes that doesn't work. When I worked at NYLPI, there were a ton of clients or potential clients coming to us who needed help and we had to make decisions sometimes about using our limited re­ sources. At times, we had to step away from the community if we felt something had moved along enough. Elizabeth and I have had conversations over the years about what the appropriate role of a community lawyer is, and it's tough. If you're at a community-based organization like UPROSE,68 for example, and your mission is to build leadership within a community, you need to go to that com­ munity to understand their issues and then stick around for the long haul; that mission is kind of clear. I think that when you're an attorney, your mission is less clear. I've thought about, when do we move on to help the next-per­ son and leave this community? If I have a twenty-day political pro­ cess to engage in and we need to put together a news conference,

68 See supra note 31. 276 NEW YORK CITY IA W REVIEW [Vol. 13:257 how much time can I put into working with the clients so they un­ derstand how to deal with a news conference and be prepared to take the lead? Or do I take the lead at the news conference to talk about the issues? The school siting process is just one little example that I think was challenging. We were working with a short political process and against a four-month statute of limitations. These things can happen very quickly. It would feel equally arrogant for me to suggest that the community slow down, and that what they really need is for me to help them build leadership within their community. I didn't see it that way; they came to me and asked for help to deal with a school that was being sited. So, I often thought about winning first, and community-building second. I'm painting it in black and white terms, but I actually think it's pretty complex. I've tried to find a balance but I think there is no clear answer and this question poses an interesting point for discussion. In closing, in terms of advocacy, I'll say again: the more tools you have for social change, the better. The political system can be screwed up and lack integrity. The legal system can be screwed up and lack integrity-for example, Bush v. Gore69 and Citizens United. 70 And organizing can be really hard at times. Learning how to use these tools can be consuming, but the more you know about each the more successful you'll be. And regarding community lawy­ ering: stay community-minded and stay race conscious. Thanks. ELIZABETH YEAMPIERRE: Thank you for inviting me. This is a very diverse panel. This panel has a consultant, two lawyers and an environmental justice activist, and everyone here plays a very different kind of role in trying to advance an environmental justice agenda. For this reason, I want to give you a little background about what I'm doing now, who we are as a movement, how we do it, and what your role can be. I think you're here because you care deeply about how these issues affect the most vulnerable communities. I think Miranda had it right. One of the things that I say often is that you can't fight against police abuse; you can't fight for housing, for social services; you can't fight for a just education, unless you can breathe. There is nothing more fundamental than the right to breathe; that's how serious environmental justice is. We are now being asked to deal with issues as complex as putting together a climate adaptation plan and a community resilience effort that gives the community an opportunity to bounce back when that happens.

69 Bush v. Gore, 531 U.S. 98 (2000). 7° Citizens United v. Fed. Election Comm'n, 558 U.S._, 130 S.Ct. 876 (2010). 2010] WHOSE SURVIVAL? 277

The reason we are able to do this work is because of who we are historically. I'm dedicating this to Sojourner Truth71 because you really need to know the people who are doing this kind of work. The people in New York City, Detroit, L.A., the Southwest and all over the country who do this work are people with little or no resources. For years these people have been transforming their landscapes and their lives. They have been doing incredible things-everything from pushing policy to stopping the siting of power plants to doubling open space. Moreover, many of them are people without a formal education. That type of education on its own doesn't make you smart. We all know some knuckleheads who are really well-educated, and then we also know that there are some brilliant people out there in prison that are actually able to do cir­ cles around you in putting together a legal brief. So we've got some brilliant people in our community and as we always say at UPROSE, "Our people are not at risk, they are at potential." That's what you're dealing with in environmental justice and it's important that you understand that. It is in your interest to say that environmental justice is about the disparate impact of environmental burdens on communities of color. We refer to them as low-income communities too, but we always say communities of color first because if you live in a com­ munity of color, chances are that there is an environmental burden living next to you regardless of income.72 Out in L.A. when you go by those oil rigs, that area is called Black Hollywood. 73 Even Black Hollywood isn't safe from the environmental burdens. So, environ­ mental justice is an issue that affects both communities of color and low-income communities. In addition, it's about this basic tenet of environmental justice:

7I Sojourner Truth was an abolitionist and former slave who spent her life organiz­ ing in support of African-American communities, as well as women's rights and prison reform, and against capital punishment. For leadership by women of color in environ­ mental justice, see, e.g., Dorceta E. Taylor, Women of Color, Environmental Justice, and Ecofeminism, in EcoFEMINISM: WOMEN, CULTURE, NATURE 38 (Karen J. Warren ed., 1997). 72 See Robert D. Bullard, Paul Mohai, Robin Saha, & Beverly Wright, Toxic Wastes and Race at Twenty: Why Race Still Matters After All of These Years, 38 ENVTL L. 371, 372 (2008) (finding that "[p]eople of color are particularly concentrated in neighbor­ hoods and communities with the greatest number of facilities and racial disparities continue to be widespread throughout the country. Moreover, hazardous waste host neighborhoods are composed predominantly of people of color. Race continues to be the predominant explanatory factor in facility locations and clearly still matters."). 73 See Roy Rivenburg, Well, Well: Oil Rigs Return, L.A. TIMES, Nov. 28, 2005, at Bl ("New technology and rising demand for petroleum are fueling a comeback of drills in the Southland, where they once numbered 33,000"). 278 NEW YORK CITY LAW REVIEW [Vol. 13:257 we speak for ourselves. We've got this. My husband and I are the sons and daughters of the civil rights movement. We are connected to the struggle for civil rights. We had opportunities, despite where we came from. We were both displaced as children. Recently at a conference in Seattle I was asked, "What happened to all of the people who were displaced?" What actually happened to some of the children of color who were displaced is that they came back to their communities with law degrees, planning degrees, and atti­ tude. We could not believe th~t this sort of displacement had hap­ pened to our families. These are the very same families that are being displaced right now by a lot of our environmental successes, i.e., our greenways, our waterfront parks, et cetera. All these envi­ ronmental amenities that we brought into our community are now being used by developers to displace our communities. That is the painful reality we are now in. So, we're dealing with all of these really complex things. Law­ yers play a very important and specialized role in this system. It is real easy to have this dream and say, "Oh my god, I wanted to go to law school to help these people." You may have these '70s ideas grounded in the civil rights movement. Nevertheless, our people cannot be passive recipients of your services. Our people are at the table doing the planning, the deciding, and affecting the legisla­ tion. They decide the goals and the really important role that law­ yers can play. So, when you think about it, think about the role that attorneys played in New Orleans after Hurricane Katrina. They were dealing with that which had never happened before. People weren't just being displaced; there were same-sex couples that couldn't access their property or their partner's remains.74 So, there is a tremendous importance for lawyers to develop skills that are going to address everything that will come out of climate change-things you might not even imagine-and as Katrina showed, these things will definitely come. Every state is now com­ ing up with a climate action plan and New York State is well behind the curve. I am going to stop and tell you about some of the different hats I wear because I want you to understand how complex the issues are. It requires people like you to think critically and cre­ atively about how to best provide your services. I am chairing the

74 See Mandy Carter, Southerners on New Ground, in WHAT Lrns BENEATH: KATRINA, RACE AND THE STATE OF THE NATION 54, 56 (20"07) (discussing response to Hurricane Katrina by the Lambda Legal Defense and Education Fund, the National Youth Advo­ cacy Coalition and the National Center for Tra11sgender Equality). ' 2010] WHOSE SURVIVAL? 279

U.S. EPA National EnvironmentalJustice Advisory Council and I'm also President of the New York City Environmental Justice Alliance. It's important that you know that because the environmental jus­ tice leadership met with the Obama Administration. We met with the White House Council on Environmental Quality; we met with Lisa Jackson, who appointed several assistant administrators from the environmental justice movement. The head of the CEQ comes out of the environmental justice movement, and Hilda Solis, the Secretary of the Department of Labor, comes from the environ­ mental justice movement. 75 In other words, environmental justice is a priority in this administration. It is a priority because they want to make sure that they address the most vulnerable communities. You should know that all over the country there are these organiza­ tions that are not only driving a national transportation equity agenda, but are doing work on the ground that is powerful and transformative. Those are going to be the places where ydu're going to be working and you're going to be providing services. And when you're privileged, it is so hard to do. I always compare it to giving up the cab. You know I hail the cab, but it stops in front of you, the cab wants to take you and not me and it's raining outside and for that split second you have to figure out whether you're going to give up the cab. That's what dealing with anti-racism is; that's what dealing with privilege is, and you have .it. And you have to recog­ nize that you have it and there are things that you bring to the table that are really important. Remember that environmental remediation is the other side of environmental justice.76 Environmental justice communities have all of the burdens and we lack a lot of the amenities. If you ever went on a toxic tour through any of our neighborhoods, you would know when you're in a privileged community and you would know when you are not because privileged communities have all the goodies, right? If you actually come from that kind of a background, you

75 Hilda Solis is the 25th United States Secretary of Labor, serving "in the Obama Administration. Meet Secretary of Labor Hilda L. Solis, U.S. DEP'T OF LABOR, http:// www.dol.gov/ _sec/welcome.htm (last visited Sept. 3, 2010); see also Stt'.ven Green­ house, As Labor Secretary, Finding Influence in Her Past, N.Y. T1MEs,July 6, 2009, at All. 76 See About the Office of Environmental &mediation, NEW YoRK CITY OFFICE OF ENVI­ RONMENTAL REMEDIATION, http://www.nyc.gov/html/oer/html/about/about.shtml (last visited April 14, 2010); Division of Environmental &mediation, NEW YoRK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, http://www.dec.ny.gov/about/627. html (last visited Sept. 3, 2010). 280 NEW YORK CITY LAW REVIEW [Vol. 13:257 know. It means that you are committed to environmental remedia­ tion. I think you are because you're in this room. There is no bet­ ter way of building stakeholders and making sure that there's indigenous leadership. When I think of indigenous leadership I think of intergenerational indigenous leadership. We have young people on our Board and on our staff. We're having the first youth summit for young people of color on climate change this spring on April 16th and l 7th.77 This is really important because the conver­ sation about climate change and all of the conferences on climate change have excluded young people of color. You've got Power Shift and all of these different groups get­ ting a lot of money. 78 These groups are speaking about environ­ mental justice to young people in our communities who are actually the ones doing the work. So we decided we wanted to cre­ ate a space for our young people, because our young people are going to be impacted by this. They have to exercise leadership and they don't have to wait. They can do that now. All of this stuff is really difficult. It's also really hard to hear that you can only do it this way when you want to do something really good. But it can be really rewarding. I have had a lot of fights with Dave, but I think that as a result of those arguments we've come a long way towards our commitment to self-transformation and our commitment to just relationships. When you work with someone who has a good heart and really is committed, that per­ son is going to reflect on their commitment and is going to say, ''You know, these are some things that I have to change." My job is to be a worrier. My job is to push the envelope and to be difficult, to get in people's faces sometimes. I have to sort of pull back, too. Sometimes I have to say, ''You know, the brother is really trying to do the right thing. And I need to handle this differently." So it is a lesson for all of us about how we work with each other. This may sound like really soft stuff, but it's actually hard. You can get into law books, you can figure out what rules, what regula­ tions, what codes; you can crank out all kinds of legal briefs that are going to benefit our community. But if you can't work in the community in a way that is respectful, and help to facilitate local leadership instead of supplanting it, then you're not going to be

77 UproseSummit, Volunteers needed. Great way far adults and youth to get involved!, NYC CLIMATEjusTICE YoUTH SUMMIT (April 6, 2010, 9:30 AM), http://uproseyouth summit.blogspot.com. 78 See About, ENERGY ACTION COALITION, http://energyactioncoalition.org/about (last visited Oct. 1, 2010). Power Shift was a series of youth environmental summits held in 2007 and 2009 by the Energy Action Coalition. Id. 2010] WHOSE SURVIVAL? 281 able to do meaningful work in the environmental justice movement It's not as easy as you think. Think about who you are as law students. Think about how you get selected. It means you have a certain sense of who you are. You're not suffering from low self­ esteem, right? So for you to go into a room and be told by commu­ nity members, "We got this," must be really difficult. I can tell you that as an attorney myself-and I'm a Puerto Rican attorney­ when I walk into a room, people give me tremendous deference, but it's still my responsibility to listen actively with all my senses. When we worked to try to take down the Gowanus Expressway and to challenge the State Department of Transportation, the best recommendations about what the alignment on the corridor was going to look like came from people in the community. We would never have thought of some of the things they recommended. They understood it because they lived there, they worked there, they send their children to school there, they work there in the manufacturing zone. Those are things that are important. So what's coming down? What kinds of things are we dealing with? We're dealing with the issue of green jobs, which you hear about a lot. The issue of green jobs is really being defined for us. It's being defined by groups like the Apollo Alliance79 and the mainstream environmentalists and they're focusing really on en­ ergy. They're focusing on how to reduce carbon.80 For our communities, it's really important for us to reduce noxious co-pollutants. The focus on reducing carbon is really tak­ ing attention and resources away from looking at the co-pollutants that get trapped in the narrow air passages. These co-pollutants are actually killing our people. The environmental justice movement does not support cap and trade.81 I have information on the Environmental Justice Lead-

79 See About, APOLLO ALLIANCE, http://apolloalliance.org/about/ (last visited Oct. 1, 2010). The Apollo Alliance is a coalition of labor, business, environmental, and community leaders working to develop a clean energy movement that will create mil­ lions of high-quality, green collar jobs. Id. 80 See, e.g., Global Warming Solutions, NATURAL REsouRCES DEFENSE COUNCIL, http:/ /www.nrdc.org/globalwarming/solutions/default.asp (last visited Oct. 1, 2010) (pro­ moting a five-step plan to "repower, refuel and rebuild America" and stating that "[s]olving global warming means investing in clean energy, green jobs and smart en­ ergy solutions."). 8l While it may be argued that the environmental justice movement is not a dis­ cernible monolith that supports or does not support cap and trade, there have been significant criticisms leveled against cap and trade as a solution to climate change. See, e.g., STATEMENT FROM THE ENVIRONMENTALjUSTICE FORUM ON CLIMATE CHANGE Qune 282 NEW YORK CITY LAW REVIEW [Vol. 13:257

ership Forum on Climate Change. It describes what our position is. You can get a copy of it. I also brought with me the HEMIS Princi­ ples for Democratic Organizing so you can better understand what I'm talking about. But we also support cap and trade. In New York City or in New York State where they have the Regional Greenhouse Gas Initia­ tive,82 we're saying that since that's already in place, that money has to be used for environmental remediation in the most vulnera­ ble communities in New York City. And not the kind of offsets that they talk about, like planting trees in front of power plants, but really using the technology that's necessary to reduce emissions be­ cause we're talking about environmental justice and more and more we have to be concerned <;tbout climate change. In the community that my organization is in, there's a 90 per­ cent chance that in the next 10 years there's going to be a storm surge. Forty communities in New York City are at risk of a potential storm surge in the next 10 years.83 That's big. And the waterfront is where you've got the most vulneraole communities. It's also where our infrastructure is, where the power plants are, where the sewage waste management is, where all of that stuff is. So what that means for us is really disastrous unless we, in a very localized way, start coming up with community resilience plans that address issues of climate adaptation. So that's extremely important. But it's not just in New York City where we're dealing with these issues. Detroit is working for envirompentaljustice and has the oldest and most successful green jobs project in the entire United States,84 in a city where they're surrounded Qy brownfields. And so the Apollo Alliance Project's view of cap and trade is a problem because it really doesn't address the issue of siting. Power

2, 2008), http:/ /www.precaution.org/lib/ climate_justice_forum_statement.080602. htm (declaring a "lack of faith that trading mechanisms can address the present and impending climate change crisis," and that "implementing a international, federal, regional or local cap and trade carbon reduction system is a waste of precious time and resources."). 82 See Program Design, REGIONAL GREENHOUSE GAS INITIATIVE, http:/ /www.rggi.org/ design (last visited Oct. 15, 2010). 83 The many areas in New York City where residents face high risk of flooding from a storm surge following a hurricane can be found through tools provided by the New York City Office of Emergency Management. See NYC Hazards: Storm Surge, NEW YoRK CnY OFFICE OF EMERGENCY MGMT., http://www.nyc.gov/html/oem/html/ hazards/storms_stormsurge.shtml (last visited Oct. 1, 2010). 84 See, e.g., DETROITERS WORKING FOR ENVIRONMENTAL JUSTICE, http:/ /www.dwej. org/facts.htm (last visited Dec. 29, 2010). 2010] WHOSE SURVIVAL? 283 plants continue to be sited in our community regardless of cap and trade. It doesn't stop that. It turns pollution into a commodity and it doesn't address issues of siting and disparate impact. We've got people in Moscow, Tennessee who are surrounded by refineries. And testimony from parents whose children are los­ ing their teeth and hair. It's really serious stuff and that's what's happening right now in environmental justice. Climate change re­ ally amps it up and defines the nature of the challenge for you. So we're talking about organizing, how to work respectfully with communities of color. We're talking about legislation and how to address that these climate action plans are moving really quickly, at such a pace that we can't even keep up, and that we need envi­ ronmental justice representation in all of those. And so your goal really is to make sure that you are not only doing research, but that you can pair up with organizations that really need your services. We have law students from all over the country who have done research for us on a number of areas that are really important. So it's really exciting, it's really time-sensitive, and it's really urgent, and you can do this really well if you're will­ ing to give up the cab. So I would invite you to do that with us because the need is there, the creativity is there and it's not only one of the most excit­ ing things that's happening and the more cutting edge things that's happening, but it's also one of the scariest things that we're facing. We work on everything from open space to brownfields, en­ ergy, transportation, all of it while still developing indigenous lead­ ership committed to environmental justice. There's a lot and I think that maybe through your questions and answers we'll be able to address those. Gracias. PROFESSOR HUERTAS-NOBLE: We said these would be powerful presentations, right? At this point we'd like to allow you to ask questions of our panelists. Question: My background is in economics, and I'm thinking about toxins: not only the supply, but also the demand that's driv­ ing the manufacturing processes that create these poisons. I was wondering if you're doing any work to address purchasing in the more affluent communities that are creating these problems, and trying to bring both sides of that together, so that there can be some communication between the people who are creating the burden and the people who are bearing it. MIRANDA MASSIE: Yes. There's a big-tent movement afoot to 284 NEW YORK CITY LAW REVIEW [Vol. 13:257 reform the Toxic Substances Control Act,B5 which is the wholly in­ effective federal statute that is supposed to function as a filter for what chemicals are allowed to be released into the environment. To give you some sad idea ofTSCA's limitations, while 80,000 man­ made compounds have been introduced into the environment and into our bodies since World War II,B6 only 200 of these have been tested, and only five have been banned.B7 TSCA must be improved dramatically, it's clear. Even industry has started to see that, which is unfortunately essential in practical terms in the current political environment.BB To get to your question, while there are several reasons why TSCA reform has gained traction with manufacturers-that is, why it is becoming politically viable-one of the biggest is the growing public consciousness, increasingly across class and race demographics, about toxins as a serious problem. There are un­ declared boycotts that trickle up into what amounts to retailer reg­ ulatio11, for example. So the chemicals industry is starting to worry about consumers who are not buying their products and who want a government stamp of approval that actually means something. These changes are taking place because people have been organiz­ ing around these issues.B9 Question: I want to ask about using social media to mobilize communities. I was just in New Orleans, and went to a meeting about green jobs and new proposals for some of the neighbor­ hoods in the Lower Ninth. Unfortunately, the same people, from the same organizations, always come to all of the meetings in New Orleans, but getting a lot of people from certain parts of the neigh­ borhood is impossible. I think that reaching out especially to young people would require communicating through things like Facebook and text messaging. Do you have people using these

B5 Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 (2006). B6 Katherine M. Shea, Editorial, Protecting Our Children from Environmental Hazards in the Face of Limited Data -A Precautionary Approach is Needed,]. PEDIATRICS, Aug. 2004, at 146-48. B7 Laura LeB!anc, Babies are Polluted at Birth, New Report Says, NEED TO .KNow ON PBS (May 13, 2010), http://www.pbs.org/wnet/need-to-know/health/babies-are-pol­ luted-at-birth-new-report-says. BB Richard Denison, States Unite to Support TSCA Overhaul; Chemical Industry Is In­ creasingly Odd One Out, CHEMICALS & NANOMATERIALS (Aug. 31, 2010), http:/ /blogs. edf.org/nanotechnology /2010 I 08/31 I states-unite-to-support-tsca-overhaul-chemical­ industry-is-increasingly-odd-one-out/. B9 The Health Case for Reforming the Toxic Substances Control Act, SAFER CHEMICALS, HEALTHY FAMILIES COALITION, http://healthreport.saferchemicals.org (last visited Oct. 8, 2010). 2010] WHOSE SURVIVAL? 285 tools to get people to come to meetings like this one, or about the Youth Summit, and bring younger people into the debate? ELIZABETH YEAMPIERRE: Yes and no. It's much easier to organize in urban areas because we're so close to each other. But there's an uneven amount of capacity in different organizations throughout the country. It's hard~r to organize in communities that are really isolated. But we're trying to use all the social media. So for example with the Youth Summit, there's a blog that has been created,90 and the young people create videos to educate peo­ ple on what climate change is, and·hope to make them go viral. But we're using Facebook and Twitter for organizing and they're very effective. Just recently there wa.S a big demonstration against MTA that was organized by young people. They were all there, there were hundreds of them. It was the coolest thing. And they organ­ ized it using these soci~l networks. I think Dave mentioned about how complex information is and how you have to break it down. Even using the social networks, you have to remember to make your information accessible,. that you can't talk long to people, that you have to break it down. Some­ times people in environmental justice talk in code. We talk about DEP and EG and EJ and DEC and no one knows what the hell we're talking about and it really makes the work inaccessible. So you have to break down the language. Those networks actually work for organizing, but you have to make it accessible. I think there are limitations when it comes to language, that there may be communities that are excluded because everything is being done in English, right? Our community is Spanish- and Chinese-speak­ ing, so we speak all three languages at our organization. We are very intentional about making sure that our communications are multi-lingual and that even in our organizing, we provide child­ care, translation, and food so that people can participate, and we find out from them what way of communicating works best for them. So you can'tjust say, you know, I'm going to try Facebook. You need to find out from having the community in the room what is the best way of communicating with you. And with some people it's texting, with some people it's an e-blast, and some people it's old­ school door-knocking and phone calls and sometimes, with our el­ ders, you need to call them. And sometimes you need to even go get them.

90 See NYC CLIMATE JusTICE YoUTH SUMMIT, supra note 77. 286 NEW YORK CITY LAW REVIEW [Vol. 13:257

So you really have to be in the community and have an or­ ganizing structure that is based on your knowledge of what works with that community. But things like Facebook shouldn't be ex­ cluded, because they really do work. Question: I liye in Brooklyn, and I'm an activist for the Fresh Creek Association. I got on board with this because I live right by a nature preserve that was being neglected for many years. I didn't get any support from the c_:ity-I was kicked around from one agency to the next. They said it was not city, it was federal; federal said it was the state because it was the water; and it took me two years to finally get any type of help. I had to organize a clean-up of over 150 volunteers to get any type of recognition, to make them understand that I meant business. And nobody knows about the Fresh Creek Nature Preserve in Canarsie, Brooklyn.91 It is a beauti­ ful place. It overlooks the water. You can see Starrett City on the other side. Finally I got in contact with the NRG92 and they said that they are going to start restoring that area. So I just want to know if I'm going in the right direction. Do I need to get lawyers involved in this? MAJORA CARTER: For those of you that don't know, NRG is a branch of the New York City Parks Department Natural Resources Group. You got yourself in with some good folks. I haven't worked with them that. closely over the last few years but they really intrinsi­ cally understand natural resources and desperately want to protect them. I would advise you to speak with them about opportunities for job creation to support that area. That area is neglected, espe­ cially on that side, and it is tough to be a natural resource of any kind in this city. We have to provide some support for the kind of environmental services that those things provide, which means making sure that there are job opportunities associated with that redevelopment. So think about that and I'd be happy to talk to you more about it. Question: International work seems to be such a huge part of real climate justice. I wonder how we deal with the complexity of the tar sands issues around expansion of the Chevron plant in

91 For more information about Fresh Creek Park, see Fresh Creek Park, NEw YoRK Cr1Y DEPARTMENT OF PARKS AND RECREATION, http:/ /www.nycgovparks.org/parks/ freshcreekpark (last visited Oct. 1, 2010). 92 Natural Resources Group, NEW YoRK CI1Y DEPARTMENT OF PARKS & RECREATION, http:/ /www.nycgovparks.org/sub_about/parks_divisions/nrg/nrg_home.html (stat­ ing mission as "[t]o conserve New York City's natural resources for the benefit of ecosystem and public health through acquisition, management, restoration, and advo­ cacy using a scientifically supported and sustainable research."). 2010] WHOSE SURVIVAL? 287

Richmond, California. It's a complicated issue that is going to af­ fect a lot of people both in Canada and internationally, but the community most impacted is in the Richmond area. That particu­ lar community will probably be given a deal that's going to benefit some of them and make sure that they're not completely devas­ tated. But it's going to actually end up hurting folks internationally a lot worse. It seems really difficult to give anyone good advice about issues like this, or even to understand them myself. Has any­ one had any experience doing community work that incorporates an international analysis into climate change? Do you have any ideas about using some of the rhetoric that came out of the Copen­ hagen Climate Conference in 2009 around climate data or climate reparations? ELIZABETH YEAMPIERRE: I think there were a lot of frustra­ tions that came out of Copenhagen. And there are certainly a lot of environmental justice groups out in California that are working on the Chevron issue,93 for example, the Center on Race, Poverty & the Environment94 and Physicians for Social Responsibility.95 At the Youth Conference, we had a presentation from some folks from Brazil who are just doing a phenomenal job. They have a great model and they are working in a place that's incredibly diverse and has very few resources. Their community includes eve­ rything from the favelas to areas that are agricultural. They are coming up with real community ownership and doing amazing work. We are reminding our young people, who keep wanting to go global on us, that environmental justice is about us speaking for ourselves and that they should work in solidarity with the people out in Bolivia and Brazil and all of these other places. We are also reminding them that they should try to work locally to try to figure out how you really can create a sustainable community on every­ thing from food to urban forestry. We want to make sure that we create the spaces where they can actually interact with each other

93 See, e.g., COMMUNITIES FOR A BETTER ENVIRONMENT, http:/ /www.cbecal.org/ (last visited Oct 1, 2010). · 94 The Center provides "legal, organizing, and technical assistance to grassroots groups in low-income communities and communities of color fighting environmental hazards." CENTER ON RAcE, PoVEKIY & THE ENVIRONMENT, http://www.crpe-ej.org/ crpe/ (last visited Oct. 1, 2010). 95 Physicians for Social Responsibility is "a non-profit advocacy organization that is the medical and public health voice for policies to prevent nuclear war and prolifera­ tion and to slow, stop and reverse global warming and toxic degradation of the envi­ ronment." About, PHYSICIANS FOR SOCIAL REsPONSIBILITI, http://www.psr.org/about/ (last visited Oct. 1, 2010). 288 NEW YORK CITY LAW RF.VIEW [Vol. 13:257 and share strategy in a way that can really elevate the discussion of climate and how that's going to affect particular environmentaljus­ tice communities in developing nations. Question: Elizabeth, you mentioned the need to coalition­ build and be mindful of what other groups in other communities and other cities are doing. You also mentioned building indige­ nous leadership. Have you seen these two tactics connected, with the result that people of color and poor people are really leading the environmental justice movement as the people who are most affected? ELIZABETH YEAMPIERRE: Those voices manifest themselves differently from place to place. Our responsibility is to take it back to our base and make sure that we·create spaces for people of color and poor people to emerge as leaders. The priorities are different depending on where you're coming from, but the goals and the process are pretty much the same everywhere: we get our direction from the base. In UPROSE, several years ago we had very limited resources and I wanted to fight for the development of a park because one­ third of our community, over 30,000 people, was under the age of 19 and we only had a quarter-acre of open space for every thou­ sand people. While I was thinking that a park was a priority, there were plans to build a power plant that was the size of three football fields. Our young people felt that the power plant was the priority for organizing. And we followed them. We didn't neglect trying to get a park, but we put our energies into fighting the plant. The young people in our community felt very strongly that they wanted to stop the siting of the power plant. And they did. I think that was the first time that happened in New York City. It was an entirely youth-led process. They testified at hearings; they mobilized; they educated; they learned about the grid. The average age of our organizers was about fifteen and they weren't the kids with the best grades in school; they were not the "cream of the crop." These were kids from around the block talking about reducing emissions locally. And a lot of them now are in college. They've grown up with the organization. As Executive Director, I could have said, "No, this is what we're going to do." But we chose to listen to the base and we did something that was really trans­ formational. Once they stopped the siting of the power plant, there was no way of telling those young people that they couldn't change the whole power dynamic. It was a powerful thing. 2010] WHOSE SURVIVAL? 289

Question: Majora, can you talk about the resources and strate­ gies that you think are particularly key to mounting a successful green jobs initiative in light of your trajectory as you've moved from Sustainable South Bronx to your current consulting work? MAJORA CARTER: I got involved in environmental justice fighting against the waste facility with the rest of my neighborhood in the Bronx. But what was really clear for folks in my neighbor­ hood was that we neededjobs. The question was, What could we do? Where are people needed? There are opportunities all over this country around climate adaptation and increasing the amounts of horticultural infrastructure. In some cases-like in wet­ land restoration, green roof installation, forestry management, even rural forestry management-these jobs have lower barriers to entry. Those same opportunities are also doing tremendous things in terms of reducing our energy base load. There are lots of folks who are simply not going to be allowed to do a lot of work because of their records. We've taken some hits from folks who accuse us of making our people into field hands. I totally understand that but I think the reason why we're in this climate crisis right now is be­ cause we separated ourselves so much from the land. Most of us are only one or two generations from the land itself. And how do we restore that in terms of creating a whole new economy that actually recognizes that as human beings we are one with our land? We can't continue to do the same kind of awful, egregious things we have been doing, especially since now we know the things that are creating much of our climate crisis. Just imagine what kind of world this would be now if we had put all of the environmental justice burdens, whether they were waste facilities, power plants, refineries, mountaintop removal, whatever, in wealthy communi­ ties at the same rate that we did in poor ones. You know our econ­ omy would have been clean and green a long ·time ago. So we've got to move back in a way that actually allows us to embrace this planet in a way that's much more loving than it has been in the past. PROFESSOR HUERTAS-NOBLE: I want to take the opportu­ nity to thank the panelists again and also to invite you to join the environmental justice movement and to think about being part of the solution. Environmental justice takes many forms. We've heard about community-based organizations that are fighting to create access to the waterfront, in parks, and community-based organiza­ tions that are training folks to get access to green collar jobs. We also talked about lawyering on behalf of and with communities. I ·290 NEW YORK CITY LAW REVIEW [Vol. 13:257

encourage us to think about our role as lawyers and how we work with community groups. I think it's something that we need to be aware of throughout our practice, not just in the beginning. We also think about what different forms that we could take, either through litigation, community education, or leveraging ex­ pert consultations. And I think also the thing that I heard echoed today that was really powerful was the concept of doing a power analysis.and thinking about who we are in that relationship. Some of us actually may not see ourselves as privileged, even though we certainly are privileged as law students and lawyers. But the impor­ tant message is to be deliberate and intentional and critical and constantly be thinking about these issues and how you're going to contribute to the different struggles. MATERIAL SUPPORT AND THE FIRST AMENDMENT: ELIMINATING TERRORIST SUPPORT BY PUNISHING THOSE WITH NO INTENTION TO SUPPORT TERROR?

Bradley A. Parker

The most odious of all oppressions are those which mask as justice. Justice Robert H: Jackson1

INTRODUCTION The September 11, 2001 attacks on the World Trade Center and the Pentagon fundamentally changed the way that law enforce­ ment officials operate and address terrorist threats. Immediately after the attacks, the Department of Justice ("DO]") implemented new procedures that were expected to help prevent and obstruct future acts of terror that appeared to be imminent. 2 In the process, the DO] vowed to use every available law to combat the threat that this new kind of enemy now posed to individuals within the United States.3 The exigency to obstruct future attacks led to the reevalua­ tion and broad reinterpretation of existing laws that in some situa­ tions has been clearly unconstitutional. Broad interpretations of seemingly narrow statutes were thought necessary in order to allow law enforcement officials to effectively obstruct and prevent future attacks. The coordination of the attacks and the destruction that it caused shocked the world and alerted many to th,e reality that fun­ damentalist and extremist groups were organized and could attack

* Bradley A. Parker, B.S., University ofVermont;J.D., City University of New York School of Law. I especially appreciate the insightful comments and support provided by Beena Ahmad. 1 Krulewitch v. U.S., 336 U.S. 440, 458 (1949) Qackson,J., concurring). 2 See generally U.S. DEP'T OF JUSTICE, CoUNTERTERRORISM SECTION, CouNTERTER­ RORISM WHITE PAPER Qune 22, 2006), availabk at http://trac.syr.edu/tracreports/ terrorism/169 /include/ terrorism.whitepaper. pdf. 3 Attorney General John Ashcroft, Testimony Before the National Commission on Terrorist Attacks Upon the United States (Apr. 13, 2004) ("Had I known a terrorist attack on the United States was imminent in 2001, I would have unloaded our full arsenal of weaponry against it-despite the inevitable criticism. The Justice Depart­ ment's warriors, our agents, and our prosecutors would have been unleashed. Every tough tactic we have deployed since the attacks would have been deployed before the attacks."), http://www.9-llcommission.gov/hearings/hearing! 0 I ashcroft_statement. pdf.

291 292 NEW YORK CITY LAW RF,VIEW [Vol. 13:291 us in our own communities. There was an urgent demand to hold those responsible for the attacks accountable and even before the second tower had collapsed Osama bin Laden and al-Qaeda were presumed to be responsible. Many people around the world were learning about bin Laden, al-Qaeda and Islamists for the first time while "experts" on Islamic Law were discussing the foundations and history of Qur'anic interpretations supporting the Islamists' views that led to the September 11 attacks. Al-Qaeda had inflicted a devastating blow to the American psyche that propelled Osama bin Laden to the front pages of newspapers around the world as well as to the top of the Federal Bureau of Investigation's ("FBI") most wanted lists. 4 The Department ofJustice, under pressure from the President and state law enforcement agencies to prevent and obstruct future attacks, pledged to protect America using all available law enforce­ ment tools. Then-acting U.S. Attorney General John Ashcroft stated: "We will use every available statute. We will seek every prosecutorial advantage. We will use all our weapons within the law and under the Constitution to protect life and enhance security for America."5 These statements marked a watershed moment in the methods and procedures that were used to combat terrorism. The Department ofJustice's shift from the traditional prosecu­ tion of suspected terrorists to the prevention of attacks before they occurred6 gained traction in the terrorism support statutes 7 and the federal material witness law. 8 Both were used as tools to preven­ tively detain and target individuals who were suspected of being members of or supporting terrorist organizations.9

4 See Federal Bureau of Investigation, The FBI's Ten Most Wanted Fugitives, http://www.fbi.gov/wanted/topten/fugitives/fugitives.htm (last visited Jan. 30, 2010); Federal Bureau oflnvestigation, FBI's Most Wanted Terrorists, http://www.fbi. gov/wanted/terrorists/fugitives.htm (last visited Jan. 30, 2010); David Johnston & Philip Shenon, A Nation Challenged: The Investigation; U.S. Lists Most Wanted Terrorists and Offers Reward of Millions, N.Y. TIMES, Oct. 11, 2001, at Al. 5 U.S. Att'y Gen.John Ashcroft, Prepared Remarks for the US Mayors Conference (Oct. 25, 2001), availabl.e at http://wwwJustice.gov/archive/ag/speeches/2001/ag crisisremarksl0_25.htm. 6 Robert M. Chesney, The S!.eeper Scenario: Terrorism-Support Laws and the Demands of Prevention, 42 HARv. J. ON LEGIS. l, 26-27 (2005). 7 18 U.S.C. § 2339A; 18 U.S.C. § 2339B (2006). 8 18 U.S.C. § 3144 (2006); see HuMAN RIGHTS WATCH, WITNESS To ABusE: HUMAN RrcHTsABusEs UNDER THE MATERIAL WITNESS LAw SINCE SEPTEMBER 11 (2005), availa­ bl.eat http://www.hrw.org/reports/2005/us0605/index.htm (click "Misuse of the Ma­ terial Witness Law to Hold Suspects as Witnesses"); see also Bradley A. Parker, Abuse of the Material Witne5s: Suspects Detained as Witnesses" in Violation of the Fourth Amendment, 36 RUTGERS L. REc. 22 (2009). 9 See Chesney, supra note 6, at 26-47. 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 293

The federal terrorism support statutes that ban and criminal­ ize the provision of material support to designated foreign terrorist organizations have been broadly reinterpreted and applied outside of their original scope, which has resulted in violations of First Amendment rights. The Department of Justice's expansive and broad characterization of what constitutes material support has led to misguided prosecutions under the guise of the "War on Terror" that do nothing to actually combat the organizations and individu­ als that pose a clear and present danger to American lives. In this Note, I argue that the present prohibition on providing material support to designated foreign terrorist organizations in the form of "expert advice and assistance" is misguided in the larger context of the interminable 'War on Terror." The prohibi­ tion should be viewed as a violation of the First Amendment of the U.S. Constitution because the terrorism support statutes are not in accord with Scales v. United States10 and Brandenburg v. Ohio.11 The broad interpretation of material support prohibitions is a throw­ back to McCarthyism and essentially criminalizes the provision of advice only when offered to a certain disfavored political organiza­ tion that has been designated by the Secretary of State as a Foreign Terrorist Organization ("FTO"). Finally, I argue that material sup­ port statutes should be narrowly drawn, requiring specific intent to further the illegal aims of an FTO in order to prevent misguided prosecutions against individuals who have no intention to support the illegal aims of a designated FTO. Focusing law enforcement resources on individuals who do not intend to support violent or even illegal acts of an organization ultimately makes us more vul­ nerable to future attacks.

I. A HISTORY OF CRIMINALIZING MATERIAL SUPPORT A. Pre-September 11, 2001 Federal Material Support Statutes Following the 1993 bombing of the World Trade Center,12 Congress passed legislation that had been in the works since 1991,13 which sought to eliminate economic support to terrorist organizations.14 The first material witness statute, codified as 18

10 Scales v. United States, 367 U.S. 203 (1961). 11 Brandenburg v. Ohio, 395 U.S. 444 (1969). 12 See Ralph Blumenthal, Explosion at the Twin Towers: The Investigation; Bomb is Defi­ nite Answer, But All Else is Mystery, N.Y. TIMES, Feb. 28, 1993, § 1, at 34; The Twin Towers: The Complaint; Starting with Debris, N.Y. TIMES, Mar. 5, 1993, at B3. 13 See Chesney, supra note 6, at 11-12. 14 See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 120005, 108 Stat. 1796 (1994). 294 NEW YORK CITY 1-A W REVIEW [Vol. 13:291

U.S.C. § 2339A, was part of this legislation. Section 2339A criminal­ ized the provision of "material support" to any individual or organi-. zation when the donor "kn[ew] or intend[ed] that [the material support was] to be used in preparation for, or in carrying out" one or more criminal violations enumerated in the statute.15 This first material support statute only criminalized the provision of material support where the donor specifically intended for the aid to sup­ port terrorist activity. 16 This narrow definition did not result in a complete ban on support for criminal activity because individuals

15 The first material support statute provided: § 2339A. Providing material support to terrorists (a) DEFINITION.-In this section, 'material support or resources' means currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communica­ tions equipment, facilities, weapons, lethal substances, explosives, per­ sonnel, transportation, and other physical assets, but does not include humanitarian assistance to persons not directly involved in such violations. (b) OFFENSE.-A person who, within the United States, provides mate­ rial support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or in­ tending that they are to be used in preparation for, or in carrying out, a violation of section 32, 36, 351, 844 (f) or (i), 1114, 1116, 1203, 1361, 1363, 1751, 2280, 2281, 2331, or 2339 of this title or section 46502 of title 49, or in preparation for or carrying out the concealment of an escape from the commission of any such violation, shall be fined under this title, imprisoned not more than 10 years, or both. Violent Crime Control and Law Enforcement Act, Pub. L. No. 103-322, § 120005, 108 Stat. 1796 (1994); the current 18 U.S.C. § 2339A(a) provides: (a) OFFENSE.-Whoever provides material support or resources or conceals or disguises the nature, location, source, or ownership of mate­ rial support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of section 32, 37, 81, 175, 229, 351, 831, 842(m) or (n), 844(£) or (i), 930(c), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 1992,2155,2156,2280, 2281, 2332, 2332a, 2332b, 2332f, or 2340A of this title, section 236 of the Atomic Energy Act ofl954 (42 U.S.C. 2284), section 46502 or 60123(b) of title 49, or any offense listed in section 2332b(g) (5) (B) (except for sections 2339A and 2339B) or in preparation for, or in carrying out, the conceal­ ment of an escape from the commission of any such violation, or at­ tempts or conspires to do such an act, shall be fined under this title, imprisoned not more than 15 years, or both, and, if the death of any person results, shall b~ imprisoned for any term of years or for life. A violation of this section may be prosecuted in any Federal judicial dis­ trict in which the underlying offense was committed, or in any other Federal judicial district as provided by law. 18 U.S.C. § 2339A (2006). 16 Recognizing that the term "terrorist activity" is subjective and generally has been used to describe a broad range of acts and conduct that may not even include vio­ lence, I have used the term throughout this paper in reference to the enumerated acts included in 18 U.S.C. § 2339A and § 2339B. 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 295 could still indirectly support terrorist activity as long as they did not specifically intend for their aid or support to do so. 17 The specific­ in tent element was so stringent that§ 2339A was not very useful or valuable to federal prosequtors in efforts to eliminate economic support for terrorism.18 While not extremely valuable to federal prosecutors, § 2339A is constitutional and does not violate the First Amendment. The Supreme Court has noted that the act of giving money can be con­ sidered an act of expression that deserves First Amendment protec­ tion.19 However, the government may ban speech "where such advocacy is directed to inciting or producing imminent lawless ac­ tion and is likely to incite or produce such action."20 An individual prosecuted under § 2339A must know or intend that his or her support will aid in the preparation or carrying out of criminal activ­ ity. The speech or material support is directed toward producing violence, which the defendant had the intention to support, and therefore would not be protected by the First Amendment. 21 Following the bombing in Oklahoma City in 1995,22 Congress again attempted to eliminate the financing of terrorist organiza­ tions by enacting a more relaxed material support statute that would reach a broader range of individuals than the existing stat­ ute. Congress passed the Anti-Terrorism and Effective Death Pen­ alty Act of 1996 ("AEDPA"),23 which created a second material support statute codified as 18 U.S.C. § 2339B.24 Section 2339B used

17 Chesney, supra note 6, at 13. IS See id. at 18-19. 19 See Buckley v. Valeo, 424 U.S. 1, 16 (1976) (''Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment."). 20 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). 21 See United States v. Lindh, 212 F. Supp.2d 541, 569 (E.D. Va. 2002). 22 See John Kifner, Terror in Oklahoma City: The Overview -At Least 31 Are Dead, Scores Are Missing After Car Bomb Attack in Oklahoma City Wrecks 9-Story Federal Office Building; 12 Victims Were Children in 2d-Floor Day-Care Center, N.Y. TIMES, Apr. 20, 1995, at Al; David Johnston, Terror in Oklahoma: The Overview; Oklahoma Bombing Plotted for Months, Officials Say, N.Y. TIMES, Apr. 25, 1995, at AL 23 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 303, 110 Stat. 1214 (1996). 24 Section 2339B as enacted in the AEDPA provided: Providing material support or resources to designated foreign terrorist organizations (a) PROHIBITED AcrIVITIEs.- (1) UNLAWFUL CoNnucr.-Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides ma­ terial support or resources to a foreign terrorist organization, or at- 296 NEW YORK CITY LAW REVIEW [Vol. 13:291

the same definition of "material support" as § 2339A25 but elimi­ nated the specific-intent requirement where the recipient of the aid or support has been designated by the Secretary of State as a Foreign Terrorist Organization ("ITO") .26 Under§ 2339B an indi­ vidual can be prosecuted for "knowingly provid[ing] material sup­ port or resources to a foreign terrorist organization."27 The omission of a specific intent requirement in § 2339B broadened its applicability and enhanced the utility of the statute but it was rarely used by federal prosecutors prior to September 11.28 Interestingly, § 2339B originally contained a licensing scheme or exception for certain types of aid to groups that had been desig­ nated as an FT0.29 Under this licensing scheme individuals or or­ ganizations would have been able to seek permission from the Department of the Treasury to provide certain types of aid or sup­ port to the designated FT0.30 The Department of the Treasury could grant a "license only after the person establishes ... that ... the funds are intended to be used exclusively for religious, charita­ ble, literary, or educational purposes;" and that all recipients have procedures that "ensure that the funds will be used exclusively for religious, charitable, literary, or educational purposes, and will not be used to offset a transfer of funds to be used in terrorist activ­ ity. "31 The proposed scheme would have required the donor and the recipient to keep a record of all transactions that took place and would have required production of those records on the de-

tempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both. 18 U.S.C. § 2339B (2000). 25 Id. § 2339 B(g) ( 4); Cf supra note 15 for definition of "material support" under 18 u.s.c. § 2339A. 26 18 U.S.C. § 2339B (a)(l) (referencing§ 219 of the Immigration and Nationality Act for the definition of a "designated terrorist organization"). 27 Id.§ 2339B(a)(l). 28 Chesney, supra note 6, at 19. 29 The proposed licensing scheme provided: (e)(3) The Secretary shall grant a license only after the person estab­ lishes to the satisfaction of the Secretary that- (A) the funds are intended to be used exclusively for religious, charitable, literary, or educational purposes; and (B) all recipient organizations in any fund-raising chain have effec­ tive procedures in place to ensure that the funds (i) will be used exclusively for religious, charitable, literary, or educational pur­ poses, and (ii) will not be used to offset a transfer of funds to be used in terrorist activity. S. 390, 104th Cong.§ 301 (1995) (proposing 18 U.S.C. § 2339B(e)(3)(A)-(B)); see also Chesney, supra note 6, at 15. 30 Chesney, supra note 6, at 15. 31 S. 390, 104th Cong.§ 301 (1995) (proposing 18 U.S.C. § 2339B(e) (3) (A)-(B)). 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 297 mand of the Secretary of the Treasury.32 The licensing scheme was dropped following the Oklahoma City bombing and § 2339B acted as a prohibition on all fundraising regardless of the intent of the donor.33 Prior to September 11, 2001, federal prosecutors rarely prose­ cuted individuals under either of the then-existing material sup­ port statutes. The limited use could be attributed to § 2339A's narrow scope as a result of its specific-intent requirement while § 2339B may have appeared to be too broad for a U.S. Attorney to fervently seek indictments and convictions because of constitu­ tional concerns. The fact that both statutes were Congressional re­ actions to recent bombings, which had dominated American media because they were large-scale acts of terror, suggests that the statutes were more of a political tool than a tool for federal law enforcement. Regardless of the reason for the limited use of the material support statutes prior to September 11, federal prosecu­ tors after September 11 increasingly began to target a wide range of individuals who had allegedly provided material support to ter­ rorist organizations.

B. Post-September 11 Federal Terrorism-Support Statutes Following the attacks on the World Trade Center and the Pen­ tagon, Congress hastily signed34 the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act35 ("USA PATRIOT Act") into law. The USA PATRIOT Act broadly sought "to deter and punish terrorist acts in the United States and around the world" and "to enhance law enforcement investigatory tools."36 The USA PATRIOT Act made a few changes to the existing material support laws. Most importantly, § 805(a) (2) (B) added "expert advice or assistance" to the definition of "material support" in § 2339A,37 which also acts as the definition under § 2339B.38 This addition expanded the original definition, which targeted

32 Id. (proposing 18 U.S.C. § 2339B(e)(4)). 33 See Chesney, supra note 6, at 15-16. 34 See Robin Toner & Neil A. Lewis, House Passes Terrorism Bill Much Like Senate's, but With .9-Year Limit, N.Y. TIMES, Oct. 13, 2001, at B6. 35 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107-56, 115 Stat. 272 (2001). 36 Id. at 272. 37 Id.§ 805(a)(2)(B). 38 18 U.S.C. § 2339A(b) (1) (2006); 18 U.S.C. § 2339B(g) (4) (2006). 298 NEW YORK CITY LAW REVIEW [Vol. 13:291 mainly tangible support in the form of money, weapons, and other similar goods and services, to include the vague prohibition on providing "expert advice or assistance."39 The addition of "expert advice or assistance" by § 805(a) (2) (B) has been the target of sev­ eral First Amendment challenges. Section 805(a) (2) (B) of the USA PATRIOT Act was chal­ lenged on First Amendment grounds by several humanitarian groups that provided support to the Tamil Tigers and the Kurdi­ stan Worker's Party. In Humanitarian Law Project v. Ashcroft,40 the plaintiffs argued that § 805(a)(2) (B) violated First Amendment guarantees of freedom of speech and association and to petition the government for a redress of grievances because there was no requirement of "specific intent to further the organization's unlaw­ ful ends."41 Next they argued that § 805(a)(2)(B) invites "view­ point discriminatory targeting of particular groups and their supporters based on their political views" because the Secretary of State has "effectively unreviewable authority to designate foreign organizations as 'terrorist' and [to] prohibit the provision of 'ex­ pert advice and assistance"' to that politically disfavored group.42 Finally, the plaintiffs attacked § 805(a)(2) (B) and its prohibition on "expert advice and assistance" as being "impermissibly vague and substantially overbroad" and as a result§ 805(a) (2) (B) fails "to afford adequate notice to individuals of what is prohibited, giving government officials unfettered discretion in enforcement" and causes individuals to refrain from taking part in First Amendment protected activity. 43 The court found that the term "expert advice or assistance" was impermissibly vague44 but rejected the argument that§ 805(a) (2) (B) was overbroad.45 Following the decision in Humanitarian Law Project46 that § 805(a) (2)(B) was impermissibly vague, Congress sought to de­ fine "expert advice or assistance." Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004 ("IRTPA"),47 which amended the definition section of the first material support stat-

39 See 18 U.S.C. § 2339A(b) (1) (2006). 40 Humanitarian Law Project v. Ashcroft, 309 F. Supp. 2d 1185 (C.D. Cal. 2004). 41 Complaint for Declaratory and Injunctive Relief at ii 49, Humanitarian Law Pro- ject v. Ashcroft, No. 03-6107 (C.D. Cal. Aug. 27, 2003). 42 Id. ii 51. 43 Id. ii 53. 44 Humanitarian Law Project, 309 F. Supp. 2d at 1199-1201. 45 Id. at 1201-03. 46 Id. 47 Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004). 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 299 ute, 18 U.S.C. § 2339A(b) (1).48 In IRTPA, Congress defined "ex­ pert advice or assistance" as "advice or assistance derived from scientific, technical or other specialized knowledge."49 While this may have added some clarity to exactly what "expert advice or assis­ tance" was to be punished, others argue that "[i]t provide[d] no additional clarity, and in fact exacerbate[d] the statute's vagueness, because now an individual must guess as to whether the knowledge that makes his advice 'expert' is 'specialized' or not."50 The federal material support statutes have developed as re­ sponses to the terror acts that have occurred within the United States since 1993.51 The first material support statute, 18 U.S.C. § 2339A, was narrowly drawn and was rarely used. The second ma­ terial support statute, 18 U.S.C. § 2339B, was enacted to eliminate the "loophole" that arose under the § 2339A requirement of spe­ cific intent; nonetheless federal prosecutors rarely used the statute as a tool to combat terrorism support prior to September 11. Fol­ lowing September 11, the Department of Justice broadly reinter­ preted the statutes so that they could be used as a tool to prevent and obstruct future terrorist attacks. The material support statutes were broadly applied beyond their qriginally intended scope and as a result are now being used in violation of the First Amendment.

II. MATERIAL SUPPORT MISSION CREEP A. First Amendment Implications The First Amendment does not provide absolute protection to all types of speech. Unprotected categories of speech relevant to the material support statutes include fighting words,52 incitement to illegal activity or imminent violence,53 and true threats or intimi­ dation.54 It follows quite uncontested that violent conduct and speech that threatens violence may be constitutionally prose­ cuted. 55 Therefore, individuals who intend to support violent ter­ rorist activity by providing material support as defined in 18 U.S.C. § 2339A(b) (1) can be constitutionally prosecuted and punished under§ 2339A because they possess the specific intent required by

48 Id.§ 6603(b). 49 Id. 50 PATRIOT DEBATES: EXPERTS DEBATE THE USA PATRIOT Ac:r (Stewart A. Baker & John Kavanagh eds., 2005). 51 See Chesney, supra note 6, at 12. 52 See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). 53 See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969). 54 See Virginia v. Black, 538 U.S. 343, 359-60 (2003). 55 See United States v. Lindh, 212 F. Supp.2d 541, 569 (E.D. Va. 2002). 300 NEW YORK CITY LAW REVIEW [Vol. 13:291 the first material support statute. This comports with the First Amendment. Possible conflict with the First Amendment arises in cases where there is no obvious or provable specific intent to further the violent goals of a terrorist organization. The second material sup­ port statute, 18 U.S.C. § 2339B, was specifically created to address these cases but the broad scope of application by federal prosecu­ tors has resulted in a statute that criminalizes First Amendment protected speech and acts as a tool to punish individuals whose conduct cannot be linked to any specific terrorist attack or violent conduct. In this section I do not challenge the long-standing constitu­ tional jurisprudence that criminalizes speech that threatens vio­ lence or that results in violence. I seek to illustrate that the broad interpretation of the material support statutes following September 11 has criminalized speech in violation of the First Amendment to the U.S. Constitution in two different contexts. First, § 2339B in­ fringes on the protected First Amendment right of association by criminalizing material support only when offered to a politically disfavored group. As applied. by the government, punishment hinges not on individual intent to further terrorist activity but on the identity of the organization that has received the material sup­ port. Individuals are prosecuted and punished because of their ten­ uous connection to others who have committed illegal acts even though there is no showing of an individualized specific intent to further terrorist activity. Second, § 2339B criminalizes First Amend­ ment protected speech even where the speech is not directed to incite or produce imminent lawless action and is not likely to incite or produce such lawless action. 56

B. Guilt by Association: FI'Os and the Need For Specific Intent 1. Scales v. United States and Specific Intent An individual's freedom of association is rooted in both the First Amendment and the "liberty" interest guaranteed in the Four­ teenth Amendment57 to the U.S. Constitution. The First Amend­ ment states, "Congress shall make no law . . . abridging the

56 See Brandenburg, 395 U.S. at 447 (holding that an Ohio criminal syndicalism law violated an individual's right to free speech because the law criminalized advocacy and teaching of disfavored doctrines without considering whether that conduct would actually incite imminent lawless action). 57 U.S. CONST. amend. XIV, § 1 ("No State shall ... deprive any person of life, liberty, or property, without due process of law"). 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 301 freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a re­ dress of grievances."58 The Supreme Court has recognized that group association is closely related to the constitutionally protected freedoms of speech and assembly.59 The Court has also acknowl­ edged that "[i] tis beyond debate that freedom to engage in associ­ ation for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."60 The right of free association applies when an individual assem­ bles as part of a group to partake in protected First Amendment activities. The right to join with other people to advocate for a par­ ticular political, cultural, educational, or economic opinion or view is known as the right of "expressive association."61 The Supreme Court has recognized that" 'implicit in the right to engage in activi­ ties protected by the First Amendment' is 'a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.' This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas."62 Based on the foregoing, individuals have a clearly recog­ nized constitutional right of free association. Since freedom of association is a constitutionally protected right, an individual cannot be punished for their membership or association with a particular group. Generally, for guilt to be shared, an organization and its members must have a common plan evidenced by a specific intent to commit unlawful acts.63 In Scales v. United States, the Court stated: In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ... , that relationship must be suffi­ ciently substantial to satisfy the concept of personal guilt in or­ der to withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an organiza-

58 U.S. CoNST. amend. I. 59 NAACP v. Alabama ex rel Patterson, 357 U.S. 449, 460 (1958) ("Effective advo­ cacy of both public and private points of view, particularly controversial ones, is unde­ niably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly."). 60 Id. 61 Boy Scouts of America v. Dale, 530 U.S. 640, 647-48 (2000). 62 Id. (citing Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984)). 63 Scales v. United States, 367 U.S. 203, 228 (1961). 302 NEW YORK CITY LAW IIBVIEW [Vol. 13:291

tion engaged in illegal advocacy, it is now said, has not hereto- fore been recognized by this Court to be such a relationship.64 Therefore, in order to punish a defendant in accord with the Con­ stitution, Scales requires that the government establish personal guilt by proving that "a defendant 'specifically intend[s] to accom­ plish [the aims of the organization] by resort to violence."'65 While Scales focused on the Due Process Clause of the Fifth Arnendment,66 the Court also determined that the same showing of specific intent was required to comport with the First Arnend­ ment.67 Scales recognized "there would indeed be a real danger that legitimate political expression or association would be im­ paired" if a "blanket prohibition of association with a group having both legal and illegal aims" was deemed to be constitutional.68 The Court then held that the First Amendment prohibits punishing in­ dividuals based solely on their support of a group's legal aims or conduct.69 Where a group or organization is linked to both illegal and legal activity, the First Amendment requires that the government prove the individual intended to support or further the illegal aims of the group. Without a showing of the specific intent to support or further the illegal acts of the group, an individual may not be punished.

2. Forgetting Scales: 18 U.S.C. § 2339B The second material support statute, 18 U.S.C. § 2339B, was meant to eliminate the perceived narrow utility of the first material support statute70 and address the criticisms of the "loophole" cre­ ated by requiring an individual to possess the specific intent to fur­ ther a group's illegal aims. 71 Critics argued that the specific intent requirement created a "loophole" because individuals could do­ nate to groups that were engaged in both legal and illegal conduct but claimed that they only in.tended to support the legal aims of the group, such as educational or social aid.72 Thereby, they would not be subject to the statute and their donations and support

64 Id. at 224-25. 65 Id. at 229 (quoting Noto v. United States, 367 U.S. 290, 299 (1961)). 66 U.S. CONST. amend. V. 67 Scales, 367 U.s: at 228-29. 68 Id. at 229. 69 Id. 7o 18 U.S.C. § 2339A (2006). 71 See Chesney, supra note 6, at 12-18 & 13 n.72-73. 72 Id. 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 303 would not be subject to any sanctions under the· material support law. 73 This "loophole" was the one provision that clearly made the first material support statute constitutional. Section 2339A specifi­ cally requires that the individual knew or intended that their sup­ port or aid was "to be used in preparation for, or in carrying out" illegal acts.74 This is in accord with Scales because the individual is only punished where he has the specific intent to further the illegal acts of the group.75 Also, § 2339A does not rely on the identity of the recipient to determine whether an individual has violated the statute.76 Section 2339A is constitutional because it simply punishes any material support provided with the intent to further the illegal aims or conduct of any group or organization.77 One component of the second material support statute that is problematic concerns the addition of "expert advice or assistance" to the definition of "material support."78 The definition of "mate­ rial support" previously included only tangible support while the USA PATRIOT Act injected the vague notion of "expert advice or assistance" which has the potential to criminalize speech.79 Under § 2339A this is not problematic because the requirement of spe­ cific intent serves to punish individuals who intend for their sup­ port to further illegal activity.80 Under § 2339B, however, the addition of "expert advice or assistance" opened the door to prose­ cute individuals who did not intend to further the illegal aims of the group. Their provision of "expert advice or assistance" was only criminalized because their "expert advice or assistance" had been offered to a group that had been designated as a FTO. Therefore, the individual was not required to possess the specific intent of fur­ thering the FTO's illegal aims. This does not comport with Scales as the statute has the potential to punish members of a group who intend to support only the legal aims of that group. Section 2339B ultimately relies on the recipients' identity to

73 However, fin'ancial transactions could be prohibited and assets could be seized pursuant to emergency powers possessed by the Executive under the International Emergency Economic Powers Act, 50 U.S.C. § 1702 (2006). 74 18 U.S.C. § 2339A(a) (2006). 75 Cf Scales, 367 U.S. at 228. 76 Chesney, supra note 6, at 18. 77 18 U.S.C. § 2339A(a) (2006). 78 See USA PATRIOT Act, Pub. L. No. 107-56, §805(a)(2)(B), 115 Stat. 272 (2001); see also 18 U.S.C. § 2339A(b) (2006). 79 Compare Violent Crime Control and Law Enforcement Act, Pub. L. No. 103-322, § 120005, 108 Stat. 1796 (1994), and 18 U.S.C. § 2339A (2006). so 18 U.S.C. § 2339A(a) (2006). 304 NEW YORK CITY LAW REVIEW [Vol. 13:291 determine whether the provision of support is criminalized or not. 81 The Secretary of State has the authority to designate .an or­ ganization as a "foreign terrorist organization."82 The AEDPA83 cre­ ated the second material support statute84 and also amended§ 219 of the Immigration and Nationality Act85 to provide the Secretary of State with this authority as a necessary adjunct to 18 U.S.C. § 2339B. To designate an organization as an ITO the Secretary of State must find that" (A) the organization is a foreign organization; (B) the organization engages in terrorist activity ... ; and (C) the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States."86 The Secretary of State can decide at any time that an or­ ganization meets the enumerated conditions and may add that or­ ganization to the ITO list87 by informing Congress and publishing notice of the designation in the Federal Register.88 The designa­ tion becomes effective for purposes of the second material support statute89 upon publication in the Federal Register; however, any designation can "cease to have effect upon an Act of Congress dis­ approving such designation."90 Section 2339B clearly requires a knowledge standard,91 but this does not necessarily mean that an individual specifically in­ tended to support terrorist activity; nevertheless, an individual's provision of "expert advice or assistance" can be punished if the organization has been designated as an FTO. Section 2339B states " [ t] o violate this paragraph, a person must have knowledge that

81 See David Cole, The New McCarthyism: Repeating History in the War on Terrorism, 38 HARv. C.R.-C.L. L. REv. 1, 10 .(2003). 82 8 U.S.C. § 1189(a) (1) (2006). 83 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 303, 110 Stat. 1214 (1996) (codified in 18 U.S.C. § 2339B). 84 See 18 U.S.C. § 2339B (2006). 85 8 u.s.c. § 1189 (2006). 86 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 302, 110 Stat. 1214 (1996) (codified in 18 U.S.C. § 2339B). 87 "ITO list" refers to the list of organizations that have been designated as a "for­ eign terrorist organization" pursuant to 8 U.S.C. § 1189(a)(l). As ofJanuary 9, 2010 there were 45 designated ITOs. See Office of the Coordinator for Counterterrorism, U.S. Dep't of State, Foreign Terrorist Organizations: Fact Sheet, http://www.state. gov/s/ct/rls/other/des/123085.htm. 88 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 302(a), 110 Stat. 1214 (1996) (codified in 18 U.S.C. § 2339B): 89 18 U.S.C. § 2339B (2006). 90 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 302(a), 110 Stat. 1214 (1996) (codified at 8 U.S.C. § 1189(a)(2)(B)). 91 BLAcK's LAw D1cnoNARY 724 (8th ed. 2005) (defining "knowledge" as "[a]n awareness or understanding of a fact or circumstance; a state of mind in which a person has no substantial doubt about the existence of a fact"). 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 305 the organization is a designated terrorist organization" or that the organization has engaged or engages in terrorist activity or terrorism.92 There is no consideration of what the individual's actual in­ tent was under § 2339B. It is enough that the individual provided "expert advice or assistance" to an organization that he or she knew had been designated as an ITO. Under this standard the individ­ ual who provided the "expert advice or assistance" could be crimi­ nally liable regardless of what his or her actual intent was at the time. This clearly does not follow Scales's requirement of possessing a specific intent to further the unlawful aims of the organization. Section 2339B includes no requirement of specific intent to further the illegal aims of an organization as required by Scales. The requirement that "a person must have knowledge that the or­ ganization is a designated terrorist organization" does not equate a specific intent requirement because the actual intent of the indi­ vidual is irrelevant.93 Without requiring specific intent the statute is most likely unconstitutional on its face, at least concerning the pro­ vision of "expert advice or assistance," because the individual could be providing expert advice to an ITO on how to end their violent ways. Under§ 2339B, criminal liability would be imposed "without regard to the purpose or effect of the actual support provided" or the actual intent of the person providing the support.94 Ultimately, § 2339B criminalizes individuals for being associ­ ated with a politically disfavored group that has been designated as an FTO. Professor David Cole, one of the main opponents of the amended material support statute, has characterized § 2339B as: a classic instance of guilt by association. It imposes liability re­ gardless of an individual's own intentions or purposes, based solely on the individual's connection to others who have com­ mitted illegal acts. Moreover, it imposes liability highly selec­ tively .... [I] t selectively prohibits material support only to those groups that the Secretary of State in his [or her] discretion chooses to designate.95 The selectivity and the lack of a specific intent requirement result in a statute that is open to extremely broad interpretations and has

92 18 U.S.C. § 2339B(a)(l) (2006) (using "terrorist activity" as defined in section 212(a)(3)(B) of the Immigration and Nationality Act and "terrorism" as defined in section 140(d) (2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989). 93 18 U.S.C. § 2339B(a) (1) (2006). 94 Cole, supra note 81, at 9-10. 95 Id. at 10. 306 NEW YORK CITY LAW REVIEW [Vol. 13:291 been used as a preventive law enforcement tool because § 2339B "do[es] not require proof that an individual intended to further any terrorist activity."96

3. The Case of Javed Iqbal The case ofJaved Iqbal shows how the lack of a specific intent requirement in § 2339B can lead to the prosecution of individuals who have no intent to further the illegal activity of a group. Iqbal was a Pakistani immigrant who had been in the United States for over 20 years.97 He operated a small company out of a Brooklyn storefront and from his garage located at his home in Mariners Harbor, Staten Island.98 Iqbal's business was called HDTV Ltd., and provided satellite television packages and broadcasts to its cus­ tomers.99 Iqbal was indicted for providing services that included satellite broadcasts of the television station, Al-Manar.100 Al-Manar is controlled by the designated FTO Hezbollah.101 Because Al­ Manar was controlled by an ITO, Iqbal was charged under the sec­ ond material support statute, 18 U.S.C. § 2339B, for providing ma­ terial support in the form of "expert advice or assistance and facilities" to an FT0.102 If convicted of the charges contained in the indictment Iqbal would have faced "a maximum sentence of llO years imprisonment."103 Iqbal pied guilty and recently received a sentence of 69 months.104 The broad interpretation of § 2339B as applied to the case of Javed Iqbal has serious First Amendment issues. There is no re-

96 Id. at 9. 97 William K Rashbaum, Law Put to Unusual Use in Hezbollah TV Case, Some Say, N.Y. TIMES, Aug. 26, 2006, at B2. 98 Timothy Williams and William K Rashbaum, Man on Staten Island Is Charged in Sale of Access to Hezbollah Tv, N.Y. TIMES, Aug. 25, 2006, at Bl. 99 Press Release, U.S. Attorney Southern District of New York, U.S. Arrests Two for Supporting Hizballah (Nov. 20, 2006), available at http://www.usdoj.gov/usao/nys/ pressreleases/November06/iq balandelahwalindictmentpr. pdf. 100 See Al-Manar TV, http://www.almanar.com.lb/newssite/HomePage.aspx?lang uage=en (last visited Mar. 3, 2010);Jennifer 8. Lee and William K Rashbaum, Man Posts Bail in Hezbollah TV Case, N.Y. TIMES, Aug. 29, 2006. IOI Jennifer 8. Lee and William K. Rashbaum, Man Is out in Case ofAccess to Hezbollah Tv, N.Y. TIMES, Aug. 29, 2006, at B4; Indictment at 1 3, United States v. Iqbal, No. Sl 06 Cr. 1054 (S.D.N.Y. 2006) (stating that Hezbollah was designated as an FTO on or about Oct. 8, 1997). 102 Indictment at 1 9, United States v. Iqbal, No. Sl 06 Cr. 1054 (S.D.N.Y. 2006). 103 Press Release, U.S. Attorney Southern District of New York, U.S. Arrests Two for Supporting Hizballah (Nov. 20, 2006), available at http://www.usdoj.gov/usao/nys/ pressreleases/November06/iqbalandelahwalindictmentpr.pdf. 104 Beajamin Weiser, S.I. Man Gets Prison Term for Aid to Hezbollah Tv, N.Y. TIMES, Apr. 24, 2009, at A22. 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 307 quirement that Iqbal intended to further the illegal aims of Hezbollah and under Scales Iqbal should not be held criminally lia­ ble. Hezbollah is a Lebanese political and military organization that was formed in the 1980s to drive Israeli forces from Lebanon. Hezbollah also has several seats in the Lebanese parliament. Thus, Hezbollah has both legal and illegal aims since they provide a wide variety of social services such as medical care and education ser­ vices to various communities throughout Lebanon. To be punished under Scales, Iqbal must possess the specific intent to further the unlawful goals of the organization. There is no evidence that Iqbal sought to support the illegal aims of Hezbof­ lah by providing customers with access to Al-Manar. Furthermore, there is no evidence that Iqbal sought to support any goals of Hezbollah. The only evidence that the government cites is the ex­ change of satellite broadcasts for money.105 Hezbollah did pay Iqbal, but this only proves that a business connection existed be­ tween the two, not that Iqbal intended to further the terrorist activ­ ity of Hezbollah by providing "expert advice or assistance." Scales demands much more. First Amendment challenges were raised to the criminal charges but the judge rejected them. Judge Richard M. Berman ruled "that the prosecution was based not on the content of speech but on conduct-allegations that [Iqbal] provided material sup­ port to a foreign terrorist group."106 Judge Berman's focus on the conduct of providing material support when that material support is "expert advice or assistance" is constitutionally troublesome be­ cause the speech is being criminalized based on the identity of the recipient. There is no consideration of Iqbal's intent under Judge Berman's ruling. This constitutes guilt by association because it does not follow the Scales requirement of specific intent to further the unlawful acts of an organization. The lack of a specific intent requirement allows for the prose­ cution of individuals that did not intend to further the illegal activi­ ties of a group. Under § 2339B, an individual like Iqbal can be punished for being associated with a group such as Hezbollah that has both legal and illegal aims. The only protection against the government's broad interpretation of§ 2339B following Septem­ ber 11 is to require specific intent.

105 Indictment at ii 13, United States v. Iqbal, No. Sl 06 Cr. 1054 (S.D.N.Y. 2006). 106 Benjamin Weiser, A Guilty Plea in Providing Satellite TV for Hezbollah, N.Y. TIMES, Dec. 24, 2008, at A21. 308 NEW YORK CITY LAW REVIEW [Vol. 13:291

C. Criminalizing Pure Speech: Where's Brandenburg? The addition of "expert advice or assistance" to the definition of material support and the prohibition on all "expert advice or assistance" does not satisfy the constitutional requirements set forth in Brandenburg v. Ohio. 107 Brandenburg states, "[T] he constitu­ tional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or produc­ ing imminent lawless action and is likely to incite or produce such ac­ tion. "108 The Court reasoned that '" [ t] he mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action"'109 and therefore "[a] statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control."110 Under 18 U.S.C. § 2339B any and all "expert advice or assis­ tance" provided to a designated FTO is criminalized. "Expert ad­ vice or assistance" should clearly be considered pure speech because the term encompasses both written and spoken words and conduct that conveys information and ideas.11 1 Under the current construction, an attorney working on human rights issues in the Occupied Palestinian Territories who provides advice or assistance to a leader of Barnas concerning how they can conduct themselves so they do not violate international human rights conventions could potentially be prosecuted for providing non-violent advice. The attorney's speech would be criminalized regardless of whether it was "directed to inciting or producing imminent lawless action and [was] likely to incite or produce such action."112 This construc­ tion is in violation of Brandenburg. The prohibition on all "expert advice or assistance" without regard to its connection to lawless activity is in violation of Branden­ burg and creates a chilling effect on protected speech. The case of Javed Iqbal illustrates this because he was providing the satellite broadcasts of Al-Manar, Hezbollah's satellite television station.11 3

107 Brandenburg v. Ohio, 395 U.S. 444 (1969). 108 Id. at 447 (1969) (emphasis added). 109 Id. at 447-48 (quoting Noto v. United States, 367 U.S. 290, 297-98 (1961) ). 110 Id. at 448. 111 See BLACK'S LAw DICTIONARY 1168 (8th ed. 2005). 112 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). 113 See Indictment at if 9, United States v. Iqbal, No. Sl 06 Cr. 1054 (S.D.N.Y. 2006). 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 309

Al-Manar's programming is "sophisticated and diverse, ranging from soap operas and dramas, produced in Syria and Iran," to mu­ sic videos and religious programming.114 Some of the program­ ming can be characterized as "racist and anti-Semitic" and has included programming that promotes suicide bombings against American troops in Iraq.11 5 However, Iqbal was importing and dis­ tributing a newsfeed or satellite programming. He wasn't recruit­ ing suicide bombers to attack American troops in Iraq and there was no evidence that he was broadcasting Al-Manar to incite immi­ nent lawless action. Iqbal's conduct was contributing to the free marketplace of ideas. Iqbal's advice or assistance provided by broadcasting Al-Manar's programming cannot be punished unless his advocacy was directed at inciting or producing imminent law­ less action and was likely to incite or produce such action. There is no evidence to suggest that the broadcasting resulted in a clear and present danger to the public welfare and therefore the criminaliza­ tion of Iqbal's conduct constitutes censorship of pure speech. The broad scope of what the government has decided falls within the definition of material support forces individuals to look at what programming they provide and what information they are associated with. An individual's actual intent is not the main con­ sideration under § 2339B. Rather, criminalization hinges on the organization the support is provided to and the content associated with that group. If the group is an FTO and they support illegal and legal aims, an individual could be prosecuted regardless of whether their advice had anything to do with lawless activity. This can only lead to less and less information and viewpoints being rep­ resented in the marketplace of ideas. More speech is the answer and tolerance of that speech is what Brandenburg requires as long as the speech is not "directed to inciting or producing imminent law­ less action [that] is likely to incite or produce such action."116 The second material support statute, 18 U.S.C. § 2339B, vio­ lates the First Amendment of the U.S. Constitution because it does not include the provisions required by Scales and Brandenburg. Sec­ tion 2339B has been unconstitutionally applied to the case ofJaved Iqbal and this illustrates how the broad interpretation has allowed authorities to "sweep up large numbers of people without having to prove that [they] engaged in specific harmful conduct."117 This

114 Timothy Williams and William K. Rashbaum, New York Man Charged with Ena- bling Hezbollah Tel.evision Broadcasts, N.Y. TIMES, Aug. 25, 2006, at Bl. 115 Id. 116 Brandenburg, 395 U.S. at 447. 117 Cole, supra note 81, at 4. 310 NEW YORK CITY LAW REVIEW [Vol. 13:291 reeks of the McCarthy era and should be seriously addressed to prevent the further constriction and censorship of the freedom of expression. 118

III. BURYING McCARTHY: A NEw MATERIAL SuPPORT APPROACH The second material support statute, § 2339B, does not ade­ quately ensure that individuals will possess the specific intent to further a designated group's illegal conduct as required in Scales, nor does it require that the speech be directed at inciting or pro­ ducing imminent lawless action as required by Brandenburg. The statute prohibits support that is directed toward the legal political or social goals of a group the same as it prohibits support for the illegal aims of the group. A few significant changes can help make § 2339B agree with the First Amendment. First, the statute must include a requirement of specific intent to further the illegal aims of an FTO where the FTO has both ille­ gal and legal goals. This is the only way to construct § 2339B so that it is in accord with the First Amendment right of free association. Punishing individuals for the illegal aims of a group where they had no intention to further those aims constitutes guilt by associa­ tion and has no place in our justice system no matter what the situation may be. Our system focuses on personal guilt and there must be a connection between a group's illegal goals and the indi­ vidual's intent that is being prosecuted.119 Scales illustrates the de­ gree of the connection and requires that "a defendant 'specifically intend(s) to accomplish (the aims of the organization) by resort to violence.' "120 This is what justice requires and this needs to be in­ cluded within § 2339B. The statute cannot criminalize "expert advice or assistance" that is not directed at inciting or producing imminent lawless activ­ ity. To be consistent with Brandenburg there must be an exception for the provision of non-violent advice and assistance. This would not be so difficult because Congress has previously considered a licensing scheme that would allow for individuals to donate or pro­ vide material support to an FTO as long as they sought permission from the Secretary of State.121 The previously proposed licensing

118 See id. 119 Scales v. United States, 367 U.S. 203, 224-25 (1961). 120 Id. at 229 (quoting Noto v. United States, 367 U.S. 290, 299 (1961)). 121 The proposed licensing scheme provided: (e) AUTHORIZED TRANSACTIONS- (!) The Secretary shall publish regulations, consistent with the pro­ visions of this subsection, setting forth the procedures to be fol- 2010] MATERIAL SUPPORT AND THE FIRST AMENDMENT 311

scheme allowed for aid that was "exclusively for religious, charita­ ble, literary, or educational purposes."122 This could be updated and enacted to provide licensing to individuals seeking to provide "expert advice or assistance" for religious, charitable, literary, or educational purposes. This licensing scheme would work to ensure that the only material support that was punished could be charac­ terized as creating or posing a danger to the public welfare. These two substantive changes would help relieve § 2339B of its problematic First Amendment issues because guilt would be im­ posed based on the intent of the defendant rather than on the identity of the recipient of the support. The licensing scheme would provide individuals who sought to only support the legiti­ mate legal goals or activities of an FTO to do so. Thereby, the stat­ ute would specifically target conduct that intends to support terrorist activity.

lowed by persons seeking to raise or provide funds for an organization designated under subsection (c) (1). (2) Any person within the United States, or any person subject to the jurisdiction of the United States anywhere, who seeks to solicit funds for or to transfer funds to any organization or person desig­ nated under subsection (c) shall, regardless of whether it has an agency relationship with the designated organization or person, first obtain a license from the Secretary and may thereafter solicit funds or transfer funds to a designated organization or person only as permitted under the terms of a license issued by the Secretary. (3) The Secretary shall grant a license only after the person estab­ lishes to the satisfaction of the Secretary that- (A) the funds are intended to be used exclusively for religious, charitable, literary, or educational purposes; and (B) all recipient organizations in any fund-raising chain have effective procedures in place to ensure that the funds (i) will be used exclusively for religious, charitable, literary, or educa­ tional purposes, and (ii) will not be used to offset a transfer of funds to be used in terrorist activity. ( 4) Any person granted a license shall maintain books and rec<;>rds, as required by the Secretary, that establish the source of all funds it receives, expenses it incurs, and disbursements it makes. Such books and records shall be made available for inspection within two business days of a request by the Secretary. Any person granted a license shall also have an agreement with any recipient organiza­ tion or person that such organization's or person's books and records, wherever located, must be made available for inspection of the Secretary upon a request of the Secretary at a place and time agreeable to that organization or person and the Secretary. (5) The Secretary may also provide by regulation procedures for the licensing of transactions otherwise prohibited by this section in cases found by the Secretary to be consistent with the statement of purpose in subsection (a) (2). S. 390, 104th Cong.§ 301 (1995) (proposing 18 U.S.C. § 2339B(e)(3)(A) & (B)). 122 Id. 312 NEW YORK CITY LAW REVIEW [Vol. 13:291

CONCLUSION The terrorism support statutes have been radically reinter­ preted following the September 11 attacks as a result of the Depart­ ment ofJustice's shift toward a preventive law enforcement system that was justified by exigency to stop a terrorist attack. However, the use of the material support statute following the attacks has violated First Amendment rights of association and speech. The use of the statute in this manner is unjustified because its interpre­ tation is so broad that it swept up within it individuals such as Javed Iqbal, who did not have any intention of supporting terrorist acts. The broad interpretation was used as a means to institute a system of preventive law enforcement but has resulted in the misdirection of preventive efforts because time, money, and other resources have been directed at prosecuting individuals who did not intend to support violent acts of terror. The second material support stat­ ute should be amended to prevent further violations of the First Amendment and to protect the robust marketplace of ideas that American jurisprudence has embraced since its founding. A MORE INCLUSIVE DEMOCRACY: CHALLENGING FELON JURY EXCLUSION IN NEW YORK

Paula Z. Segalt

ABSTRACT New York excludes all individuals who have ever been convicted of a felony from its jury pool except in the most ex­ traordinary circumstances.1 This practice undermines the repre­ sentativeness of juries, their inclusiveness, as well as public confidence in the courts. It leaves whole communities under­ represented in one of the foundations of democracy. It also com­ promises an Individual's constitutional rights. People with felony­ conviction histories are included in the jury pools of nearly half of United States jurisdictions, yet the effectiveness of judicial systems in those jurisdictions has not been compromised. The mechanisms for insuring that juries are competent and unbiased-voir dire, per­ emptory challenges and challenges for cause-all work in those ju­ risdictions without alienating a segment of the population from the mechanisms of civic participation. The citizens of New York de­ serve no less.

Copyright © 2011 by Paula Z. Segal. t J.D. Candidate, 2011, Haywood Burns Fellow in Civil and Human Rights, Belle Zeller Scholar, City University of New York School of Law. Thank you to Juan Carta­ gena at Community Service Society of New York for asking the question and to Profes­ sor Ruthann Robson for her guidance in developing the answer into this Note. Thank you also to family and friends who have cheered me on through the writing process. 1 See infra note 3.

313 314 NEW YORK CITY LAW REVIEW [Vol. 13:313

CONTENTS INTRODUCTION...... 315 l. BANISHED FROM DEMOCRACY ...... 317 II. HISTORY OF NEw YoRK's JuRY PooL...... 327 A. Evolution of Felon Jury Exclusion in New York . . 327 B. Expanding New York's Jury Pool ...... 331 III. CONSTITUTIONAL CHALLENGES . . . • • . • . . . . • . • ...... • . . 332 A. "Drawn From a Fair Cross Section of the Community"...... 335 1. Excluding Individuals with Felony-Conviction Histories is a Prima Facie Violation of the Fair-Cross-Section Requirement ...... '347 2. Excluding African Americans and Hispanics is a Prima Facie Violation of the Fair-Cross- Section Requirement ...... 350 3. Excluding African American and Hispanic Men ...... 351 4. Justifying the Infringement: New York's "S"1gm "fi 1can t" I n t eres t ...... 352 B. Equal Protection ...... 360 1. Jurors' Right to Non-Discriminatory Jury Construction ...... 360 2. Irrational Classification: Felons versus Misdemeanants ...... 361 3. Heightened Scrutiny for "Felons" ...... 369 4. Strict Scrutiny for a Fundamental Right ...... 373 5. Disparate Racial Impact in Jury Selection ... . 377 C. Due Process ...... 383 IV. CONCLUSION .•...... 384 • 2010] CHALLENGING FELON JURY EXCLUSION 315

INTRODUCTION Thomas Jefferson called the jury the "school by which the peo­ ple learn the exercise of civic duties as well as rights."2 Yet many citizens are permanently expelled from the jury system. Felon jury exclusion disqualifies anyone with a history of felony conviction from the jury pool in New York State.3 Anyone who has ever taken a guilty plea to a charge that he or she was in possession of eight ounces of marihuana, rather than stand trial, will never be in­ cluded in the jury pool.4 Neither will anyone ever convicted of scalping tickets to a sporting event where there was a premium of $1000 or more over the price of the tickets;5 nor anyone who was once convicted of a crime that was at the time a felony but is not one today for reasons of having been reduced to a misdemeanor or declared unconstitutional.6 New York law disqualifies anyone who was at any time in his or her life convicted of a crime for which the court could have chosen a sentence of a year or more incarceration from jury service for life. 7 Citizens who have conviction histories do not adversely affect the judicial process by being included in the jury pool. The prevail­ ing argument in favor of felon jury exclusion is simply a deference to stereotyped notions about jury purity, divorced from the realities of jury selection.8 The law's conflation of a felony-conviction his-

2 LINDA KERBER, No CoNSTITUTIONAL RIGHT TO BE LADIES 129 (1998). 3 People v. Adams, 747 N.Y.S.2d 909, 915 (Sup. Ct. Kings Cnty. 2002). There is a very narrow exception: the issuance of a Certificate of Relief from Disabilities ("CRD"), see N.Y. CORRECT. LAw § 701 (McKinney 2003 & Supp. 2010), or a Certifi­ cate of Good Conduct ("CGC"), see N.Y. CORRECT. LAw § 703-a (McKinney 2003 & Supp. 2010), relieves a convicted person of the automatic bar from serving on a jury. See 1991 N.Y. Op. Att'y Gen. 38, 42-44 (1991). However, the determination whether a person is then eligible for jury service is at the discretion of the Commissioner of Jurors. Id. Even when a person convicted of a felony does receive a CRD or a CGC, it does not actually restore the right to serve on the jury. Adams, 747 N.Y.S.2d at 915. The author spoke to a representative of the Commissioner who said that, although there is no available data for the number of people who become re-qualified to serve on a jury by getting either Certificate, the number is "very small." Telephone Inter­ view with Elissa Krauss, Research Coordinator, Unified Court System's Office of Court Research:Jury Trial Project (Nov. 12, 2009). 4 See N.Y. PENAL LAw § 221.20 (McKinney 2008). 5 See infra note 27 and accompanying text. 6 Telephone Interview with Elissa Krauss, supra note 3. 7 N.Y. PENAL LAw § 10.00(5) (McKinney 2009). Similarly, federal law states that an individual who "has a charge pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime punishable by impris­ onment for more than one year and his civil rights have not been restored" shall not be deemed qualified to serve on grand and petitjuries in the district court. 28 U.S.C. § 1865(b) (5) (2006). 8 See infra Part III.A.3. 316 NEW YORK CITY LAW REVIEW [Vol. 13:313 tory with a bias that would affect jury deliberations has resulted in the abrogation of citizens' rights to participate in a key democratic institution. Simultaneously, it is a threat to civil litigants' and crimi­ nal defendants' rights to impartial juries drawn from their communities. The exclusion particularly bars participation by members of those communities whose ties to the democratic process are al­ ready weak. Through the racial disparities in the criminal justice system, a disproportionate number of minority citizens are ex­ cluded from the jury pool.9 Researchers estimate that 33% of Afri­ can American males have felony-conviction histories. IO Felon jury exclusion is at cross-purposes with the inclusive goals of the American jury system. To make up for a shortage of jurors, New York courts have reformed the jury recruitment pro­ cess at great cost.11 However, New York continues to ban a large swath of citizens from inclusion in the pool due to felon jury exclu­ sion.12 Eliminating the blanket exclusion would expand the jury pool, make juries more inclusive and representative, and help inte­ grate citizens who have completed their criminal sentences into democratic society. Permanent felon exclusion is vulnerable to a challenge through litigation: it is likely a violation of the fair-cross-section re­ quirement imposed on all criminal and civil juries by New York law and the U.S. Constitution, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment.13 This Note presents a history of New York's felon jury exclu­ sion, discusses the effects it is having on present-day juries and communities, and describes the constitutional deficiencies of the practice. Part One describes the effects of the exclusion in New York and presents some alternatives to New York's policy. Part Two presents the legislative history of the exclusion and efforts to re-

9 See infra notes 37-42 and accompanying text. IO Christopher Uggen,Jeff Manza & Melissa Thompson, Citizenship, Democracy, and the Civic Reintegration of Criminal Offenders, 605 ANNALS OF AM. ACAD. PoL. & Soc. Ser. 281, 290 tbl.2 (2006). 11 S,ee infra notes 102-13 and accompanying text. 12 See N.Y. Juo. LAw § 510(3) (McKinney 2003). 13 The Fair Cross-Section requirement is imposed on criminal juries, see infra notes 141-42 and accompanying text, by the "impartial jury" requirement of the Sixth Amendment to the Constitution, see infra notes 124-26 and accompanying text, and on civil juries through the Supreme Court's application of Sixth Amendment princi­ ples in the civil context, see infra notes 127-35, and its supervisory authority, see infra note 130 and accompanying text, and the requirements of the Due Process Cl;;tuse of the Fourteenth Amendment. U.S. CoNST. amend. XIV, §1. 2010] CHALLENGING FELON JURY EXCLUSION 317 form New York's jury system aimed at expanding the jury pool and increasing participation by citizen jurors. Part Three presents via­ ble constitutional challenges to the exclusion under the fair-cross­ section requirement and the Due Process and Equal Protection Clauses. Felon jury exclusion suffers all the infirmities of an unsus­ tainable policy. In light of its effects and constitutional flaws, the policy should be re-examined.

I. BANISHED FROM DEMOCRACY New York's felon jury exclusion law works to the detriment of the democratic process and creates a class of permanent political exiles, disproportionately concentrated in poor urban communities. Anyone with a felony-conviction history is disqualified from the jury pool in New York for life. The New York statute plainly states, "to qualify as a juror a person must . . . [n] ot have been convicted of a felony."14 New York defines "felon" as anyone con­ victed of a crime for which he or she could have been sentenced to incarceration for a year or more.15 This requirement is uniform for all juries in the New York State court system.16 This policy stands in contrast to New York's restoration of con­ victed individuals' right to vote upon completion of her sentence of incarceration or period of parole.17 Felon jury exclusion creates

14 N.Y. Jun. LAw § 510(3). 15 N.Y. PENAL LAw § 10.00(5) (McKinney 2009). An individual convicted of any crime for which he or she could have received a sentence of a year or more incarcera­ tion but was actually sentenced to probation or a lesser period is nevertheless disquali­ fied from the jury pool for life. For example, crimes that describe drug use, possession, and sale in small quantities are all felonies under New York Penal Law, with sentencing left to the discretion of judges. See N.Y. PENAL LAw § 220.46 (McKin­ ney 2008) (Criminal injection of a narcotic drug); N.Y. PENAL LAw § 221.20 (McKin­ ney 2008) (Criminal possession of marihuana in the third degree-more than 8 ounces); N.Y. PENAL LAw § 221.45 (McKinney 2008) (Criminal sale of marihuana in the third degree-more than 25 grams). 16 SeeN.Y.Jun. LAw § 510(3). 17 The New York statute provides: No person who has been convicted of a felony pursuant to the laws of this state, shall have the right to register for or vote at any election un­ less he shall have been pardoned or restored to the rights of citizenship by the governor, or his maximum sentence of imprisonment has ex­ pired, or he has been discharged from parole. The governor, however, may attach as a condition to any such pardon a provision that any such person shall not have the right of suffrage until it shall have been sepa­ rately restored to him. N.Y. ELEc. LAw § 5-106(2) (McKinney 2007). See Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) (en bane), for a challenge to this statute as a violation of the Voting Rights Act. In Hayden v. Paterson, 594 F.3d 150, 164-65, 171 (2d Cir. 2010), the Second Cir- 318 NEW YORK CITY LAW REVIEW [Vol. 13:313 a permanent bar to, participation in one of the foundational insti­ tutions of American democracy. Before the proliferation of the penitentiary for physically ex­ cluding law-breakers from society, "civil death" was generally im­ posed in continental Europe on a case-by-case basis on those whose offenses were serious enough to warrant exclusion but not serious enough for the death penalty to be imposed.18 It entailed, among other things, the permanent loss of the right to vote, to enter into contracts, and to inherit or bequeath property; the offender was treated as if already dead.19 Today almost all individuals convicted of crimes in the United States return to society in a physical sense, some immediately following conviction, but their citizenship rights return in a much more limited sense. Felon jury exclusion is one of a constellation of permanent disabilities imposed on those with conviction histories.20 Although governments that assign such disa­ bilities do not exile those who have run afoul of the law in penal colonies or physically exclude them from the population, 21 upon releai;e from prison or discharge from non-incarceration sentences individuals with conviction histories find themselves in an internal exile disturbingly similar to "civil death."22 Jury exclusion applies to those who have been incarcerated and those who have not. All individuals living in New York commu­ nities who have histories of being convicted of crimes for which they could have been sentenced to a year in prison are excluded from the jury pool, regardless of the age of the conviction, where the conviction occurred, or the sentence the individual actually re­ ceived. An individual convicted of a felony as a young adult contin­ ues to be excluded from the jury pool until his or her death.23

cuit dismissed the claims that New York's felon disenfranchisement statute was a viola­ tion of the Fourteenth and Fifteenth Amendments while acknowledging that disenfranchisement statutes, when first enacted, were motivated in part by discrimina­ tory intent against citizens who were not white. For an overview and history of felon disenfranchisement in United States, see Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & PoL'Y REV. 153, 154-61 (1999) [hereinafter Internal Exile]. For recent trends tending to make felon disenfranchisement less prevalent in states nationwide, see generally Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disen­ franchisement, 56 STAN. L. REv. 1147, 1150-64 (2003-2004). 18 See Internal Exile, supra note 17, at 154. 19 Id. 20 Id. 21 The federal government excludes immigrants who carry foreign criminal con­ victions. See Nora V. Demleitner, Thwarting a New Start? Foreign Convictions, Sentencing and Collateral Sanctions, 36 U. ToL. L. REv. 505, 506-09 (2005). 22 See Internal Exile, supra note 17, at 154-55. 23 There is a narrow exception. See supra note 3. 2010] CHALLENGING FELON JURY EXCLUSION 319

Felon jury exclusion, as a lifetime infirmity, applies to individuals convicted under New York statutes later held unconstitutional, re­ moved from the penal law, or reclassified as misdemeanors. 24 Since 1977, the year that New York's jury qualification law was last revised and felon exclusion deliberately retained, 25 the number of people touched by the criminal justice system in the United States and in New York State has exploded. In 2008, the United States had more than 7.3 million adults-one in 31-under crimi­ nal justice supervision.26 In New York State in 2007, the latest year for which data is available, there were nearly 63,000 people incar­ cerated in state prisons, 30,000 detained in local jails, 123,000 on probation, and another 43,000 under parole supervision.27 If cur­ rent national incarceration trends continue, an estimated 1 in 15 people born in 2001 will serve time in state or federal prison dur­ ing their lifetime. 28 There has also been a dramatic expansion of the number of felony prosecutions since New York's jury qualifications were re­ formed in 1977.29 State court felony filings increased 36% between 1978 and 1984. 30 The increase accelerated in the 1980s: between 1985 and 1991, felony filings rose by more than 50%.31 Available data about how many people have histories of being

24 Telephone Interview with Elissa Krauss, supra note 3. Individuals convicted of felonies in other jurisdictions that would not have been felonies in New York are likewise excluded. Even when the judge who hears the details of a particular case determines that incarceration is unwarranted or would not serve the purposes of the criminal law, if the judge could have sentenced the defendant to a year in prison for the crime of which the defendant has been convicted, New York's felon jury exclusion statute applies. See N.Y. JuD. LAw § 510(3) (McKinney 2003); N.Y. PENAL LAw § 10.00(5) (McKinney 2008). 25 See infra notes 89-94 and accompanying text. 26 THE PEw Ora. ON THE STATES, ONE IN 31: THE LoNG RE.AcH OF AMERICAN CoRRECTIONS 5 (2009), http:/ /www.pewcenteronthestates.org/uploadedFiles/PSPP_ lin3l_report_FINAL_WEB_3-26-09.pdf. 27 NEW YoRK STATE DIV. OF CRIMINAL JusncE SERVS., NEw YoRK STATE CRIMINAL JUSTICE 2007 CRIMESTAT REPORT, 32-40 (Mar. 2008). http:/ /www.criminaljustice.state. ny. us/ pioI annualreport/2007crimestatreport. pdf. 28 THOMAS P. BoNcZAR, U.S. DEP'T OF JusTICE, PusL'N No. NCJ 197976, PREVA­ LENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974-2001, 7 (2003)' http:/ /bjs.ojp. usdoj.gov/index.cfm?ty=pbdetail&iid=836. 29 See William J. Stuntz, The Pathologi,cal Politics of Criminal Law, 100 M1cH. L. REv. 505, 536 (2001). 30 NAT'L CTR. FOR STATE COURTS, STATE COURT CAsELOAD STATISTICS: ANNUAL REPORT 1984, 189-90 tbl.35 (1986), availabl,e at http://contentdm.ncsconline.org/ cdm4/item_viewer.php?CISOROOT=/ctadmin&CISOPTR=609&REC=2. 31 NAT'L CTR. FOR STATE COURTS, STATE COURT CAsELOAD STATISTICS: ANNUAL RE­ PORT 1991, 37 tbl.1.25 (1993), availabl,e at http://contentdm.ncsconline.org/cdm4/ item_viewer.php?CISOROOT=/ctadmin&CISOPTR=616&REC=l. 320 NEW YORK CITY LAW REVIEW [Vol. 13:313 convicted or placediunder correctional supervision is more specu­ lative than data about who is currently under such supervision. Based on demographic life tables, researchers estimate that there are approximately 11. 7 million former felons nationwide, plus 4.4 million individuals who have been convicted of felonies that were currently under criminal justice supervision as of 2004.32 A total of approximately 16. l million people nationwide made up this "felon class," approximately 7% of the adult population.33 In 1978, ap­ proximately 4. 7 million people had felony-conviction histories, ap­ proximately 3% of the adult population.34 The criminal justice system has disparate impact by race and gender. One in 18 men was under correctional supervision in 2008, compared to one in 89 women.35 The impact of the criminal justice system on men has increased over the last three decades: in 1978, 5 % of the adult male population had felony-conviction histo­ ries; in 2004, 13%.36 The racially skewed impacts of the criminal justice system have long been accepted as fact by researchers.37 Courts, too, have come to accept that criminal justice systems discriminate by race.38 A re­ port by the Pew Center on the States underscores serious discrep­ ancies when the numbers of those under correctional supervision in 2008 were dissected by race and gender. Nationwide, 1 in 11 African American adults and 1 in 27 Hispanic adults are under cor-

32 See Uggen et al., supra note 10, at 290 tbl.2. 33 Id. at 288 fig.2. 34 Id. at 290 tbl.2. 35 See THE PEW CTR. ON THE STATES, supra note 26, at 7. 36 See Uggen et al., supra note 10, at 290 tbl.2. 37 See generally, e.g., Toon CLEAR, IMPRISONING COMMUNITIES: How MAss INCARCERA­ TION MAKEs DISADVANTAGED NEIGHBORHOODS WoRSE 63-67 (2007); DAVID CoLE, No EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYsTEM (1999); John Donohue Ill & Steven Levitt, The Impact of Race on Policing and Arrests, 44].L. & EcoN. 367 (2001); Mary .Romero, State Violence, and the Social and Legal Construction of Latino Criminality: From El Bandido to Gang Member, 78 DENV. U. L. REv. 1081, 1088-98 (2001). 38 The federal district court for the Eastern District of Washington State and the Ninth Circuit Court of Appeals have both accepted evidence of racial discrimination in Washington's criminal justice system. See Farrakhan v. Gregoire, 590 F.3d 989, 1009 -12 (9th Cir. 2010) ("Washington's criminal justice system adversely affects minorities to a greater extent than non-minorities ... this differential effect cannot be explained by factors other than racial discrimination."); Farrakhan v. Gregoire, No. CV-96-076- RHW, 2006 WL 1889273, at *4-6 (E.D. Wash.Jul. 7, 2006); see generally Kevin R.John­ son, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni­ Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 GEO. LJ. 1005 (2010) (explaining that the U.S. Supreme Court has promoted racial profiling in immigration enforcement and traffic stops). 2010] CHALLENGING FELON JURY EXCLUSION 321 rectional supervision, compared to 1 in 45 whites.39 The likelihood of a person in 2001 serving time in federal or state prison rises to 1 in 6 for Hispanic males and to 1 in 3 for African American males.40 African American males born from 1965 to 1969 were more likely to have prison records in 2004 (22%) than either military records (17%) or bachelor's degrees (13%).41 Professor Christopher Ug­ gen's projections on who was in the "felon class" in 2006 and 1978 are illustrative: in 1978, almost 8% of African Americans and 13% of African American males were in the felon class; by 2004, the class had exploded to include 22% of African American adults and 33% of African American adult males.42 It is hard to capture what precise effect felon jury exclusion has on racial representativeness of particular juries but it certainly contributes to disparities visible in New York's juries. Based on 2000 Census counts, Blacks and Latinos in New York are prose­ cuted, convicted, and sentenced to incarceration at rates substan­ tially disproportionate to whites: although Blacks constituted 15.9% of the state population, they comprised 54.3% of the prison population and 50.0% of the parolee population in New York; al­ though Latinos constituted 15.1 % of the state population, they comprised 26.7% of the prison population and 32.0% of the pa­ rolee population in New York; and although whites constituted 62.0% of the state population, they comprised only 16.0% of pris­ oners and parolees.43 Collectively, Blacks and Latinos constituted 81.0% of the total prison population in 2000 and 82.0% of the total parolee population, despite being only 31.0% of the overall state population.44 The exclusion's racial impacts have ripple effects that under­ mine the legitimacy of the judicial system in the eyes of minority communities.45 The Supreme Court has called the confidence of citizens "the very foundation of our system of justice."46 Empirical evidence suggests that members of some underrepresented groups have less confidence in the fairness of the jury system than do

39 See THE PEW CTR. ON THE STATES, supra note 26. 40 BoNcZAR, supra note 28, at 8 fig.4. 41 Becky Pettit & Bruce Western, Mass Imprisonment and the Life Course: Race and Class Inequality in U.S. Incarceration, 69 AM. Soc. REv. 151, 164 tbl.6 (2004). 42 Uggen et al., supra note 10. 43 Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). 44 Id. 45 See Kevin Johnson, Hernandez v. Texas: Legacies ofJustice and Injustice, 25 CHICANO­ LATrNo L. RE.v. 153, 193 (2005) (discussing the felon jury exclusion's effect of under­ mining the legitimacy of the judicial system in the eyes of the Latina/ o community). 46 Georgia v. McCollum, 505 U.S. 42, 49 (1992). 322 NEW YORK CITY LAW REVIEW [Vol. 13:313 members of well-represented groups. For example, a nationwide poll of nearly 800 people who had served on civil and criminal ju­ ries revealed that African American and white participants have fundamentally different views about the influence of race on jury verdicts, with African Americans perceiving the system as heavily weighted against minorities.47 Just under two-thirds of the African American respondents believed that minority criminal defendants receive unfair trials, while just under one-third of the white partici­ pants agreed.48 Nearly 70% of the African American jurors polled believed that the justice system is more likely to impose the death penalty unfairly on persons of color than on white defendants.49 In addition, more than 60% of the African American respondents felt that white plaintiffs experience fairer treatment in civil trials than do minority plaintiffs.50 More than two-thirds of African American jurors polled suggested that juries award more money to white plaintiffs than they award to African American, Asian, or Latino plaintiffs for comparable iajuries.51 This study found the following stark explanation offered by African American participantjurors for why they believe minorities receive such unfair treatment: "the Oury] system is run predomi­ nantly by whites."52 There appears to be a powerful correlation be­ tween the representativeness ofjury venires and public confidence in the fairness of the justice system.53 Blanket felon jury exclusion leaves those with conviction histo-

47 Arthur Austin, Racial Divide Affects Black, White Panelists, NAT'L LJ., Feb. 22, 1993, at SS-S9. 48 Id. at SS. 49 Id. at S9. 50 Id. at SS. 51 Id. 52 Racial Divide Affects Black, supra note 47 at SS. 53 The rebellion in Los Angeles following the acquittal of four police officers in the Rodney King beating by a jury that included no African Americans is an unusually dramatic, but nonetheless familiar, example of how non-representative tribunals erode public confidence in the legal system. More recently, another California jury with no African Americans acquitted of murder the officer who shot twenty-two year old Oscar Grant to death on the Fruitvale BART platform while he lay face down. Demian Bulwa, Verdict: Jury finds former BART officer guilty of involuntary manslaughter charge, S.F. CHRON., Jul. 9, 2010, at Al. The officer was convicted of involuntary man­ slaughter. Id. Again, taking to the streets was the public's response to the verdict. Id.; see also Tanya Coke, Note, Lady justice May Be Blind, But Is She A Soul Sister? Race Neutral­ ity and the Ideal of Representative juries, 69 N.Y.U. L. REv. 327 (1994) (discussing the prevalence of all-white juries in the United States in the twenty-first century, despite the perception that the U.S. Constitution promises a jury of "peers," and positing that the Court's non-discrimination principles in the area of jury selection are putting minority defendants and victims at a disadvantage). 2010] CHALLENGING FELON JURY EXCLUSION 323 ries geographically outside the borders of American democracy.54 Studies of the effects of the criminal justice system on the local level show that, even in a single city, the effects are undeniably felt disproportionately by a small number of neighborhoods. Fourteen of the fifty-nine community districts in New York City ("NYC"), home to only 17% of NYC's adult male residents, account for over 50% of all adult males sent to New York State prisons each year from NYC. 55 These neighborhoods are concentrated in three dis­ tinct areas of NYC: northern Manhattan, northeastern Brooklyn, and the South Bronx. 56 These communities within the borders of New York State are distinguished from the rest of the nation in their connection to and participation in the foundational institu­ tions of democratic process by the aggregation of geographic con­ centrations of criminal convictions and the citizenship-limiting effects of such practices as felon jury exclusion. Professor George Fletcher discusses "political disenfranchisement [as] a technique for reinforcing the branding of felons as the untouchable class of American society ... permanently banished from the political com-

54 See James M. Binnall, Sixteen Million Angry Men: Reviving a Dead Doctrine to Chal- 1,enge the Constitutionality ofExcluding Felons from Jury Service, 17 VA. J. Soc. PoL'Y & L. 1, 39-41 (2009) (discussing the isolating effect of felon jury exclusion on the formerly incarcerated). The restricted citizenship rights of citizens with conviction histories parallel the denial of rights to permanent residents, with one crucial difference­ permanent residents have the possibility of changing their status through naturaliza­ tion while U.S. citizens with criminal conviction histories have no hope of changing their histories. See Internal Exile, supra note 17, at 158-59. 55 See Justice Mapping Ctr., High Resettlement Neighborhoods: New York City (Oct. 2006), http://wwwJusticemapping.org/expertise/ (follow "NYC Analysis - Oct. 2006" hyperlink); CLEAR, supra note 37 (discussing corrosive effects of the criminal justice system on the communities from which a concentrated number of those incarcerated in the United States come from and return to). Clear points out the effects of mass incarceration on the internal society of communities-social disorganization, coercive mobility, a lack of public safety, and effects on human capital and social networks. Id. at 69-91. Permanent alienation from the democratic institution ofjury service further isolates these communities and their problems and pressures. See id. 56 As an example, the neighborhood of Brownsville is situated in Brooklyn's 16th Community District. This neighborhood is among those with Brooklyn's highest pro­ portion of residents living below the federal poverty line. The residents who live in District 16 are nearly all people of color. During 2003, 1 in 20 adult men in Brooklyn's 16th Community District was admitted to jail or prison-14 of every 1,000 adult men with a Brownsville address were admitted to a state prison and 38 of every 1,000 were admitted to a city jail at least one time. This figure does not reflect those living in the District who are on parole, probation or other community supervision. Even more troubling, 1 in every 12 young men between the ages of 16 and 24 go to either prison or jail from this District every year. JusTICE MAPPING CTR., supra note 55; see also CLEAR, supra note 37, at 65-67 (discussing Tallahassee). 324 NEW YORK CITY LAW REVIEW [Vol. 13:313 munity."57 The localized effects of the criminal justice system send whole communities "the message that they are inherently unrelia­ ble members of the democracy."58 Excluding those with felony-conviction histories from the jury pool denies those individuals and the communities they live in an opportunity for participating in a key democratic process. It adds force to the effects of the U.S. Census Bureau's practice of count­ ing prisoners in the communities where they are incarcerated as opposed to the communities that they come from for the purposes of districting.59 Those incarcerated outside their communities in

57 George Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REv. 1895, 1898-99(1999). 58 Id. at 1898. Professor Fletcher goes on to describe the role of incarceration in a democratically governed society: The challenge of recognizing that we implicitly endorse a caste system in criminal law is to reformulate our theories of punishment. The em­ phasis on reintegration into society should come front and center.... [W] e should be encouraging inmates to begin thinking of themselves as useful members of society with all the attendant responsibilities. Id. at 1907. Although he is addressing the franchise specifically, his words ring even truer in the context of jury service-while voting is merely a right, jury duty is an obligation of citizenship. The political incidents of citizenship are jealously guarded from those not qualified under the law to hold them. At a recent City University of New York National Lawyer's Guild student-chapter sponsored Know Your Rights work­ shop on constitutional rights in police and pedestrian encounters at an artist collec­ tive in Brooklyn, a young African American male participant, unprompted, shared the following story with the author: his brother had been arrested and served time for a crime and had subsequently received a New York Juror Questionnaire. Among the questions asked in the questionnaire is, "Have you ever been convicted of a felony?" N.Y. State Unified Court System, Juror Qualification Questionnaire, http:/ /www. nycourtsystem.com/applications/qualify/ (follow "Please click here to continue and submit your Qualification Questionnaire" hyperlink, then enter requested informa­ tion) (last visited Sept. 11, 2010). As this participant understood what happened, his brother had answered this question incorrectly-by checking the box marked "No" when he should have checked "Yes"-and was charged with perjury for his incorrect answer. He was convicted of the perjury charge and was incarcerated for four months. There are many reasons that an individual might answer such a question incorrectly: he might not understand that the crime of which he had been convicted is a "felony" under the law, he might not realize that he was actually convicted if he took a plea to the charges or was sentenced to time served, he might forget a long-ago conviction. Assuming this story is true, the fact that a prosecutor took advantage of such a mistake to charge, prosecute and convict this person suggests that New York's felon jury exclu­ sion law is creating a situation where a class of New Yorkers are permanently vulnera­ ble to involvement in the criminal justice system. 59 See U.S. CENSUS BuREAu, FACTS ABOUT CENSUS 2000 RESIDENCE RULES, http:// www.census.govI population/wwwI censusdata/ resid_rules .html#Inst (last visited Sept. 11, 2010). Professor Pamela S. Karlan explains how this policy silences communities: [T]he interaction of incarceration and disenfranchisement can skew the balance of political power within a state. The Census Bureau counts inmates where they are incarcerated. The population figures the Bu- 2010] CHALLENGING FELON JURY EXCLUSION 325 institutions in upstate New York are disenfranchised and yet simul­ taneously counted as residents in the communities where they are held during incarceration.60 These additional bodies inflate the population of communities that host prisons, adding to their repre­ sentation and tax base through the districting process. At the same time, the home communities of those incarcerated at the time of the Census are reduced by the number of their regular residents who have been forcibly migrated outside the community.61 The ge­ ographic effect of this double disenfranchisement leaves communi­ ties adrift. Members of the founding generation construed jury service to be central to the process of democracy. Thomas Jefferson de­ scribed the jury as the "school by which the people learn the exer­ cise of civic duties as well as rights."62 James Wilson, a Philadelphia jurist and signer of the U.S. Constitution, understood that through jury service voters "come to know, to shape, and thus to admire the law."63 Alexis de Tocqueville, writing after a tour of the United States in 1835, wrote, "the jury, which is the most energetic means

reau provides are used by states to draw legislative districts. Because every state but Maine and Vermont disenfranchises individuals while they are incarcerated, people in prison serve as essentially inert ballast in the redistricting process. Especially given the prevalent practice of building prisons far away from the cities where most inmates lived before they were sent to prison, these practices increase the power of officials who have no reason to represent these only notional "constitu­ ents." At the same time, incarceration reduces the population of the communities from which inmates come, and to which most of them re­ turn, thereby diminishing those communities' entitlement to legislative seats and legislative clout. Pamela S. Karlan, Ballots and Bullets: The Exceptional History of the Right to Vote, 71 U. CIN. L. REv. 1345, 1364-65 (2003). 60 See supra note 17. 61 This practice may soon be ending locally. New York joins Maryland and Dela­ ware as the only states in which those incarcerated are counted in the communities they come from, not the communities to which they are sent, at least for districting purposes at the state level. On August 3, 2010, the New York Legislature approved a measure sponsored by Senator Eric Schneiderman and Assembly Member Hakeem Jeffries that would require that inmates be counted as residents of their home coun­ ties--where nearly all will return-rather than of the areas where they are imprisoned for New York state and local redistricting. Joel Stashenko, State Set to End Policy of 'Prison Gerrymandering,' 244 N.Y. LJ. 1 (col. 3) (Aug. 5, 2010); see S. 6725, 233d Leg. Sess. (N.Y. 2010); A. 9834, 233d Sess. Law (N.Y. 2010); see also Prisoners of the Census, http://www.prisonersofthecensus.org/newyork.html#leg. Federal districting is not af­ fected by this legislation. 62 KERBER, supra note 2, at 129. 63 Id. "Perhaps more than any other signer of the Constitution, Wilson linked the educational function of the jury with the claim of the people to judge for themselves." Id. at 229 n.22. 326 NEW YORK CITY LAW REVIEW [Vol. 13:313

of making the people rule, is also the most efficacious means of teaching it to rule well."64 There is modern empirical evidence suggesting that people who have served on juries believe that they have benefited from that service and that they have more respect for the courts than people who have not served on juries.65 At least one court has given credence to the rehabilitative value of jury participation: in 2006, a Colorado court reasoned that a state statute that allowed those with felony-conviction histories to serve on petit juries was rationally related to the legislative purpose of rehabilitating con­ victed felons and reintegrating them into society once their punish­ ment was complete.66 Experts making recommendations about jury service for those with conviction histories agree. In 1967, a Presidential Task Force on Corrections stated, " [ t] here seems little justification for ... per­ manently disqualifying all convicted felons from serving as jurors," and recommended that, for selection of jurors for all juries, [r] eliance should instead be placed primarily on the powers given both parties to challenge jurors, since they and the judge are in a position to consider the relevance of a particular case. The legislature might prescribe certain convictions as grounds for challenge for cause; the judge could allow other convictions to constitute such grounds according to their relevance to the case. In addition, it might be appropriate for the legislature to provide for disqualification in certain cases at least for some pe­ riod of years. 67 More recently, the American Bar Association ("ABA"), in its recommendations for jury pool limitations for all juries, urged that only those who have been convicted of a felony and are in actual confinement or on probation, parole, or other court supervision be excluded.68 In the ABA's view, the desire for a jury representa­ tive of the population outweighs the effect that the presence of

64 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 268 (Henry Reeve trans., Lawbook Exchange 2003) (1838). 65 Ellen E. Sward, justification and Doctrinal Evolution, 37 CoNN. L. REv. 389, 467 (2004). 66 People v. Ellis, 148 P.3d 205, 210 (Colo. App. 2006), cert. denied, 2006 WL 3393584 (Colo. Nov. 27, 2006). 67 Brian Kalt, The Exclusion of Felons from Jury Service, 53 AM. U. L. REv. 65, 142 (2003-2004) (quoting TASK FoRCE ON CoRR., PREsIDENT's CoMM'N ON LAw ENFORCE­ MENT & AnMIN. OF JUSTICE, TASK FORCE REPORT: CORRECTIONS 90 (1967)). 68 AMERICAN BAR Ass'N, THE ABA PRINCIPLES FOR JURIES AND JuRY TRIALS 8 (2004), http:/ /www.abanet.org/juryprojectstandards/The_ABA_Principles_for_Juries_and_ Jury_Trials.pdf. 2010] CHALLENGING FELON JURY EXCLUSION 327 felons on juries may have on the public's respect for the process or the bias introduced into jury deliberations.69 Successful policy models for felon jury inclusion exist through­ out the United States.70 Despite the inclusion of individuals with felony-conviction histories in the jury pools of nearly half of U.S. jurisdictions,71 there has been no failing of the judicial process nor any sign that unsound jury verdicts result from including individu­ als with conviction histories in the pool of those qualified to serve on a civil or criminal jury. Through the blanket felon jury exclu­ sion statute, New York is contributing to the disempowerment of communities and trampling on individuals' constitutional rights in the service of protecting against an unsubstantiated rhetorical harm.

II. HISTORY OF NEW YoRK's JURY PooL A. Evolution of Felon jury Exclusion in New York Prior to 1940,jury selection in New York was achieved through different systems in each different county of the City and the State. A "key man" in each county was responsible for calling jurors to serve and insuring that those called were of a sufficiently high "cali­ ber" to have the privilege and the power.72 Although no standard

69 Id. 70 As of 2003, no one was excluded from jury pools in Maine, not even those who are incarcerated at the time when they are called to serve. Kalt, supra note 67, at 153. Alaska, Idaho, Indiana, Minnesota, North Carolina, North Dakota, Rhode Island, South Dakota, Washington, and Wisconsin included everyone in the jury pool except people under correctional supervision (parole, probation or incarceration). Id. at 150-57. Those with felony-conviction histories in Illinois and Iowa were included in the jury pool but challengeable for cause. Id. at 142. Arizona included first time of­ fenders in all its jury pools. Id. at 141. Colorado had no felon jury exclusion at all for the petitjury pool. Id. at 151. Oregon included individuals with felony-conviction his­ tories in the civil jury pool. Id. at 156. Connecticut, D.C., Kansas, Massachusetts, and Oregon included felons.but imposed waiting periods. Id. at 151-56. 71 As of 2003, twenty U.S. jurisdictions included those with a history of felony con­ viction in their jury pools. Kalt, supra note 67, at 71. Some states have recently re­ formed their jury qualification statutes to include those with conviction histories in the pool. The Colorado legislature repealed Colorado's felon jury exclusion statute in 1989. Id. at 151 (citing Cow. REv. STAT.§ 78-1-1 (1963)). The Washington legislature wrote statutes restoring the right to serve on a jury automatically upon completion of a sentence for an offense committed after July 1, 1984. WASH. REv. CoDE ANN. §§ 2.36.070(5), 9.94A.637 (West 2009). Oregon adopted constitutional provision by a citizen initiative in 1999 that automatically restores the right to serve on a jury 15 years after a felony conviction or the completion of a sentence of incarceration. OR. CONST. art. I § 45(1). In 1993, the North Dakota legislature made changes that al­ lowed felons to serve on juries after incarceration, limited only by a challenge for cause. See City of Mandan v. Baer, 578 N.W.2d 559, 563 (N.D. 1998). 72 Until recently, many state and all federal courts selected jury venires through 328 NEW YORK CITY LAW REVIEW [Vol. 13:313 set of qualifications or disqualifications had been promulgated or standard procedure required, potential jurors "possessing all other qualifications which are or may be required or prescribed by law" have been protected from discrimination "on account of race, creed or color" by law since 1895: [A]ny person charged with any duty in the selection or sum­ moning of jurors who shall exclude or fail to summon any citi­ zen [on account of race, creed or color] shall, on conviction thereof, be deemed guilty of a misdemeanor and be fined not less than one hundred dollars nor more than five hundred dol­ lars or imprisoned not less than thirty days, nor more than ninety days, or both such fine and imprisonment.73 Juror qualifications for counties in New York City were first standardized in 1940.74 Before standardization, any disqualification was at the discretion of the Commissioner, the "key man" for the county.75 New York then had a practice of impaneling "blue-rib­ bon" juries for cases of high interest.76 From July 1, 1937, to June 30, 1946, these special juries convicted in 79% of the cases while the general juries convicted in 57%.77 Blue-ribbon juries were the key-man system. Under this system, citizens of good standing (the 'key' persons after whom the system is named) recommend to the court people in the community who will make responsible jurors. Notwithstanding that the highly subjective nature of the key persons' decisions make this system inherently susceptible to discrimination, the Supreme Court has held that key-man systems are not unconstitutional per se. Carter v.Jury Comm'n, 396 U.S. 320, 331-37 (1970). But key-man systems violate the Equal Protection Clause if they meet certain conditions, including impermissible mo­ tivation. Castaneda v. Partida, 430 U.S. 482, 499-501 (1977). No state in recent years has successfully defended a key-man system having a nontrivial disparate racial impact before the U.S. Supreme Court. 73 N.Y. Crv. RIGHTS LAw § 13 (Banks Law Publishing Co. 1909). 74 See N.Y. juD. LAw § 596 (McKinney 1940). 75 See supra notes 72-73 and accompanying text. 76 New York's special jury statutes then allowed the impaneling of blue-ribbon ju­ ries for special cases. These special juries have been termed "blue ribbon" to connote a jury composed of individuals of considerable education and business experience. Frederick F. Lewis, Constitutional Law-Use of "Blue Ribbon" Juries in State Courts, 26 TEX; L. REv. 533, 534 (1948). Blue-ribbon juries were used for particularly important or intricate cases or where "the issue to be tried has been so widely commented upon that an ordinary jury cannot without delay and difficulty be obtained" or that for any other reason "the due, efficient and impartial administration ofjustice in the particu­ lar case would be advanced by the trial of such an issue by a special jury." Fay v. New York, 332 U.S. 261, 268-69 (1947). Blue-ribbon jurors had to be selected from those accepted for the general panel by the county clerk, subpoenaed for a personal ap­ pearance and had to testify under oath as to his or her qualification and fitness. Id. at 267. The then-extant special juror statute prescribed standards for their selection by the clerk after such a subpoena. These standards allowed the New York City jury clerk to narrow the jury panel from approximately 60,000 qualified jurors to approximately 3,000 qualified blue-ribbon jurors. Lewis, supra at 534. 77 Moore v. New York, 333 U.S. 565, 566-67 (1948). 2010] CHALLENGING FELON JURY EXCLUSION 329

widely criticized and repeatedly challenged in the courts.78 In re­ sponse, New York started to reform the jury system with the aim of eliminating the need for blue-ribbon juries: a bill was introduced which made changes to the general juror procedure with the ex­ plicit intention of making all juries more like the blue-ribbon juries in "calib [er]. "79 The explicit objective of reform was to provide the courts with 'juries of high character and caliber."80 The new procedure included personal interviews with the Jury Commissioner. Those who he deemed to be of sufficiently high caliber would be allowed to serve. Individuals who had been "con­ victed of a felony or a misdemeanor involving moral turpitude" were newly disqualified by law from jury service.81 The Citizen's Crime Commission of the State of New York approved the bill while drawing attention to the "difficulties and discrimination" that the differential disqualification would lead to: "What difference does it make whether he has stolen $99 worth of goods or $101. In the first case he would be guilty of a misdemeanor (not involving moral turpitude), in the second case a felony."82 The first would not be disqualified, but the second would. To resolve this unequal

treatment7 the Commission suggested disqualifying all misdemean­ ants as well,83 but the bill was passed as written.84 The ambiguous

78 See, e.g., id. (holding that blue-ribbon juries do not violate the U.S. Constitu­ tion); Fay, 332 U.S. at 261 (upholding the constitutionality of blue-ribbon juries). 79 Letter from Francis]. Sinnott, County Clerk, County of Kings Clerk's Office, to the Honorable Nathan R. Sobel, Counsel to the Governor, Executive Chamber, (Mar. 16, 1940) (microformed in Bill Jacket, L. 1940, ch. 202, at 22) (on file with the New York Public Library: Science, Industry and Business Library); Letter from Leonard S. Saxe, Executive Secretary, to the Honorable Nathan R. Sobel, Counsel to the Gover­ nor, Executive Chamber (Mar. 14, 1940) (microformed in Bill Jacket, L. 1940, ch. 202, at 19-20) (on file with the New York Public Library: Science, Industry and Busi­ ness Library); NEwYoRK CouNIY LAWYER'S AssocIATION COMMITTEE oN STATE LEGIS­ IATION, REPORT No. 172 (1940) (microformed in Bill Jacket, L. 1940, ch. 202, at 14 -15) (on file with the New York Public Library: Science, Industry and Business Library). so N.Y.Juo. LAw § 596 (1940), amended by 1940 N.Y. Laws ch. 202; see also COMMIT­ TEE ON CRIMINAL COURTS LAw AND PROCEDURE OF THE AssoCIATJON OF THE BAR OF THE CITY OF NEW YoRK, REPORT No. 65 (1940) (microformed in Bill Jacket, L. 1940, ch. 202, at 7, 10-11) (on file with the New York Public Library: Science, Industry and Business Library). 81 N.Y.Jun. LAw § 596 (1940), amended by 1940 N.Y. Laws ch. 202; AssocIATION OF THE BAR OF THE CITY OF NEwYoRK, COMMITTEE ON STATE LEGISIATION, REPORT No. 47 (1940) (microformed in Billjacket, L. 1940, ch. 202, at 4) (on file with the New York Public Library: Science, Industry and Business Library). 82 Letter from the Citizens' Crime Commission to the Honorable Herbert Leh­ man, Governor (Mar. 16, 1940) (microformed in Bill Jacket, L. 1940, ch. 202, at 2-3) (on file with the New York Public Library: Science, Industry and Business Library). ss Id. 84 SeeN.Y.Juo. LAw § 596 (1940), amended by 1940 N.Y. Laws ch. 202. 330 NEW YORK CITY LAWREVIEW [Vol. 13:313

"felony or misdemeanor involving moral turpitude" disqualifica­ tion later also became law for juries in NYC. 85 In 1955, a statute was added governing juror qualifications outside NYC, which also in­ cluded a disqualification for those convicted of a "felony or a mis­ demeanor involving moral turpitude."86 The 1940 statute was amended twice before it was replaced completely: the first amendment removed a property owner re­ quirement87 and the second lowered the age requirement to 18.88 Both amendments made more individuals eligible for jury service. In 1977, when New York's entire jury selection system was again restructured, it was repealed completely. Restructuring fol­ lowed the Federal Jury Selection and Service Act of 1968 ('jSSA") objective: "to promote greater citizen participation in the civil and criminal jury system."89 Statistics then showed that "women, young people and minorities [were] under-represented in grandjuries."90 The New York statute and theJSSA were both designed to meet the constitutional requirement that juries be selected from a fair cross section of the community in the district or division wherein the court convenes.91 The focus shifted from the "caliber" of juries to the "inclusiveness" of the jury pool. Interviews for all potential ju­ rors were eliminated and replaced with interviews only for those who wish to be excused fromjury service.92 The New York law pres­ ently contains the following language: It is the policy of this state that all litigants in the courts of this state entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the county or other governmental subdivision wherein the court convenes; and that all eligible citizens shall have the opportunity to serve on grand and petit juries in the courts of this state, and shall have an obligation to serve when

85 Id. 86 N.Y.Jun. LAw § 596 (1940), amended by 1955 N.Y. Laws ch. 797. 87 N.Y.Jun. LAw § 596 (1940), amended by 1967 N.Y. Laws ch. 49. 88 N.Y.Jun. LAw § 596 (1940), amended by 1974 N.Y. Laws ch. 890. 89 Memorandum of the Office of Court Administration (microformed in Bill Jacket, L. 1977, ch. 316, at 148) (on file with the New York Public Library: Science, Industry and Business Library). 90 Letter from Milton Beller, Legislative Director, Legal Aid Society, to the Honor­ able Judah Gribetz, Counsel to the Governor, Executive Chamber (June 10, 1977) (microformed in BillJacket, L. 1977, ch. 316) (on file with the New York Public Li­ brary: Science, Industry and Business Library). 91 Id.; N.Y. Jun. LAw § 500 (McKinney 2003); 28 U.S.C. § 1861 (2006). 92 N.Y. Jun. LAw § 512, 1977 N.Y. Laws 1, 4 ch. 316 (McKinney 2009) (repealed 1996). 2010] CHALLENGING FELON JURY EXCLUSION 331

summoned for that purpose, unless excused.93 Individuals with felony-conviction histories were disqualified under the 1977 statute but misdemeanants were no longer disqual­ ified.94 This reduced the number of criminal convictions that would result in disqualification of potential jurors, but did not simi­ larly reduce the number of persons excluded.95 The conditions under which the New York legislature opted to include felon jury exclusion in a jury selection system designed to be inclusive are starkly different from conditions today. According to Professor Ug­ gen's projections, in 1978, the felon class included approximately 3% of the national population,96 5% of adult men,97 8% of African Americans, and 13% of African American men.98 But the explosion of the "felon class" between 1978 and the present has amplified the effects of the exclusion far beyond its 1977 scope. By 2004, approxi­ mately 7% of Americans were in the "felon class,"99 including 13% of adult men, 22% of African American adults and 33% of African American men. Under New York's felon jury exclusion statute, they are all disqualified from the jury pool.100 The scope of disqualifica­ tion created by felon jury exclusion, which may have been reasona­ ble under 1977 conditions, is no longer reasonable and can hardly be characterized as promoting "citizen participation"101 in the jury system.

B. Expanding New York's Jury Pool

In 1995, only 12% of the people who were summoned to jury duty in New York City appeared in court.102JudgeJudith Kaye, who was then Chief Judge of the New York Court of Appeals, recog­ nized that this low turnout rate was having an effect on the repre­ sentativeness and inclusiveness of New York juries, as well as interfering with courts' abilities to actually do the work of adminis-

93 N.Y. Juo. LAw § 500 (McKinney 2003). 94 N.Y. Juo. LAw § 510 (McKinney 2003). 95 See Uggen et al., supra note 10 and accompanying text. 96 See id. 97 See id. 98 See id. 99 See id. 100 N.Y. Juo. LAw § 510 (McKinney 2003). 101 See Memorandum of the Office of Court Administration, supra note 89 and ac­ companying text. 102 Robert C. Walters et al., Jury of Our Peers: An Unfulfilled Constitutional Promise, 58 SMU L. R.Ev. 319, 351 (2005). 332 NEW YORK CI1Y LAW REVIEW [Vol. 13:313 teringjustice.103 In response,Judge Kaye and the New York legisla­ ture repealed all exemptions from jury service; increased the daily rate that jurors were paid; required companies with over 20 em­ ployees to pay while their employees fulfilled their jury duty; added taxpayer, welfare-recipient, and unemployment lists to the lists from which potential jurors were identified; and hired a national change-of-address service to track down New Yorkers whose jury questionnaires had been returned by the U.S. Post Office.104 Five years after these reforms began, the participation rate of qualified summonedjurors was up from 12% to 37%.105 Despite the recog­ nized need to expand the jury pool in New York, felon jury inclu­ sion was conspicuously absent from Justice Kaye's admirable reforms.106 To make up for the shortage of jurors and to create a more inclusive and representative jury pool, and to make more jurors available to fill the crucial democratic role of hearing and deciding the cases of their fellow New Yorkers, New York courts have re­ formed the jury recruitment process at great administrative and fi­ nancial cost.107 Yet, New York continues to ban a large swath of citizens from inclusion in the pool through felon jury exclusion.108 In light of Justice Kaye's goals and her successful efforts to reform the system, felon jury exclusion is a relic that should be the next obstacle removed from the path to a process that reliably produces impartial juries representing a cross section of New York's communities.

Ill. CONSTITUTIONAL CHALLENGES The exclusion of individuals with felony-conviction histories from New York's jury pool can be challenged not only on ethical and practical grounds, but also as a violation of constitutional prin­ ciples.109 Even where arguments about the constitutional implica-

103 See Judith S. Kaye, Albany Law Review Symposium: Refinement or Reinvention, The State of Reform In New York: The Courts, 69 ALB. L. REv. 831, 841, 843 (2006). 104 Walters et al, supra note 102, at 351-52. 105 Id. 106 See id. at 351-54. 101 Id. at 351. 108 N.Y. Juo. LAw § 510(3) (McKinney 2003). 109 Felon jury exclusion may also violate the International Covenant on Civil and Political Rights ("ICCPR"), which states, "Every citizen shall have the right and the opportunity ... without unreasonable restrictions ... [t]o have access, on general terms of equality, to public service in his country." International Covenant on Civil and Political Rights, art 25, G.A Res. 2200A (XXI), i 21, U.N. GAOR, Supp. No. 16 at 52, U.N. Doc. A/6316 (Dec. 16, 1966); see Kalt, supra note 67, at 142; see also Internal 2010] CHALLENGING FELON JURY EXCLUSION 333 tions of felon jury exclusion might not lead courts to declare it unconstitutional, recognition of such implications should have suf­ ficient rhetorical and persuasive power to cause policymakers to reject it as undesirable or politically impractical. Given the dispa­ rate racial effects of the statute, its extreme impact on minority communities' access to the judicial process, as well as the goals of inclusiveness and representativeness enshrined in the jury selection statutes and the policies of the courts themselves, felon jury exclu­ sion seems ripe for legislative reform. This Part will address the most severe constitutional infirmities of the statute-its violation of the fair-cross-section requirement, uo its infringement on litigants' and jurors' Equal Protection rights under the Fourteenth Amendment, 111 and the introduction of bias into the judicial process that threatens the Due Process rights112 of defendants and civil litigants. Felon jury exclusion is likely a violation of the constitutional fair-cross-section requirement. A jury selected from a pool that rep­ resents a "fair cross section on the venire" is a gloss on the "impar­ tial jury" due a criminal defendant under the Sixth Amendment.113 The fair-cross-section requirement applies to civil juries through the Supreme Court's application of Sixth Amendment principles in the civil context, its supervisory authority, and the Due Process Clause of the Fourteenth Amendment.114 A pool that represents a "fair cross section of the community" is explicitly required by New York law for alljuries.115 Felon jury exclusion, which interferes with a fair and reasonable representation of community members with conviction histories and minorities in the jury pool, is an impermis­ sible violation of this requirement.116 The Equal Protection Clause of the Fourteenth Amendment protects both litigants and prospective jurors from government ac­ tion based on irrational or protected classifications. Felon jury ex­ clusion classifies felons versus misdemeanants; a court is likely to find this classification to be irrational.117 A court may also give

Exile, supra note 17, at 160 (discussing the applicability of Article 25 of the ICCPR to felon disenfranchisement laws). The United States has ratified the ICCPR. llO See infra Part III.A. ll l See infra Part III.B. ll2 See infra Part III.C. ll3 Holland v. Illinois, 493 U.S. 474, 480 (1990). ll4 Id. ll5 N.Y.Juo. LAw § 500 (McKinney 2003); Oglesby v. McKinney, 788 N.Y.S.2d 559, 564 (Sup. Ct. 2004). ll6 See infra Part III.A.1-3. ll 7 See infra notes 276-317 and accompanying text. 334 NEW YORK CITY LAW REVIEW [Vol. 13:313 heightened scrutiny to classifications based on felony-conviction history if it concludes that individuals with such histories are a semi-suspect class or that such classifications are the product of ani­ mus.118 The racial impact of felon jury exclusion on the composi­ tion of juries may elicit strict scrutiny from a court; if it does, the exclusion is sure to fail. 119 Finally, the Due Process Clause of the Fourteenth Amendment protects the judicial process from the appearance of bias.12° Felon jury exclusion's racial impact magnifies the appearance of a skewed judicial system and likely violates this Due Process requirement.121 Standing will not be hard to establish for such a challenge. 122

118 See infra notes 303-17 and accompanying text. 119 See infra notes 382-420 and accompanying text. 120 See infra notes 421-30 and accompanying text. 121 Felon jury exclusion may also violate the potential juror's right to privacy recog­ nized as penumbra! to the Ninth Amendment: a juror called for service who is not eliminated at the questionnaire stage will be subject to undue public attention when his or her past felony convictions become known during the voir dire process. See Amanda Kutz, A jury of One's Peers: Virginia's Restoration of Rights Process and Its Dispro­ portionate Effect on the African American Community, 46 WM. & MARY L. REv. 2109, 2147-49 (2005). The Due Process Clause is also the constitutional site of the "irrebut­ table presumption doctrine, n a doctrine historically used to protect rights deemed "important" from curtailment based on presumptions rather than individual review. See Binnall, supra note 54, at 4, 20-30. Binnall argues that the doctrine, last applied by the Supreme Court in Cleveland Board ofEd. v. LaFleur, 414 U.S. 632 (1974), should be revived. Under this doctrine, heightened scrutiny will be applied to jury exclusion, a right whose "infringement serves to disempower." Binnall, supra note 54, at 21. 122 The criteria for third-party standing to litigate a claim of unconstitutional dis­ crimination are (1) that the litigant must have suffered an actual injury that gives him or her a sufficiently concrete interest in the outcome of the issue in dispute; (2) that the litigant must have a close relation to the third party such that there will be no loss in terms of effective advocacy by letting the litigant raise the excluded juror's claims; and (3) that there must exist some hindrance to the third party's ability to protect his or her own rights. Powers v. Ohio, 499 U.S. 400, 411 (1991) In Powers, the Court held that a defendant had standing to litigate the rights of excluded jurors because (1) the litigant suffered an actual injury when discrimination in the selection of jurors cast doubt on the integrity of the judicial process and placed the fairness of a criminal proceeding in doubt; (2) the relationship between a litigant and jurors is sufficiently close in light of other relationships where third-party standing has been granted and its closeness is reinforced by common interests in eliminating discrimination from the courtroom; and (3) suits by excluded jurors are rare and the barriers to a suit by an excluded juror are daunting. Id. at 413-15. In Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 628-31 (1991), the Court applied the same analysis in deciding that civil litigants had standing to raise rights of excluded jurors, and in Georgia v. McCollum, 505 U.S. 42, 56 (1992), to grant standing to the prosecutor in a criminal case. Poten­ tial jurors themselves have standing to litigate their own right to be included in the jury pool. See Batson v. Kentucky, 476 U.S. 79, 87 (1986); McCollum, 505 U.S. at 48; Bokulich v.Jury Comm'n, 298 F. Supp. 181, 190 (N.D. Ala. 1968), affd, Carter v.Jury Comm'n, 396 U.S. 320, 329 (1970). In Johnson v. Durante, 387 F. Supp. 149 (E.D.N.Y. 1975), Queens County residents excluded from the grand jury rolls at discretion of 2010] CHAllENGING FELON JURY EXCLUSION 335

Courts liberally grant standing to civil litigants; criminal defend­ ants, excluded jurors, and parties to a litigation seeking third-party standing to challenge a violation of excluded jurors' equal protec­ tion rights.123

A. ''Drawn From a Fair Cross Section of the Community" Americans expect to find juries "of their peers" in all court­ rooms-state or federal, civil or criminal. This expectation arises out of the "impartial jury" guaranteed by the Bill of Rights for civil and criminaljuries.124 The Sixth Amendment of the United States Constitution guarantees all criminal defendants "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed."125 A jury "drawn from a fair cross section of the community" is the Supreme Court's gloss on the words "impartial jury."126 The cross-section require­ ment originated in a 1946 federal civil case Thiel v. Southern Pacific Co. 127 In Thiel, the Court held the exclusion of day laborers from the jury pool by the jury commissioner to be a violation of the fair­ cross-section requirement; the commissioner had not been calling commissioners on the basis of gender, occupation, locality, and race also brought a successful challenge under the Equal Protection Clause. 123 A civil litigant or criminal defendant has standing to challenge a jury that is constructed in a way that systematically excludes members of the group he or she belongs to under Equal Protection, Batson, 476 U.S. at 96 (racial group), or ajury selection process that is not designed to represent a fair-cross-section of the commu­ nity, whether or not the systematically excluded groups are groups to which he him­ self belongs. See, e.g., Holland v. Illinois, 493 U.S. 4 7 4, 4 77 ( 1990) (finding that a white defendant has standing to challenge use of peremptory challenges that excluded Afri­ can American jurors as fair-cross-section violation); Taylor v. Louisiana, 419 U.S. 522, 526 (1975) (finding that a male defendant has standing to challenge statute that re­ sults in exclusion of large portion of women from the jury pool as fair cross-section violation). Courts freely award third-party standing to civil litigants, criminal defend­ ants, and prosecutors to challenge jury exclusions that violate Equal Protection for the excludedjurors. See, e.g., Campbell v. Louisiana, 523 U.S. 392, 400 (1998) (hold­ ing a white defendant can raise the third-party Equal Protection claims of African American would-be grand jurors); Powers, 499 U.S. at 415 (holding that a white defen­ dant has third-party standing to raise the Equal Protection claims of African American petitjurors excluded through peremptory challenges by the prosecution). 124 U.S. CONST. amend. VI. 125 Id. In Duncan v. Louisiana, 391 U.S. 145 (1968), the Court applied the Sixth Amendment to the states through the Due Process Clause of the Fourteenth Amendment. 126 Holland v. Illinois, 493 U.S. 474, 480 (1990); Taylor v. Louisiana, 419 U.S. 522, 528 (1975). 127 Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946) ("[E]very jury [need not] contain representatives of all the economic, social, religious, racial, political and geographical groups of the community ... [b]ut ... prospective jurors [must] be selected by court officials without systematic and intentional exclusion of any of these groups."). 336 NEW YORK CITY LAW REVIEW [Vol. 13:313 such laborers based on the belief that they would be excused for financial hardship by the judge when they appeared to seive.128 The Court did not provide a single authority for this holding. The same year, the Court faced a case challenging the exclusion of wo­ men from criminal juries, Ballard v. United States. 129 In Ballard, the Court quoted extensively from Thiel, and explained that the impo­ sition of the cross-section requirement was an exercise of its super­ visory power over the administration of justice in the federal courts. 1so After Thiel and Ballard, the cross-section requirement devel­ oped simultaneously in the civil and criminal contexts. In Taylor v. Louisiana, a criminal case, the Court read it directly into the Sixth Amendment's requirements for a criminal trial. 131 The Court ex­ plained its understanding of the requirement: We accept the fair-cross-section requirement as fundamen­ tal to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The pur­ pose of a jury is to guard against the exercise of arbitrary power-to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken pros­ ecutor and in preference to the professional or perhaps over­ conditioned or bl.ased response of a judge. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are ex­ cluded from the pool. Community participation in the adminis­ tration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. ·Restricting jury ser­ vice to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.132 There are several popular misconceptions of the fair-cross-sec­ tion requirement. Some think that it only applies to criminal trials. Others believe that the Court only has the authority to impose the requirement on the federal courts. Neither is true. Fair-cross-sec-

128 Id. at 222. 129 See Ballard v. United States, 329 U.S. 187 (1946). ISO Id. at 193. Admittedly, the Supreme Court does not have supervisory power over New York State courts. But no authority suggests that a different constitutional stan­ dard for a properly representative jury pool under the impartial jury requirement applies outside the federal judiciary. 131 Taylor, 419 U.S. at 530 (citing Duncan v. Louisiana, 391 U.S. 145 (1968); Thie~ 328 U.S. at 227). is2 Id. 2010] CHALLENGING FELON JURY EXCLUSION 337

tion jurisprudence principles developed under the Sixth Amend­ ment and the supervisory authority of the Supreme Court are routinely applied to constitutional challenges of jury construction in trials not covered by the Sixth Amendment guarantee and outside the Court's authority.133 The Court has contributed to the confusion. The Taylor Court distinguished an earlier criminal case, Hoyt, another challenge to the exclusion of women from jury pools unless they affirmatively volunteered, because the earlier case "did not involve a defendant's Sixth Amendment right to a jury drawn from a fair cross section of the community and the prospect of depriving him of that right if women as a class are systematically excluded."134 But Hoyt was an Equal Protection challenge; the de­ fendant did not raise a Sixth Amendment challenge at all. Never­ theless, in 1991, the Court stated that Taylor "in effect" overruled Hoyt, 135 eliminating the suggestion that the fair-cross-section re­ quirement uniquely applies to the Sixth Amendmentjury context. Although the issue of whether a jury drawn from a fair cross section is required in a civil trial has not been directly before the United States Supreme Court or any New York court, other courts that have recognized a civil litigant's constitutional right to a jury drawn from a fair cross section of the community analogous to the right of a criminal defendant in state court have gone unchal­ lenged. For example, in Timmel v. Phillips, a malpractice suit, the Fifth Circuit recognized such a right when faced with the identical issue. 136 That court also cited Thiel and Duren and explicitly stated: [A]lthough the standard for determining whether there has been a violation of the proper jury selection requirement was developed in the context of criminal cases, we assume, without deciding, that the fair cross-section requirement is similarly re-

133 See, e.g., People v. Guzman, 454 N.Y.S.2d 852, 862 (App. Div. 1982) (''We are of the view that these principles are equally applicable to the selection of grand jurors [in state court], since such individuals are drawn from the same pool as petit jurors, and the same policy principles govern both."); see also Peters v. Kiff, 407 U.S. 493, 502 (1972) (plurality) (finding that a violation of the fair-cross-section requirement in criminal grand and petit jury construction exists despite supervisory power of Su­ preme Court not applying to state court, Sixth Amendment not applying to grand juries and not yet applying to state petitjuries); Roberson v. Hayti Police Dep't, 241 F.3d 992, 996-97 (8th Cir. 2001) (suggesting that a civil litigant's cross-section claim in federal civil case could be viable if the evidence offered showed systematic exclu­ sion of African American people from the jury venire). 134 Taylor, 419 U.S. at 534 (citing Hoyt v. Florida, 368 U.S. 57 (1961)). 135 Payne v. Tennessee, 501 U.S. 808, 828 n.l (1991) (citing Taylor as "overruling in effect" Hoyt). 136 Timmel v. Phillips,799 F.2d 1083, 1085 (5th Cir. 1986). 338 NEW YORK CITY LAW REVIEW [Vol. 13:313

quired by the Constitution in civil cases. 137 Supreme Court, federal and New York cases provide strong lan­ guage in support of this conclusion. "The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross section of the community."138 If it is unfair for a criminal de­ fendant to be tried by a jury that has not been chosen from a fair cross section of the community, it is equally unfair for the fair­ cross-section requirement to be unfulfilled in a civil trial.139 "A civil proceeding often implicates significant rights and interests. Civil juries, no less than their criminal counterparts, must follow the law and act as impartial factfinders."140 New York law explicitly requires all juries to be drawn at ran­ dom from a fair cross section of the community in the county or other governmental subdivision wherein the court convenes: all lit-

137 Id. at 1086 n.5. 138 Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946) (emphasis added). 139 Mitchell v. Morgan, 844 F. Supp. 398, 404 (M.D. Tenn. 1994) affd sub. nom. Thandiwe v. Morgan, 41 F.3d 1508 (6th Cir. 1994). 140 Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 630 (1991) (citing Thiel, 328 U.S. at 220); see also Jones v. New York City Transit Auth., 483 N.Y.S.2d 623, 625 n.2 (Civ. Ct. 1984) (challenging the denial of jury trial in a civil trial under Jones Act, which guarantees trial by jury for injured seamen; "Although the seventh amendment right to jury trials has not been incorporated into the fourteenth amendment, the principles developed under the sixth amendment are logically applicable to civil tri­ als .... [l]f a State chooses to provide jury trials it must do so on terms that comport with notions of due process and equal protection."). The Constitutional Fair Cross Section requirement for the construction of civil juries may also be located in the Due Process Clause of the Fourteenth Amendment. See, e.g., People v.· Guzman, 457 N.E.2d 1143, 1146-47 (N.Y. 1983); Peters v. Kiff, 407 U.S. 493, 502 (1972); Mitchell, 844 F. Supp. at 403 (finding that a civil litigant seeking damages under § 1983 for injuries received while incarcerated has a due process right to a jury chosen from a fair cross­ section of the community). In Peters, different opinions issued by Supreme Court Jus­ tices found different grounds for holding that there had been a constitutional viola­ tion in construction of the jury pool. The opinion announcing the judgment of the Court located the violation in the Due Process Clause: "if a State chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that jury." Peters, 407 U.S. at 501. Justice Marshall's opinion and its due process concerns have subsequently been approvingly discussed by ChiefJustice Burger, when announcing the opinion of the Court in Hobby v. United States, 468 U.S. 339, 343 (1.984) (discussing grand jury foreman selection procedures at issue), who quoted from it and described its reasoning that unconstitutionally dis­ criminatory jury selection procedures violate due process by creating the appearance of institutional bias and casting "doubt on the integrity of the whole judicial process." Id.; see Taylor v. Louisiana, 419 U.S. 522, 526 (1975). Justice White filed an opinion concurring in the judgment, in which Justices Brennan and Powell joined, finding a violation of non-discriminatory jury construction protected by a federal statute "which reflects the central concern of the Fourteenth Amendment with racial discrimina­ tion." Peters, 407 U.S. at 507 (White,]., concurring in the judgment). 2010] CHAUENGING FELON JURY EXCLUSION 339

igants in New York courts have a statutory right to such a jury.141 Our notions of what a proper jury is have developed in har­ mony with our basic concepts of democracy and representative gov­ ernment. 142 The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system. 143 The Su­ preme Court has characterized our society's understanding of a jury as "a body truly representative of the community."144 While striking down a jury selection system that diminished representa­ tiveness by excluding a cognizable group from jury service as un­ constitutional and "contraven [ing] ... the very idea of a jury," the Supreme Court described the jury as, 'a body truly representative of the community,' composed of 'the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, asso­ ciates, persons having the same legal status in society as that which he holds.'145 Jury service preserves the democratic element of the law, as it guards the rights of the parties and ensures continued acceptance of the laws by all of the people.146 The jury system postulates a conscious duty of participation in the machinery of justice.... One of its greatest benefits is in

141 N.Y.Juo. LAw § 500 (McKinney 2003); Oglesby v. McKinney, 788 N.Y.S.2d 559, 564 (Sup. Ct. 2004); People v. Guzman, 454 N.Y.S.2d 852, 860-62 (App. Div. 1982), affd, 457 N.E.2d 1143 (N.Y. 1983). The New York Constitution also guarantees the right to a trial by jury "in all cases in which it has heretofore been guaranteed for­ ever." N.Y. CONST. art. I § 2. The word "heretofore" had to be taken as meaning "before 1846." Cf. Moot v. Moot, 108 N.E. 424, 425 (N.Y. 1915) ("The measure of the right of trial by jury preserved by the state Constitution (article l, § 2) in actions for divorce is the right to a jury trial in such cases as it existed at the time of the adoption of the Constitution of 1846."); Blum v. Fresh Grown Preserve Corp., 54 N.E.2d 809, 810 (N.Y. 1944) (quoting Moot, 108 N.E. at 425). 142 See Taylor v. Louisiana, 419 U.S. 522, 526-27 (1975). Cf. Berghuis v. Smith,_ U.S._, 130 S. Ct. 1382, 1396 (2010). The democratic process may be approaching a crossroads. In a recent concurrence, Justice Clarence Thomas pointed out that "his­ torically,juries did not include a sampling of persons from all levels of society or even from both sexes," as a reason why the fair-cross-section requirement should not be read into the Constitution. He did not, however, point out other historically accept­ able practices-a legalized slave trade, no franchise for women, strict limits on prop­ erty ownership-that might provide a reason why the requirement is needed. Thomas concluded his opinion by saying that "in an appropriate case, [he] would be willing to reconsider our precedents articulating the 'fair cross section' requirement." Id. 143 Powers v. Ohio, 499 U.S. 400, 406 (1991). 144 Taylor, 419 U.S. at 526-27. 145 Carter v. Jury Comm'n, 396 U.S. 320, 330 (1970) (quoting Smith v. Texas, 311 U.S. 128, 130 (1940); Strauder v. West Virginia, 100 U.S. 303, 304 (1879)). 146 Powers, 499 U.S. at 407. 340 NEW YORK CITY LAW REVIEW [Vol. 13:313

the security it gives the people that they, as jurors actual or possi­ ble, being part of the judicial system of the country, can prevent its arbitrary use or abuse.147 It "affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a re­ spect for law."148 With the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportu­ nity to participate in the democratic process.149 Once a state chooses to provide grand and petit juries, whether or not constitutionally required to do so, 150 it must hew to federal constitutional criteria in ensuring that the jury selection is free of bias.151 It is a crucial component of a jury of any size to forbid arbitrary exclusions of a particular class from the jury rolls.152 Successful challenges to discrimination effectuated by a well-meaning statute that results in reduced representation of a group in the jury pool are the hallmark of cross-section doctrine. In Taylor v. Louisiana, the Court declared unconstitutional under the Sixth and Fourteenth Amendments a jury selection scheme that only included women in the jury pool if they affirmatively vol­ unteered.153 The policy was created out of respect for women's roles as mothers and homemakers, but had the effect of creating a gross disproportionality between those from "an identifiable class of citizens" eligible for jury service and those represented in the venire.154 In a county that was 53% female, only 11 % of those in the 'jury wheel" were women and no women were in the 175-per­ son venire from which the jury in the case was selected.155 Four years later, the Court clarified the standard for evaluat-

147 Id. at 406 (quoting Balzac v. Porto Rico, 258 U.S. 298, 310 (1922)). 148 Duncan v. Louisiana, 391 U.S. 145, 187 (1968) (Harlan, J., dissenting). 149 Powers, 499 U.S. at 407. 150 The Seventh Amendment of the United States Constitution only guarantees the right to jury trials in civil cases in federal court under certain circumstances: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re­ examined in any Court of the United States, than according to the rules of the com­ mon law." Thus, some civil cases are not required to be heard by a jury under the U.S. Constitution. The Seventh Amendment has not been applied to the states. U.S. CoNST. amend. V1I. 151 Carter v. Jury Comm'n, 396 U.S. 320, 330 (1970). 152 See, e.g., Williams v. Florida, 399 U.S. 78, 102 (1970) ("As long as arbitrary exclu­ sions of a particular class from the jury rolls are forbidden the concern that the cross­ section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one." (internal citation omitted)). 153 Taylor v. Louisiana, 419 U.S. 522, 524-25 (1975). 154 Id. at 524. 155 Id. 2010] CHALLENGING FELON JURY EXCLUSION 341

ing whether there is a violation of the fair-cross-section require­ ment in Duren v. Missouri, a criminal case in which the defendant successfully challenged a statutory scheme that provided for an au­ tomatic exemption of women from the jury pool upon their re­ quest, again out of respect.156 Fifty-four percent of the adults in the county where the Duren trial took place were women but during eight of the ten months immediately prior to the trial, only 14.5% of the persons on the weekly venires were women.157 The all-male jury in Duren was selected from a panel of 53, of whom five were women. 158 The Court announced the following rule: In order to establish a prima fade violation of the fair-cross­ section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the com­ munity; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.... [O]nce the defendant has made a prima fade showing of an infringement of his constitu­ tional right to a jury drawn from a fair cross section of the com­ munity, [the government] bears the burden of justifying this infringement by showing attainment of a fair cross section to be incompatible with a significant [governmental] interest.159 No matter what the source of the fair-cross-section requirement in a particular case, courts use the Duren standard to judge compliance. 160

156 Duren v. Missouri, 439 U.S. 357, 360 (1979). 157 Id. at 362-63. 158 Id. at 363. 159 Id. at 364, 369. There is no need to prove discriminatory intent for a successful cross-section challenge. Duren, 439 U.S. at 368 n.26; United States v.Jackman, 46 F.3d 1240, 1246 (2d Cir. 1995); see also Laurie Magid, Challenges to jury Composition: Purging the Sixth Amendment Analysis of Equal Protection Concepts, 24 SAN Drnco L. R.Ev. 1081, 1090-91 (1987) (stating that it is easier to show prima fade violation under Sixth Amendment fair cross-section analysis than under Fourteenth Amendment equal pro­ tection analysis, because it is not necessary to show discriminatory intent). The New York Court of Appeals in Guzman also explained that, in its view, standards under fair cross-section requirements and the Equal Protection Clause differ somewhat in that fair cross-section "distinctiveness" encompasses the broader principle that juries should be drawn from a source fairly representative of the community, whereas equal protection focuses upon classes which have historically been discriminatorily ex­ cluded or substantially underrepresented. People v. Guzman, 454 N.Y.S.2d 852, 861 (App. Div. 1982), affd, 457 N.E.2d 1143 (N.Y. 1983). 160 See, e.g.,].E.B. v. Alabama, 511U.S.127 (1994) (requiring Fair Cross Section by "constitutional concept ofjury trial"; Duren standard discussed; decided on Equal Pro­ tection grounds); Mitchell v. Morgan, 844 F. Supp. 398, 403 (M.D. Tenn. 1994) (find­ ing Fair Cross Section required by Due Process Clause of Fourteenth Amendment); 342 NEW YORK CITY LAW REVIEW [Vol. 13:313

For a challenge to be successful, the excluded group must be "distinctive." The distinctive group requirement has its roots in Her­ nandez v. Texas, a case challenging the exclusion of Mexican-Ameri­ cans from grand and petit juries.161 In Hernandez, the Supreme Court held that it is a violation of the Equal Protection Clause to try a defendant before a jury from which members of his or her "distinct class" are excluded.162 The Court defined and limited a "distinct class" to those groups that "required the aid of the courts" in securing protection from local prejudice or discrimination.163 But in Duren, the Court declared that women, when they were ex­ cluded from the jury pool through an automatic exemption, were a distinct class without any discussion of whether they historically re­ quired the aid of the courts.164 After Duren, distinctive or cogniza­ ble groups are not limited to those that have historically been the target of prejudice or discrimination. 165 In 1986, the Court explained that it deliberately has not pro­ vided a precise definition of "distinct group" for fair-cross-section pl:lrposes.166 Instead, the Court pointed to the purposes of the cross-section requirement, as outlined in Taylor, for guidance as to who constitutes a distinctive group: (1) guarding against the exer­ cise of arbitrary power and ensuring that the commonsense judg­ ment of the community will act as a hedge against the overzealous or mistaken prosecutor, (2) preserving public confidence in the fairness of the criminal justice system, and (3) implementing our belief that sharing in the administration ofjustice is a phase of civic responsibility.167 Despite the Court's deliberate avoidance of creating a stan­ dard, New York courts have not been so reticent. In People v. Guz­ man, the New York Court of Appeals held that a group is distinctive if that group constitutes "a substantial and identifiable segment of

Timmel v. Phillips,799 F.2d 1083, 1085 (5th Cir. 1986) (finding Fair Cross Section "required by the Constitution in civil cases"); Guzman, 454 N.Y.S.2d at 860-61 (noting that a Fair Cross Section is required by section 500 of the New York Judiciary Law); Oglesby v. McKinney, 788 N.Y.S.2d 559, 564-55 (Sup. Ct. 2004) (adhering to the same principle of the New York Judiciary Law). 161 Hernandez v. Texas, 347 U.S. 475 (1954). 162 Id. at 482. 163 Id. at 478. 164 Duren, 439 U.S. at 364. 165 See, e.g., Lockhart v. McCree, 476 U.S. 162, 174 (1986) (holding exclusion of jurors opposed to death penalty, or "death qualification" ofjury, does not violate the fair cross-section requirement of the Sixth Amendment). 166 Lockhart, 476 U.S. at 174. 167 Id. at 174-75. 2010] CHALLENGING FELON JURY EXCLUSION 343 the community."168 Other courts, including one New York court, have further defined the elements needed to show that a group is substantial and identifiable: (1) that the group is defined and lim­ ited by some clearly identifiable factor; (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury se­ lection process.169 Although a history of discrimination is not an element for Duren purposes, courts do seem more likely to find that those with such a history are a distinctive or cognizable group.170 Afiican Americans, Hispanics, and women have been accepted by New

168 People v. Guzman, 457 N.E.2d 1143, 1146-47 (N.Y. 1983). 169 People v. Mateo, 664 N.Y.S.2d 981, 995 (Monroe Cnty. Ct. 1997) (citing Willis v. Kemp, 838 F.2d 1510, 1514 (11th Cir. 1988)); see also Anaya v. Hansen, 781F.2d1 (1st Cir. 1986); Carle v. United States, 705 A.2d 682, 685 (D.C. 1998) (citing federal courts applying this formulation of the distinct group test); cf. United States v. Greene, 995 F.2d 793, 797 (8th Cir. 1993) (using a different formulation to determine that per­ sons who have been charged but not convicted of a felony are not a distinctive group). At least one court has added another requirement to the first prong of Duren: distinctiveness should apply only to groups that "have been subjected to discrimina­ tion and prejudice within the community." Anaya, 781 F.2d at 5. Where the "distinc­ tiveness" of less educated individuals and young adults was at issue under the Duren test, the First Circuit reasoned that the history of discrimination and prejudice re­ quirement was necessary to distinguish the groups that matter for jury selection pur­ poses from the "literally thousands of 'cognizable groups"' present in society, including "barbers, overweight persons, Red Sox fans, scoutmasters, Marine veterans, radio amateurs, and so on, ad infinitum." Id. at 6. That court was responding to a concern about the explosion of claims it foresaw if groups with no such history are held distinctive for Duren purposes. That court feared that, once a group is "distinc­ tive," a mere showing of statistical underrepresentation of group members on the venire in comparison to their representation in the community as a whole will make out a prima fade violation of the Cross Section Requirement. Id. at 8. It overlooked the third Duren element: systematic exclusion. The Anaya court minimized the im­ pact of not finding the contested groups to be distinctive by explicitly pointing out that the Constitution provides other protections from "invidious exclusion of quali­ fied persons from jury service, whatever group they come from." Id. at 7. The court seems to suggest that a challenge under the Equal Protection clause would be appro­ priate any time there was evidence of intentional discrimination against any distinct group. See Anaya, 781 F.2d at 4. 170 See Kalt, supra note 67, at 71; Donald H. Zeigler, Young Adults as a Cognizab/,e Group injury Se/,ection, 76 MICH. L. REv. 1045, 1062 (1978) (suggesting that what moti­ vates judicial decisions about distinctiveness "may be [the courts'] confusion of the concepts of cognizability and suspectness"); id. at 1064 (arguing that "to date, courts have treated cognizability in much the same manner in sixth amendment and equal protection cases"); Mitchell S. Zuklie, Rethinking the Fair Cross-Section Requirement, 84 CAL. L. REv. 101, 132-146 (1996) (describing conflation between cross-section doc­ trine and equal protection; suggesting new test for group cognizability for cross-sec­ tion purposes). 344 NEW YORK CITY LAW REVIEW [Vol. 13:313

York courts as distinctive groups for fair-cross-section purposes. 171 The Supreme Court has accepted these as distinctive groups as well. 172 The Court has explained that exclusion of these groups from jury service denies criminal defendants the "benefit of the common-sense judgment of the community" as a protection against arbitrary governmental power.173 Excluding potential ju­ rors "on the basis of some immutable characteristic such as race, gender, or ethnic background" creates an "appearance of unfair­ ness" which undermines public confidence in the criminal justice system; such an exclusion also deprives members of historically dis­ advantaged groups of their rights as citizens to participate in the administration of justice.174 Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.175 As the Court has clearly explained, " [ t] o exclude racial groups from jury service [is] at war with our basic concepts of a democratic soci­ ety and a representative government."176 Groups without a history of disadvantage seem to have a more tenuous relationship with distinctive status. Day laborers, whose ex­ clusion was held impermissible in Thiel in 1946, and other eco­ nomic groups may not be a distinctive group for the purposes of modern fair-cross-section doctrine because it is too difficult to de­ lineate membership at a single moment in time177 and because the

171 People v. Guzman, 454 N.Y.S.2d 852 (App. Div. 1982) (Hispanics); People v. Parks, 359 N.E.2d 358 (N.Y. 1976) (women); People v. Hobson, 643 N.Y.S.2d 610 (App. Div. 1996) (African Americans). 172 See, e.g., Berghuis v. Smith,_ U.S._, 130 S. Ct. 1382 (2010); Duren v. Mis­ souri, 439 U.S. 357, 357 (1979); Taylor v. Louisiana, 419 U.S. 522, 522 (1975); Her­ nandez v. Texas, 347 U.S. 475, 478 (1954). 173 Lockhart v. McCree, 476 U.S 162, 174-75 (1986). 174 Id. 175 Edmonson v. Leesville Concrete Co., Inc. 500 U.S. 614, 630 (1991) ("[R]acial discrimination in the selection of jurors 'casts doubt on the integrity of the judicial process.' ... A civil proceeding often implicates significant rights and interests. Civil juries, no less than their criminal counterparts, must follow the law and act as impar­ tial factfinders. And, as we have observed, their verdicts, no less than those of their criminal counterparts, become bindingjudgments of the court. Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal." (internal citations omitted)). 176 Taylor, 419 U.S. at 527. 177 Anaya v. Hansen, 781F.2d1, 4 (1st Cir. 1986) (distinguishing Thiel on the issue of blue-collar workers: "Thiel . .. cannot be read as mandating that blue-collar workers are a 'cognizable group' as that term was used in Duren, such that a mere showing of statistical underrepresentation, with little more, indicates a prima fade violation of the sixth amendment. In Thiel, there was uncontroverted evidence that wage earners were deliberately discriminated against; '[b]oth the clerk of the court and the jury commissioner testified that they deliberately and intentionally excluded from the jury lists all persons who work for a daily wage.'"); People v. Mateo, 664 N.Y.S.2d 981, 996 2010] CHALLENGING FELON JURY EXCLUSION 345

blue-collar "community of interest" encompasses diverse occupa­ tions and varying compensation levels. 178 A New York court has held that young people, poor people, and recent migrants to a county are not distinctive under Duren because these groups do not share sufficiently similar specific characteristics, failing the second element of the test. 179 There are some limits on groups that are distinctive under Duren despite their fitting either the Supreme Court's intentionally imprecise standard or the more exacting standard adopted by New York courts. Groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors in a particular case-for example, those who refuse to impose the death penalty in a capital case-are not distinctive groups for cross-section purposes. 180 An attribute that is "within the individual's control" cannot define a distinctive group for jury-selection purposes.181 For a successful challenge to proceed, representation of the distinctive group in the jury pool must be not "fair and reasona­ ble." The Supreme Court has not articulated a single standard for determining whether it is. 182 The most commonly used instru­ ments for measuring the fairness and reasonableness of representa­ tion are the comparative disparity183 and absolute disparityI absolute numbers184 tests.

(Monroe Cnty. Ct. 1997) ("The [Thiel] Court did not hold that poor people consti­ tute a distinct group within the community ... Thiel held that discrimination against individuals living below the poverty level in the manner in which jurors were selected was unjustified, [not] that poor people constitute a distinctive group within the com­ munity"); United States v. McDaniels, 370 F. Supp. 298 (E.D. La. 1973), affd sub nom. United States v. Goff, 509 F.2d 825 (5th Cir. 1975). 178 Anaya, 781 F.2d at 6. 179 Mateo, 664 N.Y.S.2d at 995-97 (finding that economic status and age are "flexi­ ble" statuses; poor people are not "a distinct, cognizable group since membership in that group may shift from day to day" and members may have different "attitudes, experiences, and ideas"; no evidence was presented to establish that recent migrants to a county are "defined or limited by some factor, or that a common thread or simi­ larity in attitudes and ideas exist among [them], or that there is a community of interests"). ISO Lockhart v. McCree, 476 U.S. 162, 174 (1986) (holding that prospective jurors who refuse to impose the death penalty are not a distinctive group). is1 Id. at 176. 182 See Berghuis v. Smith,_ U.S._, 130 S. Ct. 1382, 1393 (2010). 183 "Comparative disparity is calculated by dividing the absolute disparity by the population figure for a population group. It measures the diminished likelihood that members of an underrepresented group, when compared to the population as a whole, will be called for jury service." Ramseur v. Beyer, 983 F.2d 1215, 1231-32 (3d Cir. 1992). 184 See infra notes 185-89 and accompanying text. 346 NEW YORK CITY LAW REVIEW [Vol. 13:313

Courts in the Second Circuit frequently apply the "absolute disparity/absolute numbers" test for unfair underrepresenta­ tion.185 The significant figure is the difference between the per­ centage of the population made up by a particular group and the percentage of the jury pool. To illustrate, where a minority group is 45% of the population but represents 35% of the jury pool, this is a 10% disparity.186 In Taylor, where 53% of eligible country residents were women but no more than 10% of the jury wheel was made up of women, the disparity was sufficient to show unfair and unreason­ able underrepresentation.187 In Duren, 54% versus approximately 15% was sufficient.188 In Barnes, where African Americans were un­ derrepresented by approximately 2.8% and Hispanic-Americans were underrepresented in the jury pool by approximately 2.3%, no unfair representation was found. 189 Underrepresentation must be both general and reflected in the specific venire.190 In People v. Parks, where the court accepted the fact that women constituted over 50% of Nassau County re­ sidents, the fact that they constituted only 33% of prospective ju­ rors was not sufficient to establish underrepresentation and meet the Duren standard.191 In that case, the fact that five of the original twelve prospective jurors were women and, ultimately, three wo­ men sat on the petitjury, contributed to that court's deciding that they were not unfairly underrepresented.192 Underrepresentation must be systematic to sustain a Duren jury construction challenge. It is "systematic" if it is "inherent in the particular jury-selection process utilized."193 The underrepresenta­ tion does not need to be intentional; it is sufficient that "a large discrepancy" between the number of eligible jurors of a particular distinctive group in the population and the number of that group impaneled on the venire occur "not just occasionally, but in every weekly venire for a period of nearly a year."194

185 See, e.g., United States v. Rioux, 97 F.3d 648, 655-56 (2d Cir. 1996); but see, e.g., United States v. Jackman, 46 F.3d 1240, 1247 (2d Cir. 1995) (" [T]he absolute num­ bers approach is of questionable validity when applied to an underrepresented group that is a small percentage of the total population.") (citing United States v. Biaggi, 909 F.2d 662, 678 (1990)). 186 United States v. Barnes, 520 F. Supp. 2d 510, 514 n.5 (S.D.N.Y. 2007). 187 Taylor v. Louisiana, 419 U.S. 522, 524 (1975). 188 Duren v. Missouri, 439 U.S. 357, 365-66(1979). 189 Barnes, 520 F. Supp. 2d at 515. 190 Duren, 439 U.S. at 366. 191 People v. Parks, 359 N.E.2d 358, 365 (N.Y. 1976). 192 Id. 193 Duren, 439 U.S. at 366. 194 See id.; United States v. Jackman, 46 F.3d 1240, 1246 (2d Cir. 1995). 2010] CHALLENGING FELONJURY EXCLUSION 347

An exclusion that is the result of a legislative act can be "sys­ tematic. "195 Underrepresentation resulting from voluntary behav­ ior patterns "unencouraged by state action"196 does not make out systematic exclusion. 197 Where no facts are pled that demonstrate a systematic exclu­ sion, the courts defer to the intention of jury construction proce­ dures. For example, in United States v. Bullock, the defendant lost a cross-section claim under Duren on the element of systematic exclu­ sion even though a venire of 100 potential jurors did not include any African Americans or minority individuals.198 The defendant did not describe the process by which the exclusion was effectuated and the court deferred to the district's goal of achieving balanced juries and explicitly stated, " [ t] hat the district court failed in its attempt to achieve such balance does not detract from the court's demonstrably race-neutral approach to juror selection."199

1. Excluding Individuals with Felony-Conviction Histories is a Prima Facie Violation of the Fair-Cross-Section Requirement I propose that, under Duren,200 felon jury exclusion is a prima facie violation of the fair-cross-section requirement. The purposes of the fair-cross-section doctrine laid out by the Court in Taylor are not served by excluding those with a history of felony convictions from the jury pool. The commonsense judgment of a community certainly includes all members of a community, whether or not they have had contact with the criminal justice system. This judg-

195 Jones v. New York City Transit Auth., 483 N.Y.S.2d 623, 625 n.2 (Civ. Ct. 1984). 196 People v. Taylor, 743 N.Y.S.2d 253, 264 (Sup. Ct. 2002). 197 Id. at 263-65 (finding no systematic exclusion where Hispanics were voting less, driving less, and filing tax returns with less frequency than their fellow citizens and jury pool lists were derived from lists of registered voters, licensed drivers and tax payers); People v. Guzman, 454 N.Y.S.2d 852, 854-56 (App. Div. 1982), affd, 457 N.E.2d 1143 (N .Y. 1984) (finding no systematic exclusion where Hispanics responded in different proportions to subpoenas and summonses for jury service and different proportions claimed statutory exemptions); People v. Mateo, 664 N.Y.S.2d 981, 996-98 (Monroe Cnty. Ct. 1997) (finding no systematic exclusion where Hispanics were voting less and driving less and jury pool lists were derived from lists of regis­ tered voters and licensed drivers); People v. Marrero, 487 N.Y.S.2d 853, 854 (App. Div. 1985) (finding no systematic exclusion where jury selection took place on Jewish holiday, thus excluding Orthodox Jews who chose to take exemption from the pool for the holiday). 198 United States v. Bullock, 550 f.3d 247, 251-52 (2d Cir. 2008). It may have been possible for the plaintiff to meet the fair-cross-section requirement had he pied spe­ cific facts. 199 Id.; see also United States v. Joyner, 201 F.3d 61, 75 (2d Cir. 2000). 200 Duren v. Missouri, 439 U.S. 357, 359 (1979). 348 NEW YORK CITY LAW REVIEW [Vol. 13:313 ment is not threatened by allowing those with such histories to be included in the jury pool. If a particular individual does not have the judgment needed to identify and protect against arbitrary exer­ cises of power, that person would be struck during voir dire. Including those with conviction histories would boost public confidence in the fairness of the criminal justice system. It would alleviate some of the perception that blacks and whites are treated differently by the courts by reducing some of the racial imbalance in the jury pool.201 The justice system as a whole would likely gain credibility because a system that does not avoid the involvement of those who have experienced its reverberations in their own lives seems fairer than one that avoids such individuals. When the civic responsibility endemic to the administration of justice is shared by those who are re-entering civil society after a conviction, the entire society benefits from the integration that is achieved. The Duren concept of a cognizable or distinct group encom­ passes those with conviction histories, whether characterized as a requirement that the group be "substantial and identifiable"-in the words of the New York Court of Appeals-or by elements adopted by some New York courts. At least one federal circuit court has already conceded that individuals' contact with the criminal justice system is sufficient to make them a distinctive group for cross-section purposes. 202 People with conviction histories fit within the more exacting criteria articulated by New York courts for distinct or cognizable groups under Duren. Individuals with conviction histories are cer­ tainly a "substantial and identifiable segment" of many communi­ ties, as articulated in Guzman.203 The experience of those with conviction histories also fits well into the elements adopted by the

201 See generally supra note 47 and accompanying text (describing the perceived and often factually disproportionate treatment of blacks and other minority groups in the justice system, using the trial of Rodney King as backdrop). 202 United States v. Greene, 995 F.2d 793, 797 (8th Cir. 1993) (discussing persons who have been charged with a crime but not convicted); cf. United States v. Barry, 71 F.3d 1269 (7th Cir. 1995). In Barry, the Seventh Circuit concluded that those who have pending felony charges against them are not a distinctive group in reference to the purposes set out in Taylor because, by running afoul of the law, accused persons have shown poor judgment, not "the common-sense judgment of the community." Barry, 71 F.3d at 1273. The reasoning overlooked the basic fact that simply being accused of a crime is not dispositive of either an individual's past actions or intrinsic qualities. That court also theorized that alleged felons' exclusion, "more than their inclusion, would be likely to preserve public confidence in the criminal justice sys­ tem." Id. Scientific evidence ofjuror's and the public confidence in the system contra­ dicts the Seventh Circuit's theory. See supra note 47 and accompanying texL 203 See, e.g., supra notes 55-56 and accompanying text. 2010] CHALLENGING FELON JURY EXCLUSION 349

Mateo court;204 those with felony histories are certainly defined and limited to this discrete factor. Felony-conviction histories are much simpler to define than "youth" or "poverty"; one need only look at a person's criminal record. As enumerated, a common experience also runs through the group of people with felony-conviction histo­ ries-that of being convicted. Conviction data in New York demon­ strate that this is not entirely within an individual's control.205 There is also a community of interest among these people who have had encounters with the criminal justice system, their advo­ cates, supporters, friends, and families. Although courts have held otherwise,206 the interests cannot be adequately represented if all individuals with criminal conviction histories were eliminated from the jury pool; the entire community's voice would be stifled. The explicit limits placed on groups that can be held cogniza­ ble under Duren do not encompass those with felony-conviction his­ tories. A felony-conviction history is not an indication of an attitude that would prevent or substantially impair competent per­ formance of the duties of a juror in a particular case.207 While be­ havior that leads to a felony conviction is probably within an individual's control, the conviction itself is not. Factors outside an individual's control that can lead to a permanent history of a fel­ ony conviction include the assignment by the legislature of certain transgressions to the status of "felonies," policing patterns in cer­ tain communities, and burdens on the courts that result in many innocent defendants taking pleas to felony charges in exchange for "time served," or other low-impact sentences. The second and third Duren elements are easily met. As all persons with felony-conviction histories are disqualified and only a

204 See People v. Mateo, 664 N.Y.S.2d 981, 995 (Monroe Cnty. Ct. 1997) (the ele­ ments are race or sex, a common thread or basic similarity in attitudes, ideas, exper­ iences, or a community of interests). 205 See supra text accompanying notes 35-42; see also Bob Herbert, Watching Certain Peopl.e, N.Y. TIMES, Mar. 2, 2010, at A23. 206 The California Supreme Court has addressed the effects that eliminating those with conviction histories from the jury pool has on the voice of the community and held that it did not have negative effects, though with spurious reasoning. See Rubio v. Superior Court, 593 P.2d 595, 609 (Cal. 1979). There, the court held that ex-felons' interests could be adequately represented because "several classes of persons eligible for jury service have had similar experiences of loss of personal liberty followed by social stigmatization." Id. at 599. The court used the example of people who have been confined to mental institutions that are "more like a prison than a medical facil­ ity." Id. at 599 n.7. This case is not binding on New York courts and its reasoning is dubious. In response to the majority's reasoning, Judge Tobriner took issue with what he termed "the majority's 'vicarious' representation analysis." Id. at 603 (Tobriner,J., dissenting). 207 United States v. Barry, 71 F.3d 1269, 1274 (7th Cir. 1995). 350 NEW YORK CITY LAW REVIEW [Vol. 13:313 few are accidentally included in the jury pool, it will not be difficult to show that there is a "by the numbers" disparity, both generally and in a specific venire. Individuals with felony histories are ex­ cluded by statute; that exclusion is per se systematic.208 Felony convictions are distinguishable from voluntary acts free from encouragement by state action. Data evincing trends of ra­ cially biased policing and prosecutions, as well as the criminaliza­ tion of addiction by the War on Drugs, all point to the involuntary nature of at least some felony convictions. 209 Felony conviction nec­ essarily involves actions by the state. 210 The state is involved in po­ licing commumt.J.es, apprehending suspects, arresting and charging them, creating classifications of offenders, assigning sta­ tus to those convicted, and creating collateral consequences such as felon jury exclusion. The state has created an ever-widening shadow of collateral consequences of conviction from which it is nearly impossible to escape. Felon jury exclusion is a systematic exclusion that results in unfair and unreasonable jury pool underrepresentation of the dis­ tinctive group of persons with conviction histories. Therefore, I propose that it is a prima facie violation of the fair-cross-section requirement that can only be sustained if New York can show that a significant state interest, as stated in Duren, is manifestly and prima­ rily advanced by the exclusion.

2. Excluding African Americans and Hispanics is a Prima Facie Violation of the Fair-Cross-Section Requirement Under Duren, I propose that felon jury exclusion is also a prima facie violation of the fair-cross-section requirement due to its sys­ tematic exclusion of African Americans and Hispanics from the jury pool.211 For purposes of cross-section doctrine in New York courts, African Americans and Hispanics are distinctive groups.212 A "by the numbers" analysis is likely to find that approximately 22% of African American adults are excluded from the jury pool in

208 Jones v. New York City Transit Auth., 483 N.Y.S.2d 623, 625 n.2 (Civ. Ct. 1984). 209 See supra notes 37-45 and accompanying text. 210 See Shelly v. Kraemer, 334 U.S. 1, 14 (1948) (stating that the proposition that the action of state courts and ofjudicial officers in their official capacities constitutes state action within the meaning of the Fourteenth Amendment is a principle which has long been settled by past Supreme Court decisions). 211 See supra notes 159-199 and accompanying text. 212 See People v. Guzman, 454 N.Y.S.2d 852 (App. Div. 1982); People v. Parks, 359 N.E.2d 358 (N.Y. 1976); People v. Hobson, 643 N.Y.S.2d 610 (App. Div. 1996). 2010] CHAILENGING FELON JURY EXCLUSION 351

New York State.213 In a case where no African Americans or His­ panics are on the jury or in the jury pool, this is likely sufficient to establish underrepresentation. A more successful challenge will be set in a community severely impacted by the racial imbalances of the criminal justice system. Data show that African Americans and Hispanics are more often the bearers of felony-conviction histories and therefore the blanket exclusion from the jury pool of all individuals with such histories systematically excludes them disproportionately.214 This is inherent in the jury selection process and should be sufficient to make out a systematic exclusion under Duren, as long as the exclu­ sion is shown to occur "notjust occasionally."215 Under Duren, sys­ tematic underrepresentation need not be intentional to make out a prima facie violation of the fair-cross-section requirement.216 A neutral statute that refers to a neutral characteristic can be the un­ constitutional method for such underrepresentation. There is no discriminatory intent requirement to make out a prima facie case of a fair-cross-section violation. 217

3. Excluding African American and Hispanic Men

African American and Hispanic men are particularly absent from the cross section of the community that is the jury pool.218 The criminal justice system has a more profound impact on minor­ ity men than minorities in general.219 The Second Department of the New York Appellate Division is open to considering a hybrid race-and-gender group. It has remanded cases in which the defen­ dant alleged discriminatory preemptory challenges to African

213 See supra notes 40-47 and accompanying text. 214 See supra notes 37-42 and accompanying text. 215 Duren v. Missouri, 439 U.S. 357, 366 (1979). 216 Edmonson v. Leesville Concrete Co., Inc. 500 U.S. 614, 630 (1991) ("[R]acial discrimination in the selection of jurors 'casts doubt on the integrity of the judicial process.' ... A civil proceeding often implicates significant rights and interests. Civil juries, no less than their criminal counterparts, must follow the law and act as impar­ tial factfinders. And, as we have observed, their verdicts, no less than those of their criminal counterparts, become binding judgments of the court. Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.") (internal citations omitted); Washington v. Davis, 426 U.S. 229, 239-41 (1976). · 217 Davis, 426 U.S. at 239-41. 218 See supra notes 35-42 and accompanying text (discussing the racially skewed impacts of the criminal justice system by relaying statistics that reflect disproportion­ ately larger percentages of men-especially African American and Hispanic men­ than other classes regarding felony convictions). 219 See supra notes 35-42 and accompanying text. 352 NEW YORK CITY I.AW REVIEW [Vol. 13:313

American males220 and African American females221 on the jury panel to give the defense the opportunity to present evidence that they are cognizable groups that warrant protection under Batson v. Kentucky. 222 A court may find that African American males or His­ panic males are a cognizable group for Duren purposes as well. Afri­ can American men and Hispanic men are limited by two distinct factors: race and gender. They, at least superficially, share similari­ ties in attitudes, ideas and experience Uust ask any marketing exec­ utive); and there is certainly a "community of interest among members of the group such that the group's interests cannot be adequately represented from the jury selection process."223 African American or Hispanic women, who are excluded in significantly smaller numbers, certainly represent some of the group's inter­ ests,224 but do not share the attitudes or experiences of minority men in American society. "By the numbers" approximately 33% of African American adult males are excluded from the jury pool in New York State.225 In a case where no African American or Hispanic men are on the jury or in the jury pool, this is likely sufficient to establish underrepresentation.

4. Justifying the Infringement: New York's "Significant" Interest Once a prima fade violation of the right to a jury drawn from

220 People v. Jerome, 828 N.Y.S.2d 78, 79 (App. Div. 2006); cf Curtis v. State, 685 So. 2d 1234, 1237 (Fla. 1997) (finding that white men are a cognizable group in the jury venire context). But other jurisdictions have avoided the issue of whether African American men are a distinctive group or dismissed it with little analysis. See, e.g., Carle v. United States, 705 A.2d 682, 685 (D.C. 1998) (issue of whether African American men are a distinctive group raised but not considered in the context of a Cross Sec­ tion Challenge to D.C. 's ten-year exclusion of convicted felons from the jury pool); United States v. Greer, 900 F. Supp. 952, 957 (N.D. Ill. 1995) (finding that the defen­ dant identified "no authority that African American males, or any other group de­ fined along race and gender lines, is a Duren distinctive group"). 221 People v. Garcia, 636 N.Y.S.2d 370, 372 (App. Div. 1995); see Jean Montoya, "VWiat's So Magic[ al] About Black Women?" Peremptvry ChaUenges at the Intersection of Race and Gender, 3 M1ctt.J. GENDER & L. 369, 392 -403 (1996) (arguing for the viability of an equal protection challenge to peremptory challenges based on either intersec­ tional-both race and gender-status or on separate charges of discrimination by race and by gender). 222 See Batson v. Kentucky, 476 U.S. 79, 86-87 (1986) (The right to equal protec­ tion prohibits discriminatory preemptory challenges). 223 See supra note 169 and accompanying text. 224 See, e.g., United States v. Blair, 493 F. Supp. 398, 407 (D. Md. 1980) ("[l]t is not clear why blacks of both sexes should not be considered in determining whether there has been underrepresentation of a racial group under a particular jury plan."). 225 See supra notes 40-47 and accompanying text. 2010] CHALLENGING FELON JURY EXCLUSION 353

a fair cross section of the community has been established, the gov­ ernment bears the burden of justifying the infringement by show­ ing that a "significant state interest" is "manifestly and primarily advanced by those aspects of the jury-selection process" that result in the disproportionate exclusion of a distinctive group.226 The right to a proper jury cannot be overcome on merely ra­ tional grounds or for the purposes of administrative conve­ nience. 227 The government interest must be based on something more than a stereotype. In Taylor, where there was a prima facie case of a violation of the fair-cross-section requirement created by a statute that excluded all women from the jury pool unless they vol­ unteered to serve, the State claimed that differential treatment of women was justified because women served as caretakers for their children and that the state had an interest in protecting the role of women in the home.228 The Court did not disagree with the valid­ ity of these assertions but nonetheless reasoned, [i] t is untenable to suggest these days that it would be a special hardship for each and every woman to performjury service or that society cannot spare any women from their present duties. This may be the case with many, and it may be burdensome to sort out those who should be exempted from those who should serve. But that task is performed in the case of men, and the administrative convenience in dealing with women as a class is insufficient justification for diluting the quality of community judgment represented by the jury ....229 Felon exclusion is normally discussed as a regulation of the jury system, not a punishment for potentialjurors.23° Felon exclu­ sion laws are aimed at protecting society from the dangers of tainted juries.231 The specific interests usually put forward by gov­ ernments to justify felon exclusion from jury service are (1) inher-

226 Duren v. Missouri, 439 U.S. 357, 367 -68 (1979). 227 Taylor v. Louisiana, 419 U.S. 522, 534-35 (1975). 228 Id. at 534. 229 Id. at 534-35 (emphasis added). 230 SeeR.R.E. v. Glenn, 884S.W.2d189, 193 (Tex. App. 1994) (civil malpractice case under Texas constitution, referring to "purity and efficiency of the jury system" as the basis of criminal exclusion); see also Fletcher, supra note 57 (discussing the lack of convincing justification for disenfranchisement as punishment). 231 All collateral consequences, including jury exclusion, are a legal burden consti­ tuting punishment that should only be imposed through individualized sentencing, not by a statute, under the Bill of Attainder Clauses of the U.S. Constitution, con­ tained in Article. I, Sections 9 and 10. U.S. CONST. art. I § 9 cl. 3; U.S. CoNST. art. I § 10, cl. 1. But in Hawker v. New York the Court held that where consequences are regulatory in nature, they do not violate the ex post facto clause. 170 U.S. 189, 197-98 (1898). 354 NEW YORK CITY IA W REVIEW [Vol. 13:313

ent bias brought to the process by felon jurors232 and (2) protecting juries from a lack of probity.233 At least one court has reasoned that the bias of a person with a conviction history, if such persons are in the jury pool, stands in the way of "having jurors who can conscientiously and properly carry out their sworn duty to apply the law to the facts of the partic­ ular case."234 But it is not clear whether a felonjuror's bias will be for or against a criminal defendant.235 Although arguably plausible in a criminal trial context, bias hardly seems credible in the civil trial context. Felons might have an "ax to grind" when judging a prosecutor's case, but it is hard to see how a felony conviction would prejudice them in a civil case.236 "[T] he existence of potential biases or prejudices of a juror with a prior felony conviction is substantially lessened in a civil case as opposed to a criminal case."237 In Companioni v. Tampa, 238 a Florida appeals court held that a civil litigant was not entitled to a new trial on account of the failure of the two jurors to disclose prior felony convictions without a showing of actual bias or prejudice.239 That

232 Courts have struggled with articulating this justification as anything more than "the bias justification." In a rare instance of an explicit discussion of what the bias justification actually is, one court inartfully stated: [A] person who has suffered the most severe form of condemnation that can be inflicted by the state [sic] a conviction of felony and punish­ ment therefor [sic] might well harbor a continuing resentment against "the system" that punished him and an equally unthinking bias in favor of the defendant on trial, who is seen as a fellow underdog caught in its toils. Rubio v. Superior Court, 593 P.2d 595, 600 (Cal. 1979). 233 See infra note 245-48 and accompanying text. 234 United States v. Greene, 995 F.2d 793, 797 (8th Cir. 1993). 235 See United States v. Barry, 71 F.3d 1269, 1273 (7th Cir. 1995) ("[W]e think that there is no need to theorize about whether an accused felon is likely to be piased against the government or, on the other hand, whether he is likely to think, from some personal experience, that all persons charged will be likely to lie to avoid convic­ tion and so be biased against the defendant."). 236 Kalt, supra note 67, at 168. 237 Froede v. Holland Ladder & Mfg., 207 Mich. App. 127, 133 (Mich. Ct. App. 1994) (decided before Michigan amended its law to exclude all felons from all jury service). 238 Companioni v. Tampa, 958 So. 2d 404, 417 (Fl. Dist. Ct. App. 2007). 239 Other jurisdictions vary. For example, the Florida felon jury exclusion statute reads: No person who is under prosecution for any crime, or who has been convicted in this state, any federal court, or any other state, terri­ tory, or country of bribery, forgery, perjury, larceny, or any other of­ fense that is a felony in this state or which if it had been committed in this state would be a felony, unless restored to civil rights, shall be quali­ fied to serve as a juror. FL. STAT.§ 40.013(1) (2009); cf. N.Y.Juo. LAw § 510(3). 2010] CHALLENGING FELONJURY EXCLUSION 355 court reasoned that a rule requiring a new trial whenever a juror served when he or she should have been disqualified due to a fel­ ony-conviction history "would be supportable only if one could conclude that the service of a juror with a prior felony conviction­ no matter how old the conviction or however unrelated to the mat­ ter to be tried-would deprive one or both of the parties of a fair and impartial jury."240 That court conceded that "many persons with prior felony convictions undoubtedly serve on juries" in Flor­ ida, 241 and dismissed the notion that the presence of a juror with a conviction history by itself leads to a biased jury as inapplicable in the civil context. 242 The bias rationale is one of administrative convenience and therefore insufficient to constitute a "significant state interest" that would justify eliminating a distinct group from the jury pool. It is a gross overgeneralization. The rest of the jury selection process is designed to make individualized determinations of nonpartial­ ity.243 Voir dire eliminates individuals who are not fit to serve by treating jury competence as "an individual rather than a group or class matter. "244 Treating convictions as grounds for a challenge "for cause" is an alternative that addresses concerns about the bias of a particular jury while treating all potential jurors as individuals. Under the current law, New York conflates felony-conviction his­ tory with a bias that would affect jury deliberations. This results in the abrogation of citizens' rights to participate in a democratic in­ stitution and threat to civil litigants' and criminal defendants' rights to impartial juries drawn from their communities. The probity justification may be rational but it is not sufficient to be a significant government interest. Courts have recognized the government's legitimate interest in protecting probity of juries as a rational basis in the Equal Protection context for excluding felons from juries in criminal trials.245 But mere rationality is not suffi­ cient to meet the Duren "significant state interest" standard.246

240 Companioni, 958 So. 2d at 413. 241 Id. at 417. 242 Id. at 413-14. 243 Kalt, supra note 67, at 102-05; Binnall, supra note 54, at 33. 244 Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946). 2 4 5 See, e.g., United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (rational basis review of Equal Protection Clause claim of discrimination against felons); United States v. Greene, 995 F.2d 793, 795 (8th Cir. 1993); United States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979) (holding that felon exclusion "is intended to assure the 'probity' of the jury" is rationally based) (quoting H.R. Rep. No. 90-1076 (1968), re­ printed in 1968 U.S.C.C.A.N. 1792, 1796). 246 See supra text accompanying note 226. 356 NEW YORK CITY LAW RF,VJEW [Vol. 13:313

Deference to· probity seems absurdly paternalistic and another administrative justification for felon jury exclusion given the fact that many felons are honest, many dishonest people are not felons, and many people in the population have committed acts that are felonies under the law but have never been caught.247 In his article The Number They Gave Me When They Revoked My Citizenship: Perverse Consequences of Ex-Felon Civic Exi/,e, James M. Binnall presents the probity justification put forward for felon jury exclusion as the product of a belief that a felony conviction is evidence of an intrin­ sic, permanent character flaw that is a barrier to functional self­ government. 248 As Binnall explains, this belief is based on at least three untested presumptions: that a felony conviction is a clear sign of "bad character"; that a person's character will never change; and that good character is necessary, to have an understanding of the public good and the ability to self-govern.249 Allowing these presumptions to create a policy that excludes a distinctive group from the jury pool may be rational but it is not a significant govern­ ment interest. Recidivism is a justification sometimes proffered for keeping all individuals with felony-conviction histories out of the jury pool based on the theory that they are likely to continue being criminals.250 The argument that felons should be barred from ju­ ries because they are, as a group, likely to re-offend, as Professor Kalt points out, is incompatible with notions of due process and the presumption of innocence.251 This concern about "criminals" on juries is not shared by all courts. The United States District Court for the Eastern District of New York has clearly stated that "[e]ven if [a] juror had been engaged in criminal conduct at the time of the voir dire, his jury service would not, of itself, have vio­ lated [the criminal defendant's] constitutional rights to a fair and impartial jury."252

247 See Kalt, supra note 67, at 102-03; ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 112 (2003). 248 James M. Binnall, The Number They Gave Me When They Revoked My Citizenship: Perverse Consequences ofEx-Felon Civic Exile, 44 WILLAMETTE L. REv. 667, 673- 74 (2008). 249 Id. 250 See Kalt, supra note 67, at 145-48. 251 Id. at 146. 252 Blount v. Keane, No. CV-91-0115, 1992 WL 210982, at *6 (E.D.N.Y. Aug. 6, 1992). Some jurisdictions now impose a waiting period after the end of criminal jus­ tice supervision or the time of sentencing before the right to be selected for jury service is restored to address concerns about allowing those who have just been re­ leased from supervision and are statistically likely to have further contact with the criminal justice system to be included in the jury pool. See Kalt, supra note 67, at 145-48. 2010] CHALLENGING FELON JURY EXCLUSION 357

The reluctance ofjudges to overturn verdicts reached by juries that erroneously contain members with felony-conviction histories, unless the appellant can show actual bias in the jury deliberations, undermines the most common argument against felon jury exclu­ sion-that individuals with felony-conviction histories inherently bring bias to the jury. The mere presence of a juror who has been convicted of a felony on a New York jury does not invalidate the proceeding or require that a new trial be held absent a showing of fraud or prejudice.253 The Third Department has held that the fact that a juror was, unbeknownst to him, the subject of a grand jury investigation while serving on a criminal trial jury and had a youth­ ful offender adjudication in his past was not sufficient to require setting aside the verdict reached by the jury on which he served on the ground that the defendant had been denied his right to a fair and impartialjury.254 That court found the facts insufficient to con­ stitute a violation of section 510 of the New York Judiciary Law. 255 That court also noted that, even if there were sufficient facts to find a violation, the verdict need not be set aside because the juror's presence, without more, was neither prejudicial under section 440.10(£) nor a violation of the defendant's constitutional rights under section 440.IO(h) of the New York Criminal Procedure Law. 256 There do not appear to be any New York civil cases in which litigants challenged a verdict because of the presence of a juror who had been convicted of a felony. A blanket felon jury exclusion only serves the interest of ad­ ministrative convenience. Such exclusions are explicitly unlawful in the employment context absent consideration of particular guide­ lines.257 Voir dire procedures in New York currently successfully

253 People v. Mercado, 753 N.Y.S.2d 125 (App. Div. 2002) (requiring the showing of bias due to felon jurors' non-disclosure of his status before a new trial is granted); People v. White, 354 N.Y.S.2d 735 (App. Div. 1974) (where grand jury foreman had not disclosed his felony-conviction history, the court refused to overturn the verdict without a showing of bias). 254 People v. Astle, 503 N.Y.S.2d 175, 177 (App. Div. 1986). 255 Id. 256 Id. 257 An employer must not have a blanket ban on hiring or retaining individuals who have records of arrest or conviction. When making an adverse hiring or retention decision based on criminal record history, guidelines issued by the U.S. Equal Em­ ployment Opportunity Commission at the federal level require that an employer show that there is an underlying business necessity for the decision and that it has consid­ ered (1) the nature and gravity of the offense or offenses, (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought. U.S. Equal Emp't Opportunity Comm'n, Policy Statement on the Issue of Conviction Records under Titl.e VII of the Civil Rights Act of 1964, as amended by 42 U.S.C. § 2000e et seq. (Feb. 4, 1987); U.S. Equal Emp't Opportunity Comm'n, Policy Gui- 358 NEW YORK CITY LAW REVIEW [Vol. 13:313

eliminate those members of the community whose experience leads them to a biased view of the justice system-crime victims, police officers, lawyers, etc.-without excluding them categori­ cally. 258 In the jurisdictions that allow those with felony-conviction histories to serve on juries, voir dire also successfully eliminates those whose specific conviction histories suggest they would be bi­ ased members of ajury.259 In his defense of disqualification for jury service based on an exclusion that, although admittedly disproportionately excluding African Americans, is based on a "good reason,"260 Professor Ran­ dall Kennedy ignores the role of voir dire in the jury selection pro­ cess. He writes, [t]hose who have been charged with or convicted of committing felonies are likely to bear a grudge against the criminal justice system. Furthermore, in the vast majority of instances, commit­ ting a serious crime can properly be seen as a disturbing sign of personal irresponsibility.261 This logic does not amount to a significant government interest. It is purely conjecture and does not take into account the specific abilities and biases of a particular potential juror. Studies of public opinion about the jury system suggest that, due to racial impact, excluding all those with felony-conviction histories actually does more harm to the public's perception of the jury system as unbi­ ased than any effect that a single individual with a felony convic-

dance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended by 42 U.S.C. § 2000e et seq. (Sept. 7, 1990). Under Article 23-A of the New York State Correction Law, a criminal conviction is only relevant if a direct relationship exists between the conviction and the prospective job or if employment would pose an unreasonable risk to persons or property. N.Y. CoRR. LAw § 753 (McKinney 2009). An employer cannot presume a direct relation­ ship or an unreasonable risk exists; instead, it must evaluate the following factors, among others, before reaching that conclusion: (1) New York public policy in favor of employing people with conviction histories; (2) the necessary duties and responsibili­ ties of the job and the bearing the conviction has on the fitness and ability of the applicant or employee to fulfill them; (3) how long ago the offense occurred, how serious it was, and the applicant or employee's age at that time; (4) evidence from the applicant or employee of rehabilitation and good conduct; (5) the legitimate interest of the employer in protecting people and property; and (6) a Certificate of Relief from Disabilities or Certificate of Good Conduct issued either by a court or the Board of Parole to the applicant or employee. Id. Both certificates create a legal presump­ tion that the applicant or employee is "rehabilitated" of her convictions. See N.Y. CoRR. LAw § 750 et seq. (McKinney 2009). 258 See Kalt, supra note 67, at 102-03; Binnall, supra 54, at 33. 259 See Kalt, supra note 67. 260 RANDALL KENNEDY, RAcE, CRIME AND THE LAw 235 (1998). 261 Id. Professor Kennedy presents a similarly stereotype-based explanation for why the criterion of "sanity" is appropriate. Id. at 234-35. 2010] CHAUENGING FELON JURY EXCLUSION 359 tion who was subject to voir dire and selected for jury service can possibly have on its actual bias.262 Justifications for felon exclusion do not fit easily into the usual explanations for the functioning of criminal law and therefore are not treated with the deference usually afforded to penological in­ terests. 263 Being excluded from the jury pool does not serve to re­ habilitate a convicted felon.264 Quite the opposite--it suggests that whatever rehabilitation is accomplished during the time an individ­ ual serves for his crime is either futile or insufficient to allow him or her to participate fully in civil society. 265 The threat of jury ex­ clusion is not likely to deter a potential criminal.266 Excluding those with conviction histories from the jury pool does nothing to prevent future crimes.267 Simply because felon jury exclusion in New York was retained when the rest of the jury selection process was reformed to bring it into compliance with the fair-cross-section requirement does not make it per se constitutional.268 The reasoning of the Court in Tay­ wr is instructive: If at one time it could be held that ... juries must be drawn from a fair cross section of the community but that this require­ ment permitted the almost total exclusion of women, this is not the case today. Communities differ at different times and places. What is a fair cross section at one time or place is not necessarily a fair cross section at another time or a different place.269 Since 1977, when felon jury exclusion in New York was thought to comply with the fair-cross-section requirement, the ef­ fect of the exclusion has changed. The reach of the criminal justice system has expanded to an unprecedented scale. Its impacts on mi­ nority communities are well known. Arguing that the exclusion should be judged by the effects the exclusion was projected to have in 1977 despite thirty years of data demonstrating much greater restrictions on the jury pool than could have then been

262 See, e.g., note 47 and accompanying text. 263 See, e.g., Tumerv. Safley, 482 U.S. 78, 89 (1987); InternalExik, supra note 17, at 160-61 discussing the penological explanations for all collateral sentencing consequences). 264 Kalt, supra note 67,at 132-33. 2MM. . 266 Id. at 135. 267 Id. 268 See Richard Re, Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal jury, 116 YALE LJ. 1568, 1603-04 (2007). 269 Taylor v. Louisiana, 419 U.S. 522, 537 (1975). 360 NEW YORK CITY LAW REVIEW [Vol. 13:313 imagined270 is not likely to convince a court.

B. Equal Protection If the state chooses to use juries, grand juries and the venires for petitjuries are subject to the Equal Protection Clause's require­ ments with respect to the method of their selection.271 When dis­ criminatory selection mechanisms based on group stereotypes rooted in and reflective of historical prejudice have the effect of excluding group members from civil and criminal juries, they vio­ late the Equal Protection rights of those excluded.272

1. Jurors' Right to Non-Discriminatory Jury Construction All citizens have the right not to be excluded from grand- and petitjury lists on the basis of irrelevant factors such as race or em­ ployment status.273 Any group excluded from the jury pool can po­ tentially raise an Equal Protection Clause challenge to the exclusion under the Fourteenth Amendment to the United States Constitution. 274

270 See supra notes 29-31, 33-34, 42 and accompanying text. 271 See Cobbs v. Robinson, 528 F.2d 1331, 1334 (2d Cir. 1975) (grand juries); Bat­ son v. Kentucky, 476 U.S. 79, 85-86 (1986) (petitjuries). 272 Carter v. Jury Comm'n, 396 U.S. 320, 329-30 (1970); Edmonson v. Leesville Concrete Co. Inc., 500 U.S. 614, 630-31 (1991). Commentators suggest that the fun­ damental injury inflicted by discrimination in jury selection is its effect on the ex­ cluded jurors. See, e.g., Barbara Underwood, Ending Race Discrimination injury Selection: Whose Right Is It Anyway? 92 CoLUM. L. REv. 725 (1992); Joel H. Swift, The Unconven­ tional Equal Protection jurisprudence ofjury Selection, 16 N. ILL. U. L. REv. 295 (1996). For example, Barbara Underwood suggests that the primary reason for prohibiting race­ based jury selection is to bring all citizens into full and equal participation in the institutions of American self-government. 92 COLUM. L. REv. at 727. This sentiment echoes the International Covenant on Civil and Political Rights' "participation" re­ quirement. See International Covenant on Civil and Political Rights, art 25, G.A. Res. 2200A (XXI), '][ 21, U.N. GAOR, Supp. No. 16 at 52, U.N. Doc. A/6316 (Dec. 16, 1966). 273 Powers v. Ohio, 499 U.S. 400, 423 (1991) (Scalia, J., dissenting) (citing Carter, 396 U.S. 320, Thiel v. S. Pac. Co., 328 U.S. 217 (1946)); Hernandez v. Texas, 347 U.S. 475, 479 (1954). 274 U.S. CONST. amend. XN, § l; see, e.g., United States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979); Carter, 396 U.S. at 329; Johnson v. Durante, 387 F. Supp. 149, 149 (E.D.N.Y. 1975) (brought by county residents for discrimination by sex, occupation, locality and race in creating Queens County grand jury rolls at the discretion of com­ missioners). Tanya Coke argues that in cases involving racially diverse juries this appli­ cation of Equal Protection-a race neutral doctrine-places the individual juror's rights above the defendant's and the public's interest. See Tanya Coke, Lady justice May Be Blind, But Is She a Soul Sister? Race Neutrality and the Ideal of Representative juries, 69 N.Y.U. L. REv. 327, 339-48 (1994). In Georgia v. McCollom, 505 U.S. 42, 54-55 (1992), the Court held that a defense attorney's racial use of peremptory challenges violated the jurors' Equal Protection rights. Coke explains that the result of this hold- 2010] CHALLENGING FELON JURY EXCLUSION 361

In both Johnson and Carter, potential jurors successfully chal­ lenged the discriminatory application of neutral statutes through the subjective judgments of individual officials, the commissioners, and clerks charged with creating a panel of qualified jurors. 275

2. Irrational Classification: Felons versus Misdemeanants New York's felon jury exclusion law classifies felons as disquali­ fied from inclusion in the jury pool but misdemeanants as quali­ fied. 276 Potential jurors excluded from the jury pool due to felony­ conviction history may be able to successfully challenge the statute on the grounds that it arbitrarily discriminates between similarly situated individuals, i.e., those who have ever been convicted of a felony versus those who have ever been convicted of a misde­ meanor. The Equal Protection Clause requires that all persons sim­ ilarly situated must be treated similarly.277 The statute will only be sustained if the Court finds that it passes the rational-basis test, i.e., that the interest furthered is legitimate and the classification rea­ sonably related to that interest.278 The interests of an inclusive jury selection system were set out by the Court in Taylor. guarding against arbitrary power, preserving confidence in the justice sys­ tem, and sharing the civic responsibility of administeringjustice.279 Other states and the federal judiciary specifically cite probity and bias as justifications for excluding those with felony-conviction his­ tories.280 A court is likely to view all these as legitimate interests. The remaining issue is whether allowing misdemeanants to be included in the jury pool while disqualifying those with felony con­ viction-histories is reasonably related to these interests.281 When ing is that a defense attorney who strikes a white juror in hopes of seating a member of a minority is impermissibly violating the jurors' rights. 275 Carter, 396 U.S. at 329;johnson, 387 F. Supp. at 149. These cases can be distin­ guished from a challenge to the felon jury exclusion statute in that they did not chal­ lenge a legislative act, but challenges to legislative discrimination in the jury pool are certainly permitted. See Taylor v. Louisiana, 419 U.S. 522, 537 (1975); Duren v. Mis­ souri, 439 U.S. 357, 367 (1979) . 276 N.Y.Juo. LAw § 510(3) (McKinney 2003). 277 Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CAL. L. REv. 341, 344 (1949); see Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) ("[T]he classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legisla­ tion, so that all persons similarly circumstanced shall be treated alike."). 278 U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 533 (1973). 279 Taylor v. Louisiana, 419 U.S. 522, 530 (1975). 280 See supra note 232 and accompanying text. 281 Courts, when faced with similar issues in the jury context, have not given this question a thorough analysis. For example, in United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993), the District Court rejected the claim that federal jury exclusion "un- 362 NEW YORK CITY LAW REVIEW [Vol. 13:313 comparing two individuals who both have criminal history records, the distinctions between a "felon" and a "misdemeanant" may be arbitrary. A person convicted of a misdemeanor and sentenced to 364 days incarceration by the court based on ,the violence of his crime cannot rationally be said to be more qualified to serve on a jury than a person convicted of a drug-related felony and sen­ tenced to a rehabilitation program or another alternative to incarceration. 282 Even under rational-basis review, courts are skeptical of classi­ fying individuals by their felony-conviction histories alone.283 In Smith v. Fussenich, 284 the court struck down automatic disqualifica­ tion of individuals with felony histories from employment with li­ censed detective or security guard agencies on Equal Protection grounds using rational-basis review. That court's reasoning could apply to New York's felon jury exclusion statute-another auto­ matic disqualification-as well: The critical defect in the blanket exclusionary rule here is its overbreadth. The statute is simply not constitutionally tailored constitutionally discriminates against convicted felons" without discussing tht< grounds for the claim. In United States v. Greene, 995 F.2d 793, 795 (8th Cir. 1993), the court dismissed a claim that federal jury exclusion for those accused of a felony was unconstitutional under rational basis review. The following arguments were made by the challenger: (1) "it is irrational to exclude persons who have merely been accused of a felony when persons actually convicted of one are eligible to serve if their civil rights have been restored"; (2) "differentiating in juror eligibility between those who have been charged but not convicted and others who have not been charged contrib­ utes nothing toward the likelihood that jurors will be of unquestionable integrity"; (3) "the exclusion of those who have been charged but not convicted tends to eliminate blacks disproportionately from juror pools. (Evidence to this effect was presented in the trial, was accepted as true by the trial court, and is evidently not seriously disputed by the government[])"; and (4) "the exclusion of persons merely accused ofa felony is offensive to the presumption of innocence given to criminal defendants." Although the Green court's holding does not bolster the argument that classification of felons versus misdemeanants violates the rational relationship test under the Equal Protec­ tion Clause, its reasoning is not dispositive as to what another court will hold when faced with this argument. 282 This reasoning echoes the concerns of the Citizens' Crime Commission in 1940: "What difference does it make whether he has stolen $99 worth of goods or $101. In the first case he would be guilty only of·a misdemeanor, in the second case of a fel­ ony." Letter from the Citizens' Crime Commission to the Honorable Herbert Leh­ man, Governor, dated Mar. 16, 1940, Bill Jacket, L. 1940, ch. 202, at 2-3. The faulty logic exposed by the Commission seems even more so given the discretion that judges have at sentencing. The classification of a crime as a felony sets the maximum possible sentence at a year or more incarceration. Judges often elect to sentence offenders to much less than the maximum sentence and often elect punishments that do not in­ clude incarceration at all such as assignment to a rehabilitation program. 283 See infra notes 309-14 and accompanying text. 284 Smith v. Fussenich, 440 F. Supp. 1077, 1079-80 (D. Conn. 1977). 2010] CHALLENGING FELON JURY EXCLUSION 363

to promote the State's interest in eliminating corruption in cer­ tain designated occupations. The legislation fails to recognize the obvious differences in the fitness and character of those per­ sons with felony records. Felony crimes such as bigamy and in­ come tax evasion have virtually no relevance to an individual's performance as a private detective or security guard. In addi­ tion, the enactment makes an irrational distinction between those convicted of felonies and those convicted of misdemean­ ors. Hence, a person is eligible for licensure even though he was convicted of a crime (larceny, false entry, inciting to riot, and riot) which may demonstrate his lack of fitness merely because that crime is classified as a misdemeanor under the Connecticut code .... Moreover, the statute's across-the-board disqualifica­ tion fails to consider probable and realistic circumstances in a felon's life, including the likelihood of rehabilitation, age at the time of conviction, and other mitigating circumstances related to the nature of the crime and degree of participation.285 In Butts v. Nichols, 286 the court struck down a ban on city em­ ployment of any felon, reasoning that it was "totally irrational" that a person convicted of an irrelevant felony would lose his or her civil employment eligibility but a person convicted of a relevant misdemeanor would not. In Miller v. Carter, a statute that prohib­ ited some individuals with criminal convictions from obtaining chauffeur licenses but not others violated the Equal Protection Clause because "distinctions among those members of the class of ex-offenders are irrational."287 The relationship between a person's conviction history status in the abstract and the restriction of specific rights seems spurious when courts delve into individual challengers' specific convictions and the rights that have been denied them through blanket exclu­ sions. The U.S. District Court for the Western District of New York reversed the denial of an application to take the civil service exami­ nation because the plaintiff succeeded "in showing that there is sufficient doubt whether such a relationship exists between the standard of character needed for the job [he was testing for] and his disqualification from that position on the basis of his police record. "288 A California court of appeals reversed the denial of a real estate license for a five-year-old conviction for distribution of a controlled substance because "any finding that plaintiff's convic-

285 Id. at 1080. 286 Butts v. Nichols, 381 F. Supp. 573, 581-82 (S.D. Iowa 1974). 287 Miller v. Carter, 547 F.2d 1314, 1316 (7th Cir. 1977), affd, 434 U.S. 356 (1978). 288 Carr v. Thompson, 384 F. Supp. 544, 548 (W.D.N.Y. 1974). 364 NEW YORK CITY LAW REVIEW [Vol. 13:313

tion was substantially related to the qualifications, functions or du­ ties of a real estate salesman or that such conviction had rendered him unfit to engage in that profession" was absent.289 The same court reversed the revocation of a convicted sex offender's license to sell cars under a statute that gave discretion to the DMV to re­ voke such a license of a person convicted of a "crime of moral tur­ pitude" because the "conviction was of insufficient connection to the business of selling automobiles to warrant suspension or revo­ cation of a license."290 The Illinois Supreme Court reversed the rev­ ocation of a sex offender's driver's license pursuant to a statutory ban despite a "strong presumption of constitutionality" for the leg­ islative enactment because there was lack of an adequate nexus be­ tween denial of the license and government interest under Equal Protection rational-basis review. 291 All these cases are examples of courts striking collateral consequences of conviction for lack of ad­ equate rational relationship between the restriction and the gov­ ernment's interest. Such a relationship seems difficult to establish.292 Blanket exclusions based on felony-conviction histories are less likely to withstand rational-basis review than those that treat each individual on a case-by-case basis. 293 Blanket exclusions do withstand rational-basis review where they are tailored to correct

289 Brandt v. Fox, 153 Cal. Rptr. 683, 689 (Cal. Ct. App. 1979). 290 Brewerv. Dep't of Motor Vehicles, 155 Cal. Rptr. 643, 645 (Cal. Ct. App. 1979). 291 People v. Lindner, 535 N.E.2d 829, 833 (IJJ. 1989). 292 If the government interests are probity and having an unbiased jury, then a Jack of reasonable relationship should emerge if felony conviction history is the cause of exclusion from the jury pool. Unless the crime that the prospective juror has been convicted of actually implicates his or her truthfulness, the state will have difficulty establishing a reasonable relationship. Therefore, the exclusion might be struck down by a court even under rational basis review. See FED. R. Evrn. 609(a) (2) ("For the purpose of attacking the character for truthfulness of a witness, evidence that the witness was convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.") (emphasis ad­ ded). For all other evidence of past criminal conviction, where dishonesty or false statements were not part of the crime, the court must engage in individualized balanc­ ing to determine whether evidence of the witness's conviction should be admissible. See id. 293 See, e.g., Kindem v. City of Alameda, 502 F. Supp. ll08 (N.D. Cal. 1980) (striking down a blanket, citywide ban on public employment of ex-felons); see also Miller v. D.C. Bd. of Appeals & Review, 294 A.2d 365 (D.C. 1972) (striking down D.C. Board's denial of license to sell costume jewelry on public streets on basis of plaintiffs crimi­ nal history); Hilliard v. Ferguson, 30 F.3d 649, 652 (5th Cir. 1994) (upholding an employment policy, which required a case-by-case examination of the circumstances of each felon's conviction before hiring decisions were made, after an Equal Protec­ tion Clause challenge under rational basis scrutiny). 2010] CHALLENGING FELON JURY EXCLUSION 365 documented problems with criminality in certain arenas294 or where there is a clear link between the restricted right and the convic­ tion. 295 The Supreme Court upheld the absolute disqualification of felons from office in waterfront labor organizations where state and federal legislatures had recognized "a notoriously serious situa­ tion" which needed "drastic reform" and had found "impressive if mortifying evidence that the presence on the waterfront of ex-con­ victs was an important contributing factor to the corrupt waterfront situation."296 Courts have recognized a clear link between a history of felony convictions and employment, like, for example, employ­ ment as a police officer after conviction for crimes generally,297 as well as between an arson conviction and employment as a firefighter. 298 As a blanket ban on inclusion in the jury pool, New York's felon jury exclusion law is similar to other blanket bans struck down by the courts.299 New York's felon jury exclusion law provides no allowance for a case-by-case examination.300 The exclusion dis­ regards the fact that the voir dire process is particularly designed to examine potential jurors on a case-by-case basis.301 The exclusion is not tailored to correct documented problems with criminality in the jury pool. No evidence of corruption caused by the presence of individuals with felony convictions in jury pools has been suggested anywhere. There is no clear link between a felony-conviction his­ tory in the abstract and negative effects from inclusion in the jury pool of those with such histories. There might be an attenuated

294 See De Veau v. Braisted, 363 U.S. 144, 147 (1960). 295 See, e.g., FW /PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988) (uphold­ ing two- and five-year exclusions against people convicted of sex or obscenity crimes from sex-related businesses); Hill v. City of Chester, No. CIV. A. 92-4357, 1994 WL 463405 (E.D. Pa. Aug. 26, 1994) (upholding city council's elimination of mayor's ad­ ministrative assistant who was a rehabilitated two-time ex-

302 See supra notes 236-42 and accompanying text. 303 Romer v. Evans, 517 U.S. 620, 632 (1996); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 432 (1985); see also U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 304 Cleburne, 473 U.S. at 432; see also id. at 473 (Marshall,]., concurring in judgment in part and dissenting in part). 305 Id. at 448 (majority opinion). 306 Id. at 448-49. 307 Id. at 473 (Marshall,]., concurring in judgment in part and dissenting in part). 308 Id. at 448-49 (majority opinion) ("[M]ere negative attitudes, or fear, unsubstan- 2010] CHALLENGING FELON JURY EXCLUSION 367

inquiry when classifications by felony-conviction history are chal­ lenged. 309 Restrictions based on felony-conviction history are al­ ready frequently struck down by the courts as violations of equal protection under rational-basis review, despite the supposed defer­ ence of this standard.310 Where restrictions are not struck down, courts focus a lot of attention on the importance of the particular government interest at stake, again in the face of the supposed def­ erence of rational-basis review. 311 The animus behind the exclusion and the searching treatment already afforded to classification by felony-conviction history by courts nationwide suggest that at least the minimal standard of re-

tiated by factors which are properly cognizable in a [given] proceeding, are not per­ missible bases for treating [one group of individuals] differently from [another group of individuals]."). 309 See, e.g., Lewis v. Ala. Dep't Pub. Safety, 831 F. Supp. 824 (M.D. Ala. 1993) (strik­ ing blanket exclusion of people convicted of a misdemeanor of force, violence, or moral turpitude from the state's list of towing contractors as over- and under-inclusive under rational basis review) (citing U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972); Reed v. Reed, 404 U.S. 71 (1971)). Another indication that a less deferential inquiry is being done on chal­ lenges to felony-conviction classifications is found in the Alabama court's citations to Moreno and Weber. These are a signal that it is analyzing the exclusion of felons under scrutiny reserved for classifications based on animus or other illegitimate government interests. In Moreno, the Court struck down the denial of food stamp benefits for indi­ viduals living in households that included non-family members because the regula­ tion was explicitly targeted at "hippie communes" and explained that "a bare congressional desire to harm a politically unpopular group cannot constitute a /,egi.ti­ mate governmental interest." 413 U.S. at 534 (emphasis added). In Weber, the Court struck down the denial of workers' compensation benefits for illegitimate children of the deceased under rational basis, acknowledged " [ t] he burdens of illegitimacy," and stated that "[t]he status of illegitimacy has expressed through the ages society's con­ demnation of irresponsible liaisons beyond the bonds of marriage." 406 U.S. at 171, 175. In Reed, decided prior to the Court's assignment of a heightened degree of scru­ tiny to classifications based on gender, the Court struck down a mandatory preference for fathers over mothers as administrators of a deceased child's estate under rational basis, stating that "[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the mer­ its, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex." 404 U.S. at 76-77. Note that even Romer v. Evans, 517 U.S. 620 (1996), which is often cited as applying "rational basis with bite" scrutiny to a legislative act negatively targeting non-heterosexuals, was not so clear in its use of precedent. Romer did not cite these or any other prior rational basis-with-bite cases. 310 See, e.g., Smith v. Fussenich, 440 F. Supp. 1077, 1079-80 (D. Conn. 1977). 311 See, e.g., M & Z Cab Corp. v.. City of Chicago, 18 F. Supp. 2d 941, 947 (N.D. Ill. 1998) (upholding revocation of taxi medallions based on felony conviction "to pro­ tect those who rely on the taxicab industry from the dangers associated with convicted felons."). 368 NEW YORK CITY LAW RF,VJEW [Vol. 13:313 view used by the Court in Cleburne should be applied to felon jury exclusion-"rational basis with bite"-level scrutiny.312 Under this standard of judicial oversight, "simply discerning any regulatory reason, however plausible, will not serve to satisfy the rational-basis requirement. The relevant inquiry should more properly focus upon whether the means utilized to carry out a regulatory purpose substantially furthers that end."313 This standard is an elevated level of scrutiny through which courts invalidate state actions that ap­ pear "to rest on an irrational prejudice,"314 or are drawn "for the purpose of disadvantaging the group burdened by the law."315 Laws that discriminate against those with felony-conviction his­ tories may fall into one or the other impermissible category or straddle both. They are based on fears of threatening probity and bringing bias to the courtroom. They are also part of a constella­ tion of collateral consequences of conviction that may be imposed as a lifelong punishment for once having strayed from the bounda­ ries for behavior defined by law. 316 Felon jury exclusion, given the lack of empirical evidence for the oft-proffered justifications, cer­ tainly seems to rest on an irrational prejudice, even if it does not disadvantage those disqualified from jury service.317 This heightened scrutiny is sufficient to support a court's hold­ ing that excluding all those with felony-conviction histories from the jury pool is not reasonably related to a legitimate state interest. Like the cases cited above, a court will likely recognize that probity and lack of bias in the jury are legitimate interests but struggle with

312 See Miriam]. Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework for Evaluating Occupational Restrictions Affecting Peofle with Criminal Records, 7 J.L. Soc'y 18, 66-69 (2005) (discussing the similarities between treaunent of people with disabilities (as discussed by the Court in Cleburne), homosexuals (as discussed by the Court in Romer), and people with criminal history records). 313 Lewis v. Ala. Dep't of Pub. Safety, 831 F. Supp. 824, 826 (M.D. Ala. 1993). 314 See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 450 (1985). 315 Romerv. Evans, 517 U.S. 620, 633 (1996). 316 Internal ExUe, supra note 17, at 154. 317 It is important to acknowledge that some individuals are more than happy to be excused or even permanently disqualified from jury service, never again receiving a summons or actually showing up for jury duty, although this individual sentiment is at cross-purposes with the development of the civic life of the nation. See, e.g., Ludmilla Lelis, Many Who Get jury Duty Call Don't Always Heed It, ORLANDO SENTINEL, Apr. 20, 2009, at Bl ("Trial by jury is a civil right guaranteed by the U.S. Constitution, making jury service a civic duty."); see also Nathan Koppel, Excuse Me, Your Honor, the Dog Ate My Civic Duty, WALL ST.]., Sept. 18, 2008, at A22 (stating, "a whopping 32% of people [polled] said that when they were called for jury duty, they didn't bother to attend," and that "[t]hose who do grace the courthouse steps still often wiggle out of their civic duty."). 2010] CHALLENGING FELON JURY EXCLUSION 369 the reasonable relationship between these interests and a blanket felon jury exclusion.

3. Heightened Scrutiny for "Felons" The third paragraph of footnote four in United States v. Carotene Products Co. proposed that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a corre­ spondingly more searching judicial inquiry."318 The Court has held that this footnote means that when applying Equal Protection anal­ ysis, strict scrutiny of a legislative classification is required when the statute operates to the particular disadvantage of a suspect class. 319 "Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each per­ son is to be judged individually and is entitled to equal justice under the law."320 A suspect class is one with a preponderance of the following characteristics: a history of discrimination against class members;321 political powerlessness of the class;322 immutability of the charac­ teristic for individual class members;323 irrelevance of the charac­ teristic to legitimate state objectives;324 discreteness;325 and coherence of the class. The Court has also identified some classes that are "quasi-suspect" and therefore warrant scrutiny at a level between rational basis and the strict scrutiny applied to suspect classes. 326 It is settled that all classifications established by the states based on race and ancestry, as well as classifications by national origin, are suspect for Equal Protection Clause purposes. 327 The

318 United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938). 319 See, e.g., Regents of University of California v. Bakke, 438 U.S. 265, 290-91 (1978); McCleskey v. Kemp, 481 U.S. 279, 346 (1987) ("[R]acial discrimination is fundamentally at odds with our constitutional guarantee of equal protection."). 320 Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). 321 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. l, 28 (1973). 322 Id. 323 Plyler, 457 U.S. at 220. 324 Id. at 217-18. 325 Id. at 230. 326 See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 437-38 (1985). 327 Johnson v. California, 543 U.S. 499, 505-07 (2005) (illustrating that racial classi­ fications receive strict scrutiny even in penological context); Hirabayashi v. United States, 320 U.S. 81, 100 (1943) ("Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality."). 370 NEW YORK CITY LAW REVIEW [Vol. 13:313

Court has also created an intermediate tier of scrutiny for quasi­ suspect classes that have some, but not all, of the characteristics above; classifications based on gender and legitimacy fall into the intermediate tier.328 The visibility of a characteristic can play a role in determining what specific level of scrutiny applies because where the characteristic does not "carry an obvious badge," the likelihood of discrimination decreases.329 The Court has not held that ex-felons constitute a suspect or quasi-suspect class under equal protection doctrine but its silence does not preclude a lower court from using an elevated level of scrutiny to examine a classification by conviction status. Richardson v. Ramirez,330 a challenge to disenfranchisement of those with con­ viction histories, is the Supreme Court case courts cite when they apply rational basis to legislative acts that classify individuals by fel­ ony-conviction-history status.331 But Richardson is not a bar to hold­ ing that a classification by felon status is at least quasi-suspect. 332 Richardson's holding was based on the conclusion that disen­ franchisement of individuals with conviction histories was constitu­ tional under Section 2 of the Fourteenth Amendment and did not conflict with Equal Protection doctrine.333 Section 2 creates a rep­ resentational penalty for states that disenfranchise otherwise eligi­ ble voters by reducing their representation in the House of Representatives by the proportion of excluded to non-excluded voters but explicitly makes an exception for states' exclusion of persons convicted of "rebellion, or other crime."334 In Richardson, the Court simply did not analyze whether those with conviction his­ tories had the required characteristics to warrant heightened scru­ tiny as a class. Whether or not they cite to Richardson, courts give little analy­ sis of the appropriate level of scrutiny to use in deciding whether to uphold or strike down legislative acts that affect those with convic­ tion histories. In Miller v. Carter, the district court held that a stat­ ute that prohibited some individuals with criminal convictions

328 See United States v. Virginia, 518 U.S. 515 (1996) (classifications based on gen­ der); Clark v. Jeter, 486 U.S. 456, 461 (1988) (classifications based on illegitimacy). 329 See Mathews v. Lucas, 427 U.S. 495, 506 (1976) (holding that because a child's legitimacy is not immediately apparent, only intermediate scrutiny is required for laws that discriminate based on one's parents' marital status). 330 Richardson v. Ramirez, 418 U.S. 24 (1974). 331 See, e.g., United States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979). 332 See Richardson, 418 U.S. at 78. For a detailed discussion of felony-conviction his­ tory as a class for Equal Protection purposes, see Aukerman, supra note 312, at 52-69. 333 Richardson, 418 U.S. at 54. 334 U.S. CoNsT. amend. XN, § 2. 2010] CHALLENGING FELON JURY EXCLUSION 371

from obtaining chauffeur licenses but not others violated the Equal Protection Clause, but the court did not address whether a level of scrutiny higher than rational-basis review was appropriate.335 In his concurring opinion, Justice Campbell noted that people with fel­ ony-conviction histories have the attributes of a suspect class but decided that, in light of the Supreme Court's reluctance to expand the number of suspect classes, they did not constitute one.336 Other courts have upheld and struck down statutes that classify by felony-conviction-history status through a rational-basis review ei­ ther with no analysis of whether such a classification warrants ele­ vated scrutiny or with a conclusory statement in place of analysis.337 This lack of analysis is the norm in cases where the federal jury exclusion law was challenged under Equal Protection.338

335 Millerv. Carter, 547 F.2d 1314, 1316 (7th Cir. 1977), affd, 434 U.S. 356 (1978) (per curiam). 336 Id. at 1321 (Campbell,]., concurring). 337 See, e.g., Furst v. N.Y. City Transit Auth., 631 F. Supp. 1331, 1336-37 (E.D.N.Y. 1986) ("[E]x-felons do not constitute a suspect class"); Baer v. City of Wauwatosa, 716 F.2d 1117, 1125 (7th Cir. 1983) ("[F]elons are not yet a protected class under the Fourteenth Amendment"); Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir. 1970) ("[A] classification based on criminal record is not a suspect classification"); Kindem v. City of Alameda, 502 F. Supp. 1108, 1111 (N.D. Cal. 1980) ("[E]x-felons are not thought to constitute a "suspect class"); Hill v. Gill, 703 F. Supp. 1034, 1037 (D.R.I. 1989) ("it is clear that the class in question (i.e. persons convicted offelonies) is not a protected one"); Darks v. City of Cincinnati, 745 F.2d 1040, 1042 (6th Cir. 1984) ("The parties agree that the constitutional validity of this classification must be mea­ sured by the rational basis test."). Courts also apply rational basis scrutiny to classifica­ tions by felony-conviction history in the penological context without analysis. In Champion v. Artuz, the Second Circuit Court of Appeals applied rational basis review in affirming the denial of a conjugal visit by a person with a conviction history. 76 F.3d 483, 486 (2d Cir. 1996). Without discussion or citation, the Court of Appeals stated that her status did not place her in a suspect class. Id. It decided the case on the question of rationality and gave deference to the penological context. Id. One year before the Richardson decision, the United States District Court for the Southern Dis­ trict of New York also applied rational basis in the penological context when it held that differing standards for computation of good-behavior time for felons and misde­ meanants were constitutional. Jeffery v. Malcolm, 353 F. Supp. 395, 398 (S.D.N.Y. 1973). That court reasoned that more relaxed standards for felons, who are serving longer sentences, were reasonable because they provide incentive for prisoners' coop­ eration with prison authorities for those who will be incarcerated for the longest pe­ riod of time. Id. ("[T]he [s]tate may well have determined that the incentive need be greater where the sentence is longer."). Cases decided in the penological context are not instructive of the level of analysis required in any other context because state actions in the penological context generally receive greater deference from the courts. See Turner v. Safley, 482 U.S. 78, 89 (1987). 338 See, e.g., United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) ("[E]xcluding convicted felons from jury service does not violate the constitutional guarantee of equal protection. The government has a legitimate interest in protecting the probity of juries. Excluding convicted felons from jury service is rationally related to achieving that purpose."); United States v. Greene, 995 F.2d 793, 795 (8th Cir. 372 NEW YORK CITY LAW REVIEW [Vol. 13:313

Individuals with conviction histories are not likely to meet the standard set by Carolene Products and its progeny for being a suspect class, but enough of the attributes of "suspectness" may be present to add felony-conviction history to the short list of classifications that are treated as quasi-suspect and subject to intermediate judi­ cial scrutiny.339 As discussed, there is a history of discrimination against those with felony-conviction histories; felon jury exclusion and other regulations that restrict the rights of those with convic­ tion histories can be seen as part of this pattern and history.340 Sig­ nificant societal disabilities derive solely from the fact that a person has a criminal record.341 Those with .conviction histories are politi­ cally powerless-in many jurisdictions they cannot vote. 342 A fel­ ony-conviction history, once obtained, is an immutable characteristic in that it cannot be changed, as few states provide a mechanism for expungement.343 Felon jury exclusion may reflect a tendency to continue punishing individuals after they have com­ pleted their court-imposed sentences and be further evidence of continued discrimination.344 Individuals with felony-conviction his­ tories make up a discrete and coherent class. In the information age, a felony-conviction history is a highly visible characteristic, sug­ gesting that a higher level of scrutiny is needed because discrimina­ tion based on the characteristic is more likely.

1993) ("[E]xclusion from juror eligibility of persons charged with a felony is ration­ ally related to the legitimate governmental purpose of guaranteeing the probity of jurors"); United States v. Foxworth, 599 F.2d 1, 4 (1979) (finding that the federal exclusion "is rationally based, and hence is not unconstitutional"). 339 For a thorough discussion of the Carotene factors as they relate to those with conviction histories, see Aukerman, supra note 312, at 52-69; see generally Ben Geiger, The Case for Treating Ex-Offenders as a Suspect Class, 94 CAL. L. REv. 1191 (2006). 340 See also Internal Exile, supra note 17. 341 Miller v. Carter, 547 F.2d 1314, 1321 (7th Cir. 1977) (Campbell,J., concurring). 342 See OFFICE OF THE PARDON ArroRNEY, U.S. DEP'T OF JusTICE, CML DISABILITIES OF CONVICTED FELONS: A STATE-BY-STATE SURVEY, app. B (Oct. 1996), available at www.ncjrs.gov/pdffilesl/pr/195110.pdf. 343 A felony conviction is immutable only in that it can usually not be altered, but not in the sense that it is an "accident of birth." See Frontiero v. Richardson, 411 U.S. 677, 686 (1973). This formulation of immutability is important to the analysis of sus­ pectness. See Plyler v. Doe, 457 U.S. 202, 218 n.14 (1982) ("Legislation imposing spe­ cial disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of 'class or caste' treatment that the Fourteenth Amend­ ment was designed to abolish."). One could argue that policing practices and the proclivities of the criminal justice system have turned the fact of living in a "high­ crime" urban area into an "accident of birth." A successful argument would weigh in favor of felony-conviction history being a suspect classification. One weakness in this argument is the reasoning in Plyler, dismissing undocumented persons as a suspect class because "entry into the class is itself a crime." Id. at 219 n.19 (referring to cross­ ing the border without authorization). 344 Demleitner, supra note 21. 2010] CHALLENGING FELON JURY EXCLUSION 373

There is no larger purpose served by maintaining a low level of judicial scrutiny for legislative acts that affect those with conviction histories as a group. In Cleburne, the Court reasoned that the lati­ tude legislators require to create good policy for treating "the large and amorphous class" of the mentally retarded, which is a "a diffi­ cult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-in­ formed opinions of the judiciary," prevented the classification of the mentally retarded as a quasi-suspect class.345 Such a classifica­ tion would trigger heightened scrutiny and interfere with the diffi­ cult work of these professionals.346 Upon completing a sentence, an individual with a conviction history need not be "provided for" in the same way that an individual with a "mental retardation" might.347 No similar deference to the work of professionals needs to be given when the group at issue is individuals who have served their sentences and become reintegrated into society. By design, such individuals should be treated as regular citizens once their punishments are complete. In addition, judges, while not generally qualified professionals in the mental health field, are undoubtedly more qualified as a group to answer difficult questions in the field of criminal justice. If a court concludes that individuals with felony-conviction his­ tories are a quasi-suspect class, New York's felon jury exclusion stat­ ute will need to meet an intermediate standard of review-the state must show that the law is substantially related to a sufficiently im­ portant government interest.348 While jury-pool purity is arguably an important interest, felon exclusion is not likely substantially re­ lated to this interest in light of other tools already available to in­ sure an impartial jury, such as voir dire, challenges for cause, and peremptory challenges available to both sides.

4. Strict Scrutiny for a Fundamental Right Where legislative classifications of individuals into groups lead to the infringement of a group's fundamental rights, the courts apply strict scrutiny to determine whether the legislative act is con­ stitutional under the Equal Protection Clause.349 If a court deter-

345 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-43 (1985). 3 46 See id. 347 See id. at 442 ("[I]t is undeniable ... that those who are mentally retarded have a reduced ability to cope with and function in the everyday world .... [Some of them] must be constantly cared for."). 348 Id. at 441. 349 See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). 374 NEW YORK CITY IA W REVIEW [Vol. 13:313 mines that being included in a jury pool is a fundamental right, a law that infringes on that right for those classified as having been convicted of a felony but not for others will be subject to strict scru­ tiny.350 A court is unlikely to hold the law constitutional under this standard because strict-scrutiny review is difficult to satisfy. If the court determines that inclusion in the jury pool is not a fundamen­ tal right, the law will be subject to rational-basis review and is likely to stand because the standard is so easy to satisfy. It is possible, though not nearly certain, that a court will conclude that the right to have a chance to serve on a jury is fundamental. 351 While an individual's right to serve on a particular jury is lim­ ited because he or she can be struck from serving on a jury once included in the venire, having a fair chance at jury service through inclusion in the jury pool approaches being a fundamental right whose infringement must trigger the most exacting scrutiny. The Court has called jury service "a right, a privilege, or a duty,"352 one of the "basic rights of citizenship,"353 a significant op­ portunity to participate in civic life,"354 and an implied constitu­ tional right derived from "a defendant's Sixth Amendment right to a jury drawn from a fair cross section of the community."355 It has not yet directly addressed the issue of whether the right to be in­ cluded in a jury pool is fundamental. Fundamental rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments include explicit rights pre­ sent in the text of the Constitution and implicit rights not present in the text but nonetheless fundamental.356 The Supreme Court has held that "fundamental rights" include such rights implicitly protected by the Constitution as the right to privacy357 and the

350 Binnall suggests that under Equal Protection analysis, heightened scrutiny will apply if the court concludes that it classifies and infringes on a right that is "impor­ tant." See Binnall, supra note 54, at 20-21 (citing LAURENCE H. TRIBE, AMERICAN CON­ STITUTIONAL LAw §§ 16-34 (2d ed. 1988)). 351 The Supreme Court is generally reluctant to find the existence of new funda­ mental rights, "indicat[ing] that it must 'exercise the utmost care whenever [it is] asked to break new ground' to establish a fundamental right not previously recog­ nized." Anna K. Schall, The United States Military's "Don't Ask, Don't Tell" Policy: The Aftermath of Lawrence, 19 KAN.J.L. & PuB. PoL'Y 341, 352 (2010) (citing Lofton v. Sec'y of the Dep't of Children and Family Servs., 358 F.3d 804, 816 (11th Cir. 2004) (quot­ ing Washington v. Glucksberg, 521 U.S. 702, 720 (1997))). 352 Carter v. Jury Comm'n of Greene Cnty., 396 U.S. 320, 330 (1970). 353 Lockhart v. McCree, 476 U.S. 162, 176 (1986). 354 Powers v. Ohio, 499 U.S. 400, 409 (1991). 355 Taylor v. Louisiana, 419 U.S. 522, 534 (1975). 356 See U.S. CONST. amend. V, cl. 3; see also id. amend. XIV, § 1, cl. 3. 357 See Griswold v. Connecticut, 381 U.S. 479, 483 (1965). 2010] CHALLENGING FELON JURY EXCLUSION 375 right to travel interstate.358 The right to vote has.been described as fundamental.359 To determine whether an implicit right is funda­ mental, a court uses the Glucksberg.Palko standard: it looks to the history and traditions of the nation to determine if the asserted right is objectively "so rooted in the traditions and conscience of our people as to.be ranked as fundamental,"360 and "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed."361 The U.S. District Court for the Eastern District of Wisconsin is the only court that has addressed the question of whether the right to an opportunity to be a juror is fundamental under Glucksberg­ Palko.362 That court found historical support for the existence of juries but not for an individual's right to have the opportunity to serve.363 It attributed its reluctance to find jury service as a funda­ mental right to the Supreme Court's warning in Glucksberg. [W]e have always been reluctant to expand the concept of [fun­ damental rights] because guideposts for responsible decision­ making in this unchartered area are scarce and open-ended. By extending constitutional protection to an asserted right or lib­ erty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the [Fifth Amendment] be subtly transformed into the policy preferences of the members of this Court. 364 The caution expressed by the Glucksberg Court may be a diffi­ cult bar to overcome, but courts should bear in mind that the Con­ stitution explicitly references juries,365 whereas the right in Glucksberg-the right to physician-assisted suicide-was located only in the "penumbra" of implicit rights flowing from the Bill of Rights.366

358 See Shapiro v. Thompson, 394 U.S. 618, 629-30 (1969). 359 See Reynolds v. Sims, 377 U.S. 533, 555 (1964) ("The right to vote freely for the candidate of one's choice is of the essence of democratic society .... "); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966); see also Karlan, supra note 17, at 1152. 360 Washington v. Glucksberg, 521 U.S. 702, 720 -21 (1997) (quoting Palko v. Con- necticut, 302 U.S. 319, 325-26 (1937)). 361 Id. at 721. 362 See United States v. Conant, 116 F. Supp. 2d 1015, 1022 (E.D. Wis. 2000). 363 Id. 364 Id. (internal quotations omitted). 365 U.S. CONST. art. III, § 2; id. amends. VI, VII. 366 See Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997) (outlining the breadth of guarantees provided and liberties protected by the Due Process Clause); see also Griswold v. Connecticut, 381 U.S. 479, 484 (1965) ("[S]pecific guarantees in 376 NEW YORK CITY LAW REVIEW [Vol. 13:313

A fundamental right need not be an absolute right to warrant strict scrutiny when it is limited by the actions of a legislature.367 Despite the fact that, in Carter, the Court explicitly gave the states the right to prescribe qualifications for serving on a jury that elimi­ nate individuals from the pool, 368 and despite a long history of ju­ ror qualifications that excluded residents of certain geographical areas,369 an individual's right to be in the jury pool may nonethe­ less be "fundamental." The fundamental rights to traveling across state lines,370 voting,371 and privacy372 all give way to regulation that serves compelling government interests. In light of the importance of juries to the American justice system, it may be possible-espe­ cially given empirical evidence of the effect on the public's percep­ tion of an apparently non-inclusive system's fairness373-to convince a court that the requirements of ordered liberty and the mandates of history374 must lead to the conclusion that inclusion in a jury pool is a fundamental right of citizens in America's democracy. If a court concludes that the right to be included in a jury pool is fundamental, it will apply strict scrutiny when confronted with an Equal Protection challenge to New York's felon jury exclusion law to determine whether it is constitutional.375 Felon jury exclusion the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."). 367 See, e.g., Roe v. Wade, 410 U.S. 113, 154 (1973) ("The privacy right ... cannot be said to be absolute."). 368 "The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. 'Our duty to protect the fed­ eral constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty."' Carter v. Jury Comm'n of Greene Cnty., 396 U.S. 320, 332-33 (1970) (internal citations omitted). 369 See United States v. Conant, 116 F. Supp. 2d 1015, 1022 (E.D. Wis. 2000). 370 See Shapiro v. Thompson, 394 U.S. 618, 634-38 (1969) (discussing residence requirement for welfare-benefit eligibility, implicating right to travel across state lines). 371 See Richardson v. Ramirez, 418 U.S. 24, 41-56 (1974) (discussing restrictions on felons' right to vote). 372 See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (discussing restriction on contraceptive use in regards to right of privacy). 373 See supra text accompanying note 47. 374 See supra notes 62-63 and accompanying text. 375 See Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REv. 793, 801, 803 (2006) (stating that the Supreme Court applies strict scrutiny to cases involving Equal Protection claims based on violations of fundamental rights). 2010] CHALLENGING FELON JURY EXCLUSION 377

facially classifies individuals based on whether or not they have fel­ ony-conviction histories. The "suspect," "quasi-suspect," or "non­ suspect" nature of this classification is not relevant to an Equal Pro­ tection analysis where a fundamental right is limited for individuals in one group but not those in another.376 The state will need to show that the law is narrowly tailored to a compelling government in­ terest, a higher standard than the "significant" interest required by Duren.311 The probity and bias arguments usually presented in sup­ port of contested jury exclusions are not likely to withstand such scrutiny. Even if they do, the blanket exclusion will certainly fail the narrow tailoring requirement. 378 If the court concludes that the right to be included in the jury pool is not fundamental, New York's jury exclusion law will need to withstand a much more relaxed level of scrutiny: the state will need to show that it is reasonably related to a legitimate government in­ terest.379 Preserving probity and preventing bias in juries are cer­ tainly legitimate government interests.380 The result will depend on whether the court is convinced that excluding all felons from jury pools is reasonably related to that interest. The irrationality of clas­ sifying felons versus misdemeanants suggests that it is not.

5. Disparate Racial Impact in Jury Selection Racial classifications are subject to strict scrutiny under Four­ teenth Amendment Equal Protection doctrine. Felon jury exclu­ sion has a disproportionate impact by race and is likely to be treated as a racial classification by a court. Equal protection applies with force to protect the incidents of citizenship, of which jury ser­ vice is one.381 While in most other contexts a challenger would

376 See Leslie Friedman Goldstein, Between the Tiers: The New[ est] Equal Protection and Bush v. Gore, 4 U. PA. J. CONST. L. 372, 373, 374 (2002); see also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Reynolds v. Sims, 377 U.S. 533, 562 (1964). 377 See Duren v. Missouri, 439 U.S. 357, 367-68 (1979) (requiring a significant state interest, not merely rational grounds, to justify infringement of the "constitutional right to a jury drawn from a fair cross section of the community"); see generally R. Randall Kelso, Standards of Review Under the Equal Protection Clause and Related Constitu­ tional Doctrines Protecting Individual Rights: The "Base Plus Six" Model and Modern Supreme Court Practice, 4 U. PA.]. CoNsT. L 225 (2002). 378 See supra notes 245-53 and accompanying text. 379 See supra notes 253-62 and accompanying text. 380 See supra notes 226-69. 381 See, e.g., Kramerv. Union Free Sch. Dist. No. 15, 395 U.S. 621, 622 (1969) (inval­ idating property-ownership requirement to vote in school district elections); Harper v. Va. Bd. of Elections, 383 U.S. 663, 668 (1966) (invalidating poll tax); Castaneda v. Partida, 430 U.S. 482, 494 (1977) (applying equal protection to grand jury service). For a history of Equal Protection doctrine in jury selection cases, see Swift, supra note 378 NEW YORK CITY LAW REVIEW [Vol. 13:313 have to show intent in addition to impact in order to have the ex­ clusion treated as a racial classification under the Equal Protection Clause,382 discrimination in jury selection is subject to a more re­ laxed intent requirement that can be met by a presumption based on the magnitude of the disparity. In Washington v. Davis, the Su­ preme Court explicitly created an exception to the discriminatory intent requirement for "cases dealing with racial discrimination in the selection of juries" and explained that a showing of "racially non-neutral selection procedures" would be sufficient to make out a rebuttable prima facie case of racial discrimination.383 A year after Davis, the Supreme Court, in Castaneda v. Partida, ·defended relaxing the intent requirement in jury selection cases based on the special nature of jury discrimination. In Castaneda, a habeas corpus petitioner alleged that his indictment by a grand jury on which Mexican Americans were underrepresented violated the Fourteenth Amendment.384 The Castaneda Court reaffirmed that substantial underrepresentation of a recognizable group as a result of a selection mechanism is sufficient to create a presump­ tion of discriminatory intent and establish a prima facie case of discriminatory purpose. 385 The Court explained the rationale be­ hind the relaxed test for intent in the jury context: The idea behind the rule of exclusion is not at all complex. If a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-re­ lated factors entered into the selection process.386 To make out a prima facie case using this relaxed test, a defen-

272. The Equal Protection Clause also directly protects criminal defendants from be­ ing indicted by grand juries or tried by petit juries that exclude members of their own race. See supra note 123. No precedent suggests that litigants do not have the same right in a civil context. 382 Washington v. Davis, 426 U.S. 229, 239-41 (1976). Showing that felon jury ex­ clusion intentionally classifies by race will be very difficult. The legislative history of the exclusion does not evidence any such intentional discrimination. New York's criminalization of racial discrimination in the jury-selection context directly contra­ dicts any claim of intentional racial discrimination by New York's legislature. See supra notes 73-74 and accompanying text. Contrast this history with the Alabama constitu­ tion's criminal disenfranchising provisions which were struck down by the Court in 1985 as a violation of Equal Protection because their original enactment was moti­ vated by a desire to discriminate against African Americans on account of race and the provisions continued to have the intended discriminatory impact until they were revoked. See Hunter v. Underwood, 471 U.S. 222 (1985). 383 Davis, 426 U.S. at 241. 384 Castaneda v. Partida, 430 U.S. 482, 495-96 (1977). 385 See id. at 494, 495. 386 Id. at 494 n.13. 2010] CHALLENGING FELON JURY EXCLUSION 379 dant must meet the "rule of exclusion." The defendant must show that a substantial underrepresentation over a significant period of time of a "recognizable, distinct class, singled out for different treatment under the laws, as written or as applied," is the result of the procedure employed to construct the jury pool.387 "[A] selec­ tion procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing,"388 but is not necessary to meet the intent requirement of a claim of racial discrimination in the jury pool.389 Substantial underrepresentation for a significant period of time is established statistically.390 "The goal of such an inquiry is to determine if chance alone could account for a meager representa­ tion of minorities."391 Where the racial disparity created by the stat­ utory exclusion of all those charged with felonies was not "gross"- 4.1 % of the population was African American while 3.996% of the jury pool was-the Seventh Circuit declined to apply heightened scrutiny. 392 But where the disparity is pronounced, the substantial under­ representation requirement is met. In Castaneda, where census sta­ tistics showed that the population of the county was 79.1 % Mexican-American, but that, over art eleven-year period, only 39% of persons summoned for grand jury service were Mexican-Ameri­ can, the substantial underrepresentation prong of the presumptive intent test was met.393 In Alston, the Second Circuit found substan­ tial underrepresentation where the statistically expected number of

387 See id. at 494. 388 Id. 389 See, e.g., Alston v. Manson, 791 F.2d 255, 257 (2d Cir. 1986) (applying Castaneda presumptive intent to state jury-selection scheme defined by statutes that assigned greater representation to rural and suburban areas than urban areas with unintended effect of decreasing representation of African Americans injury pool; no discretion­ ary mechanism was involved in jury selection); but see Swift, supra note 272, at 315 (describing the discriminatory intent requirement as "an exercise of discretion by a government officer coupled with a disparate impact on a disadvantaged group"). Pro­ fessor Swift articulates the requirement in this narrow way but then construes the necessary exercise of discretion broadly, stating that, in Davis, the official who created the test which ultimately had racially differentiated results exercised "discretion." Id. 390 See generally Peter A. Detre, A Proposal for Measuring Underrepresentation in the Com­ position of the jury Whee~ 103 YALE LJ. 1913 (1994) (comparing requirements articu­ lated in the case law under Equal Protection and fair-cross-section analyses, discussing the flaws in the generally accepted "absolute disparity" analysis, and proposing a new measure that more accurately captures fair-cross-section concerns for use in those challenges). 391 Alston, 791 F.2d at 258. 392 United States v. Barry, 71 F.3d 1269, 1272 (7th Cir. 1995). 393 Castaneda v. Partida, 430 U.S. 482, 495 (1977). 380 NEW YORK CITY LAW REVIEW [Vol. 13:313

African Americans in the array was 501 but actual number in light of the geographic quota system was 368 (5.96% versus 4.38%).394 In Guzman, the fact that the probability of being in the grand jury pool was reduced for Hispanics by 75% was sufficient.395 "[T]he probability that the disparity had occurred by chance in a random method of jury selection was less than one in one thousand."396 Prior to the clear elucidation of the presumptive intent rule, the Court in Carter affirmed declaratory relief in the form of a require­ ment that the jury commission create a new list of potential jurors consistent with constitutional principles when excluded jurors challenged a jury selection mechanism that resulted in only 4% of the African American male population being included in the pool, in contrast with 50% of the white males.397 Substantial under­ representation of African Americans and Hispanics in New York jury pools will be easy to show statistically. 398 Hispanics and African Americans are cognizable groups for Equal Protection purposes. In Guzman, the New York Court of Ap­ peals recognized that Hispanics are a cognizable group in the ab­ stract for Equal Protection purposes, and then turned to expert testimony that they were actually a cognizable group in the com­ munity in question.399 The same inquiry would need to be con­ ducted no matter what group's exclusion was challenged. It will not be difficult to establish that Hispanics or African-Americans are a cognizable group in many New York communities. The challenger will then need to show that the disparity actu­ ally results from the challenged jury construction mechanism. 400 The challenged mechanism need not have a discretionary ele­ ment. 401 In Alston, it was sufficient that a high proportion of Afri-

394 Alston, 791 F.2d at 258. 395 People v. Guzman, 457 N.E.2d 1143, 1149 (N.Y. 1983). 396 People v. Guzman, 454 N.Y.S. 852, 859 (App. Div. 1982) (discussing testimony of expert statistician). 397 Carterv.Jury Comm'n, 396 U.S. 320, 327, 339-40; see alsoWhitus v. Georgia, 385 U.S. 545, 552 (1967) (African Americans were 27.1 % of tax payers but only 9.1 % of juryvenire); Tumerv. Fouche, 396 U.S. 346, 359 (1970) (60% of general population, 37% of grand jury list); Sims v. Georgia, 389 U.S. 404, 407 (1967) (24.4% of tax list, 4. 7% of grand jury list). 398 Although such data has not yet been compiled, representation of African Ameri­ cans and Hispanics in New York jury pools will likely be a reflection of the dispropor­ tionate engagement of African Americans and Hispanics with the criminal justice system. See supra text accompanying notes 32-36. 399 People v. Guzman, 45 N.Y.S.2d 852, 857-58 (App. Div. 1982). 400 See supra note 389 and accompanying text. 401 Alston v. Manson, 791 F.2d 255, 257 (2d Cir. 1986), cert. denied, 479 U.S. 1084 (1987). 2010] CHALLENGING FELON JURY EXCLUSION 381 can Americans lived in urban areas in the state and that the quota system, which gave less representation to urban areas, could not help but partially exclude them.402 New York's felonjury exclusion statute is analogous to the statutory scheme in Alston, since it too has the effect of partially excluding African Americans and Hispan­ ics. In Alston, those excluded had chosen to live in urban areas.403 In the case of New York's felon jury exclusion statute, the effect of the law is to exclude individuals who have had a particular type of contact with the criminal justice system. In both cases, a facially neutral statute designed to regulate jury construction has a grossly disparate racial impact by diluting participation of racial minori­ ties. 404 Based on Alston's reasoning, it is not relevant that the effect of the felon jury exclusion statute did not originate with the exclu­ sion of felons from the jury pool but rather with the conviction of those in the excluded population.405 This argument was not rele­ vant in Alston and should be easily dismissed in the case of felon jury exclusion. A challenger to New York's felon jury exclusion statute should be able to make out a prima facie case of presumptive discrimina­ tory intent based on the gross racial disparity created by the exclu­ sion of all those with felony-conviction histories from the jury pool for life.406 Once a challenger establishes a prima facie case based on the exclusion, the state may rebut the presumption of discrimi­ natory intent.407 The rebuttal must demonstrate not the mere absence of dis­ criminatory motivation but rather that "permissible racially neutral selection criteria and procedures have produced the monochro­ matic result."408 In Guzman, evidence that the disparity resulted from voluntary actions by those Hispanics summoned for jury ser­ vice was a sufficient rebuttal (i.e., requesting exemptions to care for children or due to lack of English proficiency, not replying to

402 Id. 403 See Alston v. Lopes, 621 F. Supp. 992, 995 (D. Conn. 1985), affd sub nom. Alston v. Manson, 791 F.2d 255, 257 (2d Cir. 1986), cert. denied, 479 U.S. 1084 (1987). 404 !d. at 996 (" [T] he statute operates directly to exclude Blacks from the jury array. ). 405 As was true of the statutory scheme in Alston-that the effect originated in Afri­ can Americans' decisions to live in urban areas-the effect of New York's statute simi­ larly originates in decisions made by the excluded group, specifically felons' decisions to break the law. See id. 406 See supra text accompanying notes 35-44; see also Bob Herbert, Watching Certain Peopl.e, N.Y. TIMES (Mar. 2, 2010), at A23 (discussing the discriminatory imposition of New York City's stop-and-frisk policy). 407 Alston v. Manson, 791 F.2d 255, 257 (2d Cir. 1986). 408 Id. 382 NEW YORK CITY IA W REVIEW [Vol. 13:313 the summons) .409 The acts in Guzman all occurred after the individ­ uals were summoned for jury service and relate directly to that ser­ vice. An inadvertent computer error that excluded all residents of particular geographic regions with the effect of disproportionately excluding minorities was a sufficient rebuttal: the Second Circuit distinguished the computer error from the exclusions in Alston and Castaneda because it was a "series of mishaps and botches," not a "considered government policy."410 But simply describing jury pool construction procedures in a neutral way is insufficient. In Alston, where the state did not address the effect of the challenged statute, which the court recognized directly excluded African Americans, but instead argued that any disparate treatment on the jury array is due solely to the use of voter registration lists in selecting jurors, the rebuttal was unsuc­ cessful. 411 Testimony by the state that the governing majority of the county was of the same race as those statistically excluded from the jury pool was also insufficient,412 as was testimony, without more, from selection officials that they acted without a discriminatory motive.413 New York is not likely to be able to demonstrate that permissi­ ble racially neutral selection criteria and procedures produce the racial disparities in New York's jury pool caused by felon jury exclu­ sion. Although there is arguably a voluntary component to acquir­ ing a felony-conviction history, it is distinguishable from the voluntary acts in Guzman-the likelihood of contact with the crimi­ nal justice system does not apply to any person "regardless of his or her race, sex or ethnicity," the standard at work in Guzman.414 Hav­ ing a felony-conviction history is more like choosing where to live (as in Alston) or the type of work to engage in (as in Thiel); where one lives, what one does for a living, and an individual's personal history, including a history of felony conviction, are all rather in-

409 See People v. Guzman, 457 N.E.2d 1143, 1147 (N.Y. 1983). 410 Ricketts v. City of Hartford, 74 F.3d 1397, 1409 n.4 (2d. Cir. 1996). 411 Alston v. Lopes, 621 F. Supp. 992, 997-98 (D. Conn. 1985), affd sub nomAlston v. Manson, 791 F.2d 255 (2d Cir. 1986), cert. denied, 479 U.S. 1084 (1987). 412 Castaneda v. Partida, 430 U.S. 482, 499 (1977). 413 Id. at 498 n.19. 414 See People v. Guzman, 457 N.E.2d 1143, 1147 (N.Y. 1983) ("The fact that a much lower percentage of Hispanics responded to the summonses was not caused by the system and cannot be considered an inherent defect in the process. Hispanics also were disqualified and exempted from service in a greater percentage than non-His­ panics. The reasons-English literacy difficulties and responsibility for children-for these actions would apply to any person regardless of his or her race, sex, or ethnicity.~). 2010] CHALLENGING FELON JURY EXCLUSION 383 trinsic characteristics of individuals. They are not r~sponses to receiv­ ing a jury summons like the acts used to rebut the presumption of discriminatory intent in Guzman.415 If these are "acts" at all, they are not sufficiently voluntary to rebut the prima fade case of racial discrimination stemming from a systematic exclusion of a racial group from the jury pool. The state will likewise not be able to analogize to the computer error in Ricketts-felon jury exclusion is not a "series of mishaps and botches" but is a "considered govern­ ment policy."416 New York's rebuttal is likely to be insufficient. The Court has not made clear whether an unrebutted Cas­ taneda prima fade case is the end of an Equal Protection inquiry into systemic exclusion of a racial group from the jury pool or whether it simply establishes the intent required for strict scrutiny to apply.417 The Second Circuit in Alston held that an unrebutted prima facie case of presumptive discrimination was a violation of the Equal Protection Clause without any further analysis. 418 In Biaggi, the court followed Alston.419 If a court acknowledges a prima fade case and the state does not present a compelling rebuttal, a court in the Second Circuit, following Alston and Biaggi, will most likely directly conclude that a violation of Equal Protection has been established. A court might take an extra step and apply strict scrutiny to New York's felon jury exclusion statute, but the argu­ ments usually presented in support of such a statute are not likely to withstand such an exacting inquiry.420

C. Due Process A litigant's due process rights under either the Fifth or the Fourteenth Amendment are violated when there is an appearance of bias in the courtroom.421 "[D]iscrimination in the seletion of

415 Id. 416 See supra text accompanying note 410; see also N.Y. Jun. LAw § 510 (McKinney 2003). 417 See United States v. Biaggi, 909 F.2d 662, 677 n.4 (2d Cir. 1990); see also, e.g., Ricketts v. Hartford, 74 F.3d 1397, 1407-08 (2d Cir. 1996) (discussing exclusion of minority jurors in a civil case). 418 Alston v. Manson, 791 F.2d 255, 256-57 (2d Cir. 1986). 419 Biaggi, 909 F.2d at 677 n.4 (expressing reservations about the Supreme Court's intention for the Castaneda test on a different issue). 420 See supra Part IIl.A.3. 42l See Joshua M. Segal, The SatisfYing "Appearance ofJustice": The Uses of Apparent Im­ propriety in Constitutional Adjudication, 117 HARv. L. REv. 2708, 2722-24 (2004) (dis­ cussing the value of perceived bias in creating an injury-in-fact for purposes of standing required under Article III). The appearance of bias seems clearly sufficient to make out a due process violation when the issue is the appearance of a judge's bias. "[T]he appearance of evenhanded justice ... is at the core of due process." Mayberry 384 NEW YORK CITY LAW REVIEW [Vol. 13:313 jurors 'casts doubt on the integrity of the judicial process' and places the fairness of a criminal proceeding in doubt."422 Empirical evidence supports this assertion. 423 In Peters, the appearance of bias created by a jury constructed through an illegal discriminatory mechanism was sufficient to make out a due ·process violation in the opinion of three Justices.424 Three other Justices found other violations sufficient to invalidate the proceedings without relying on due process.425 Since Peters, the Court has clearly stated that the extent of due process protections applicable to jury selection is an open issue, at least in the context of selecting members of a grand jury: We need not explore the nature and extent of a defendant's due process rights when he alleges discriminatory selection of grand jurors ... That issue, to the extent it is still open based upon our earlier precedents, should be determined on the mer- its, assuming a court finds it necessary to reach the point.426 Although there are no New York cases where a court found a due process violation based on an illegally constructed jury, the District Court for the Eastern District of New York has explained that, "[t]o make out a prima facie claim that a jury's composition violated a defendant's due process rights, the defendant has the burden of showing that the process used to select the jury pool systematically excluded a substantial and identifiable segment of the community."427 It will not be difficult to demonstrate that there is such an appearance as a result of statutory felon jury exclusion and its racially skewed effects.

IV. CONCLUSION New York excludes all individuals who have ever been con­ victed of a felony from its jury pool except in the most extraordi- v. Pennsylvania, 400 U.S. 455, 469 (1971) (Harlan,]., concurring) (addressing appear­ ance of bias by a judge). Even decisionmakers who in fact have no actual bias must be disqualified if there might be an appearance of bias. See id. at 465 (majority opinion). 422 Powers v. Ohio, 499 U.S. 400, 411 (1991) (quoting Rose v. Mitchell, 443 U.S. 545, 556 (1979)). 423 See Austin, supra notes 47-52 and accompanying text. 424 Peters v. Kiff, 407 U.S. 493, 502 (1972) (plurality) (relying on due process). 425 Id. at 506-07 (Brennan, Powell, White,JJ., concurring in the judgment) (decid- ing on grounds other than due process). 426 Campbell v. Louisiana, 523 U.S. 392, 400-01 (1998). 427 Ballard v. Walker, 772 F. Supp. 1335, 1342 (E.D.N:Y. 1991) (quoting People v. Guzman, 457 N.E.2d 1143, 1146 (N.Y. 1983), citing Peters, 407 U.S. at 503, Duren v. Missouri, 439 U.S. 357, 364 (1979), cert. denied, 466 U.S. 951 (1984)). 2010] CHALLENGING FELON JURY EXCLUSION 385

nary circumstances.428 This practice undermines the representa­ tiveness of juries, their inclusiveness, and public confidence in the courts. It also compromises individual constitutional rights. Despite the inclusion of those with felony-conviction histories in the jury pools of nearly half of U.S. jurisdictions, the effectiveness of those judicial systems has not been compromised. The mechanisms for insuring that juries are competent and unbiased-voir dire, per­ emptory challenges, and challenges for cause-all work in those jurisdictions without alienating a segment of the populations from the mechanisms of civic participation. The citizens of New York deserve no less.

428 N.Y.Jun. LAw § 510(3) (McKinney 2003); supra note 3 and accompanying text. MAXIMIZING INFORMATION'S FREEDOM: THE NUTS, BOLTS, AND LEVERS OF FOIA

Justin Cox*

INTRODUCTION ...... 387 I. WHAT THE FOIA PROMISES...... 390 II. WHAT THE FOIA DELIVERS...... 393 III. DRAFTING SUCCESSFUL FOIA REQUESTS...... 399 A. Knowing How to Ask ...... 399 B. Finding Information on Information ...... 402 i. FOIA Disclosures & FOIA Logs ...... 404 ii. Systems of Records Notices (SORNs)...... 405 iii. FOIA Litigation Materials ...... 406 C. Litigating FOIA Requests: Discovery...... 410 JV. INFORMATION FEDERALISM ...... 412 A. State FOi Enforcement...... 414 B. Scope of Coverage ...... 417 C. Leveraging Vertical Federalism...... 418 CONCLUSION: HOPE FOR CHANGE? ...... 423

INTRODUCTION The federal Freedom of Information Act1 ("FOIA") is the most maddeningly cumbersome law one could ever love. As writ­ ten, the FOIA erects a relatively simple process for gaining access to the wealth of information possessed by the Executive Branch of the federal government. FOIA is not only an incredibly powerful resource for anyone wanting to know "what their government is up to,"2 it can also be a useful tool to uncover information vital to advocacy and litigation. Frequently, in fact, such as in certain ad­ ministrative proceedings, the FOIA may be the only mechanism available for obtaining information necessary to protect one's (or

* Liman Fellow, CASA de Maryland 2008-09; J.D., Yale Law School; B.A, Wash­ ington University in St. Louis. The author would like to thank Jennifer Bennett for helpful comments; Mike Wishnie for introducing him to the FOIA and for frequent guidance regarding its use; and the editors of the New York City Law Review for con­ siderable editing assistance. 1 Freedom of Information Act, 5 U.S.C. § 552 (2006), amended l7y OPEN Govern­ ment Act of 2007, 5 U.S.C. § 552 (Supp. II 2008), was signed into law by President Lyndon B. Johnson on September 6, 1966, and went into effect the following year. 2 See U.S. Dep't ofJustice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (explaining that the "core purpose" of the FOIA is informing citizens about "what their government is up to").

387 388 NEW YORK CITY LAW REVIEW [Vol. 13:387 one's client's) legal rights.3 But even when alternative procedures (such as discovery) are available, the FOIA can be used as an effec­ tive supplement4 or as a pre-litigation fact-gathering device. 5 Be­ yond the litigation context, government data can be marshaled to support arguments for policy reform by demonstrating that cur­ rent policies are routinely violated6 or are simply ineffectual.7 In

3 One example is removal (deportation) proceedings in Immigration Court. While immigration practitioners have long used the FOIA to obtain clients' "Alien files," some advocates have further expanded the use of FOIA in recent years to ob­ tain records-including, for example, sworn statements by arresting officers given during internal investigations-to impeach government accounts of the circum­ stances surrounding their clients' arrests. See, e.g., N.C. Aizenman, Conflicting Accounts of an ICE Raid in Md.: Officers Portray Detention of 24 Latinos Differently in Internal Probe and in Court, WASH. PosT, Feb. 18, 2009, at AOl; Scott Calvert, Immigration Official Told Deputy To 'Make More Arrests,' ICE Report Says, BALT. SuN, Feb. 19, 2009, at IA. Cf Larry R. Fleurantin, Nowhere to Turn: IUegal Aliens Cannot Use the Freedom ofInformation Act as a Discovery Tool to Fight Unfair Removal Hearings, 16 CARnozo]. INT'L & CoMP. L. 155 (2008) (arguing that DHS's practice of withholding asylum interview notes, which are often used to impeach an alien's testimony during his or her merits hearing, from the asylum applicant under FOIA Exemption (b) (5) violates the FOIA and due process). 4 While the FOIA is not intended to supplement discovery, see John Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989), it also does not displace rules of discovery, see id., and it serves as an independent basis of obtaining information in the posses­ sion of the federal government, see, e.g., United States v. Murdock, 548 F.2d 599, 602 (5th Cir. 1977). Even a finding that materials are exempt under the FOIA does not affect a litigant's right to compel disclosure of the same information through the discovery process. See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344 (D.C. Cir. 1984) ("The FOIA acts as a 'floor' when discovery of government documents is sought in the course of civil litigation. Though information available under the FOIA is likely to be available through discovery, information unavailable under the FOIA is not necessarily unavailable through discovery."). See generally ELEc. TRONIC PRIVACY INFORMATION CENTER, LITIGATION UNDER THE FEDERAL OPEN GOVERN­ MENT LAws (Harry A. Hammitt et al. eds., 24th ed. 2008);jAMES T. O'REILLY, FEDERAL INFORMATION DISCLOSURE 341-46 (3d ed. 2000); George K Chamberlin, Use ofFreedom ofInformation Act as Substitute For, or as Means of, Supplementing Discovery Procedures Avail­ abl,e to Litigants in Federal Civil, Criminal, or Administrative Proceedings, 57 A.LR. FED. 903 (1982); David I. Levine, Using the Freedom ofInformation Act as a Discovery Device, 36 Bus. LAWYER 45 (1980); Edward A. Tomlinson, Use of the Freedom ofInformation Act for Discov­ ery Purposes, 43 Mn. L. REv. 119 (1984). 5 For example, depending on how courts interpret the holdings of Ashcroft v. Iqba~ 556 U.S._, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)-which may or may not impose a heightened pleading standard for cer­ tain types of claims, particularly those involving supervisory liability for civil rights' violations-the FOIA can be an effective way of ascertaining who knew what and when. 6 Chris Lasch, for example, has suggested that the Executive Branch's authority to issue immigration detainers, see 8 C.F.R. § 287. 7 (a), is not only ultra vires, see Chris Lasch, Enforcing the Limits of the Executive's Authority to Issue Immigration Detainers, 35 WM. MITCHELL L. REv. 164 (2008), but also that the detainer's purported authoriza­ tion for holding immigrant detainees, see 8 C.F.R. § 287. 7 ( d), is routinely violated. See, e.g., Ochoa v. Bass, 181 P.3d 727, 734 (Okla. Crim. App. 2008) (granting habeas peti­ tions because "[o]nce the forty-eight (48) hour period granted to ICE [Immigration 2010] MAXIMIZING INFORMATION'S FREEDOM 389 short, the government has enormous amounts of information, and obtaining it can be crucial to persuading others. The FOIA is a powerful way of gaining access. Unfortunately, the actual administration of the FOIA can be anything but simple, and long processing delays and inadequate responses can easily frustrate requesters. This Article is directed at those who wish to better understand the FOIA and those who wish to more effectively utilize it. It highlights the discrepancy between what the FOIA promises and what it actually delivers, and suggests ways FOIA requesters can minimize that gap. There are a number of valuable resources, both online8 and in print,9 that detail both the requirements of the FOIA and the pro-

& Customs Enforcement], by 8 C.F.R. § 287.7(d), for assumption of custody had lapsed without ICE taking any action on its detainers, the State no longer had author­ ity to continue to hold Petitioners."). Data on the frequency of such violations, how­ ever, is exceedingly difficult to obtain even for a single jail facility, See, e.g., Fla. Immigrant Coal. v. Mendez, No. 09-81280-CIV, 2010 WL 4384220, *8 (S.D. Fla. Oct. 28, 2010) (granting summary judgment to a county sheriff defendant on a Monell claim under 42 U.S.C. § 1983 regarding his jail's handling of ICE detainers because the plaintiffs only had evidence of a "handful" of individuals affected). This is a prob­ lem that could be addressed, at least in part, through the FOIA. 7 For example, in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court held that the exclusionary rule is inapplicable in deportation (now removal) proceed­ ings, based in part on the fact that allegations of Fourth Amendment violations were rare and the apparent efficacy of the INS' scheme for deterring such misconduct. See id. at 1044. Nonetheless, a plurality of the Court indicated that it might reconsider "if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread." Id. at 1050. Some advocates have argued that this time has come. See Stella Burch Elias, Good Reason to Believe: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109. Ms. Burch Elias has marshaled an impressive amount of evidence in support of this argument, but further factual support could be developed through the FOIA by, for example, requesting records related to motions to suppress, civil rights complaints filed, claims under the Federal Tort Claims Act, etc. 8 See, e.g., The Department ofJustice Guide to the Freedom ofInformation Act, U.S. DEP'T OF JusTICE, http://wwwJustice.gov/oip/foia_guide09.htm (last visited Nov. 12, 2010) [hereinafter DO] Guide to the FOIA]; FOIA Reference Guide (2010), U.S. DEP'T OF JusTICE, availabl,e at http://wwwJustice.gov/oip/04_3.html (last visited Nov. 12, 2010); Freedom of Information Center, Nat'l Freedom of Info. Coalition, http:/ /www.nfoic.org/foi­ center (last visited Nov. 12, 2010) [hereinafter "NFOIC"]; NATIONAL SECURI'IY ARCHIVE, EFFECTIVE FOIA REQUESTING FOR EVERYONE (2008), availab/,e at http://www. gwu.edu/-nsarchiv/nsa/foia/foia_guide/foia_guide_full.pdf; REPORTER'S CoMM. FOR FREEDOM OF THE PREss, FEDERAL OPEN GoVERNMENT GUIDE (Corinna]. Zarek ed., 10th ed. 2009), available at http://www.rcfp.org/fogg/. 9 See, e.g., P. STEPHEN GIDIERE III, THE FEDERAL INFORMATION MANuAL: How THE GoVERNMENT COLLECTS, MANAGES, AND DISCLOSES INFORMATION UNDER FOIA AND OTHER STATUTES (2006); JACQUELINE Kr..osEK, THE RIGHT TO KNow: YouR GUIDE TO USING AND DEFENDING FREEDOM OF INFORMATION LAW IN THE UNITED STATES (2009); LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAws, supra note 4; JAMES T. O'REILLY, supra note 4. 390 NEW YORK CITY LAW REVIEW [Vol. 13:387 cess for invoking it. Therefore, this Article will only discuss the mechanics of the FOIA where necessary. Section I, by way of back­ ground, provides a brief explanation of the FOIA, as it is actually written, while Section II discusses how-and, to some extent, why-the reality of FOIA administration does not reflect the statu­ tory mandates. Section III explores a few ways that requesters can try to mitigate those shortcomings in drafting and litigating FOIA requests by leveraging other available sources of information. Sec­ tion IV discusses the FOIA's state-law counterparts, including ways that they can be used to complement and amplify the utility of the FOIA. Finally, the Conclusion offers some hope for future improve­ ments in government transparency.

I. WHAT THE FOIA PROMISES The FOIA permits access to records10 of virtually every part of the federal Executive Branch, including its departments, agencies, boards, commissions, and government-controlled corporations.11

10 An agency record is essentially anything reproducible over which an agency has possession and control, no matter the format in which the record is maintained. See U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). See also 5 U.S.C. § 552(f) (2) (A) (2006). See generally LITIGATION UNDER THE FEDERAL OPEN GOVERN­ MENT LAws, supra note 4, at 259-78. The FOIA amendments of 2007 added to the definition of "records" those "maintained for an agency by an entity under Govern­ ment contract, for the purposes of records management." Openness Promotes Effec­ tiveness in our National Government Act of 2007, Pub. L. No. 110-175, § 9, 121 Stat. 2524, 2528-29 (2007) (to be codified at 5 U.S.C. § 552(f) (2) (B)) [hereinafter "OPEN Government Act of 2007"]. Physical objects that cannot be reproduced (such as soil samples) are not considered a record under the FOIA. See DO] Guide to the FOIA, supra note 8, at 33 ("The FOIA applies to 'records,' not tangible, evidentiary objects." (cita­ tion omitted)). It is also well-established that agencies are not required to create records in response to a FOIA request. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980) ("The [FOIA] does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained."). 11 5 U.S.C. § 552(f) (1) (defining "agency" as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the Executive Branch of the Government (including the Executive Office of the President), or any independent regulatory agency"). Among the entities not covered by the FOIA are Congress and the federal judiciary, certain personnel and units of the Executive Office of the President. See LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAws, supra note 4, at 254-56. Federally-funded state agencies, state, and local governments do not fall within the FOIA's definition of an agency. See 5 U.S.C. § 552(f) (1). Additionally, some federal entities do not, for some reason or another, fit the FOIA's definition of an "agency" and thus are not covered by the FOIA. See, e.g., Wash. Legal Found. v. U.S. Sentencing Comm'n, 17 F.3d 1446, 1448 (D.C. Cir. 1994) (holding that the U.S. Sentencing Commission does not count as an "agency"). In Fiscal Year 2008, 77 agencies and the 15 executive departments com­ pleted annual FOIA reports, as required by 5 U.S.C. § 552(e)(l). These annual re­ ports are available on the U.S. Department ofjustice Web site. See Annual FOIA &ports 2010] MAXIMIZING INFORMATION'S FREEDOM 391

To gain access to government records, one mu~t merely send a re­ quest letter-or, increasingly, an email1 2-to the relevant govern­ ment entity. So long as the request "reasonably describes" the information sought, 13 the FOIA requires the agency to make a de­ termination on the request within 20 business days. 14 Requesters are generally responsible for the cost of searching for and copying records, 15 but fee waivers are available to a broad class of reques­ ters.16 Moreover, under 2007 amendments to the FOIA, if an agency does not abide by any of the statute's deadlines, it cannot charge the requester search fees; in some circumstances, it cannot charge duplication fees either.17 The statute does provide nine "exemptions" to disclosure, 18 but they are mostly discretionary19 and are "narrowly construed."20

Submitted by Federal Departments and Agencies, U.S. DEP'T OF JusTICE, http:/ /wwwJustice. gov/oip/fy08.hunl (last visited Nov. 17, 2010) (collecting all annual FOIA reports). I2 See Principal FOIA Contacts at Federal Agencies, U.S. DEP'T OF JUSTICE, http:/ /www. justice.govI oip/foiacontacts.hun (last visited Nov. 17, 2010). 13 5 U.S.C. § 552(a)(3) (A) (i). A FOIA request should be specific enough that a government employee familiar with the subject area can locate the records with rea­ sonable effort. See H.R. REP. No. 93-876, at 6 (1974). Even when precisely identified, courts will sometimes uphold an agency's refusal to fulfill a FOIA request if doing so would be "unreasonably burdensome." See, e.g., Dale v. IRS, 238 F. Supp. 2d 99, 104-05 (D.D.C. 2002) (noting that a request must "permit an [agency] employee to locate the records with a 'reasonable amount of effort,'" and that the plaintiff's re­ quest "amounted to an all-encompassing fishing expedition ... at taxpayer expense." (citation omitted)); Am. Fed'n of Gov't Employees, Local 2782 v. Dep't of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990). 14 5 U.S.C. § 552(a) (6)(A) (i) (requiring an agency to make a "determination" in response to a FOIA request within 20 working days). In some circumstances, expe­ dited processing is available. Id. § 552(a) (6) (E)(i). Under "unusual drcumstances," however, an agency may extend the deadline for responding by· an additional ten business days. Id. § 552(a) (6) (B) (i). 15 Id.§ 552(a)(4)(A). 16 See id. § 552 (a) (4) (A) (iii). 17 See OPEN Government Act of 2007, Pub. L. No. 110-175, § 6, 121 Stat. 2524, 2526 (2007) (to be codified at 5 U.S.C. § 552(a) ( 4) (A) (viii)). For a critical look at the most recent amendments to the FOIA, see Martin E. Halstuk, When Secrecy Trumps Transparency: 'Why the OPEN Government Act of 2007 Falls Short, 16 COMMLAW CoNSPEC TUS 427 (2008), available at http://commlaw.cua.edu//articles/vl6/16.2/Halstuk. pdf. 18 5 U.S.C. §§ 552(b) (lj-(9). In addition to the exemptions, there are also three "exclusions" from the requirements of the FOIA. Id.§§ 552(c) (l)-(3). For more on exclusions, see LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAws, supra note 4, at 335-40; DO] Guide to the FOIA, supra note 8, at 671-83. 19 Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979) ("Congress did not design the FOIA exemptions to be mandatory bars to disclosure."); Bartholdi Cable Co. v. FCC, 114 F.3d 274, 282 (D.C. Cir. 1997) ("FOIA's exemptions simply permit, but do not require, an agency to withhold exempted information ...."). An exception to exemptions being discretionary is when a statute prohibits disclosure, such as the Family Educational Rights and Privacy Act. See 20 U.S.C. § 1232g (2000). See also 392 NEW YORK CITY LAW REVIEW [Vol. 13:387

The presumption remains, at all times, that agency records are to be disclosed.21 Even when an agency chooses to invoke an exemp­ tion to shield information from disclosure, it may withhold only that information to which the exemption applies, providing all "reasonably segregable" portions of that record to the requester.22 Finally, the FOIA provides that dissatisfied requesters may ad­ ministratively appeal decisions denying any part of their request. 23 If that does not lead to a satisfactory resolution, requesters can seek judicial review in federal district court;24 if they do so and substan­ tially prevail,25 requesters are entitled to reimbursement of their reasonable attorneys' fees and costs.26

Brown, 441 U.S. at 293 n.14 (comparing FOIA to the Privacy Act of 1974, 5 U.S.C. § 552a (2006)). 20 Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting FBI v. Abramson, 456 U.S. 615, 630 (1982)). 21 See, e.g., Klamath Water Users, 532 U.S. at 7-8 ("[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act."). 22 5 U.S.C. § 552(b). Thus, for example, if only a portion ofa record falls within an exemption, the agency must redact just that part and disclose the remainder. See gener­ ally Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) ("The focus in the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material."). , 23 5 U.S.C. § 552(a) (6) (A) (i). Agencies have twenty business days to adjudicate administrative appeals. Id.§ 552(a) (6) (A) (ii). A requester must file an administrative appeal before proceeding to federal court-i.e., they must administratively exhaust their remedies-but if the agency has not responded to a FOIA request or an admin­ istrative appeal within the twenty-day timeframe, the requester has constructively ex­ hausted. See id. § 552(a) (6) (C) (i). 24 Id. § 552(a) ( 4) (B). Under the FOIA, venue is proper in the U.S. district where the requester resides, where the records are located, or the District of Columbia. Be­ cause venue is always proper in the District Court of the District of Columbia, most FOIA caselaw comes out of the D.C. Circuit. In the 2008 calendar year, a little over 40% of all FOIA cases brought nationwide were filed in the District Court of the District of Columbia. See DEP'T OF JUSTICE, ANNUAL FOIA LITIGATION AND COMPLIANCE REPORT: LIST OF FOIA CAsEs RECEIVED IN 2008 (2009), availabl,e at http:/ /wwwJustice. gov/oip/08received.htm [hereinafter LIST OF FOIA CAsEs RECEIVED IN 2008]. Al­ though this means that judges on the District Court of the District of Columbia and the D.C. Circuit Court of Appeals have accumulated expertise on FOIA, this is not always to the benefit of those challenging an agency denial; would-be litigants are therefore encouraged to consider the full array of possible venues. See LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAws, supra note 4, at 359-60; Seth F. Kreimer, The Freedom of Information Act and the Ecology of Transparency, IO U. PA. J. CONST. L. 1011, 1049-52 (2008). 25 5 U.S.C. § 552(a)(4)(E)(ii) (defining "substantially prevail[]"). 26 5 U.S.C. § 552(a) (4) (E). In Buckhannon Board & Care Home, Inc. v. West Virginia Department ofHealth & Human Resources, 532 U.S. 598 (2001), the Supreme Court held that the "catalyst theory"-whereby the bringing of a lawsuit is reasonably perceived as having caused an opposing party to voluntarily change position, even though the court had not yet rendered a judgment-is not a permissible basis for the award of 2010] MAXIMIZING INFORMATION'S FREEDOM 393

In addition, agencies are not to wait for requests to make in­ formation available; the FOIA requires each agency to make cer­ tain proactive disclosures available on their websites27-in particular, those records agencies should know will be of general interest to the public.28 In sum, the FOIA provides extremely broad access to nearly all replicable information in the possession or control of the Execu­ tive Branch. Access is guaranteed by short deadlines for agency re­ sponses, a strong presumption of disclosure, and a private right of action subsidized by the right to reasonable attorneys' fees for pre­ vailing parties.

II. WHAT THE FOIA DELIVERS Unfortunately, as even Congress has recognized, the realities of the FOIA do not deliver all that the statute promises.29 Although

attorney's fees under either the Fair Housing Act, 42 U.S.C. § 3613 (2006), or the Americans with Disabilities Act, 42 U.S.C. § 12205 (2006). Buckhannon, 532 U.S. at 605-610. Instead, the Court said that a 'Judicially sanctioned change in the legal rela­ tionship of the parties" was needed for a "prevailing party" to be eligible for attorney's fees. Id. at 605. Subsequent to Buckhannon, two Circuit Courts extended its rationale to deny attorney's fees to plaintiffs in FOIA cases where the agencies had "voluntarily" disclosed the requested records after suit was filed, but before they were ordered to do so. See Union of Needletrades, Indus. & Textile Emp.'s, AFL-CIO, CLC v. INS, 336 F.3d 200, 202 (2d Cir. 2003); Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452, 453-57 (D.C. Cir. 2002). The OPEN Government Act of 2007 explicitly restored the catalyst theory to FOIA cases. See Pub. L. No. 110-175, § 4, 121 Stat. 2524, 2525 (codified at 5 U.S.C. § 552(a)(4)(E)(ii)); S. Rep. No. 110-59, at 6 (2007) ("[This section of the bill is intended] to clarify that a complainant has sub­ stantially prevailed in a FOIA lawsuit, and is eligible to recover attorney fees ... if the pursuit of a claim was the catalyst for the voluntary or unilateral change in position by the opposing party."); 153 Cong. Rec. Sl5701-04 (daily ed. Dec. 14, 2007) (statement of Sen. Leahy). 27 5 U.S.C. § 552(a) (2). The Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (codified at 5 U.S.C. § 552) [hereinafter E-FOIA] require agencies to create online "electronic reading rooms" where com­ monly-requested material can be accessed. As of 2007, however, a substantial number of agencies still had not complied with E-FOIA requirements. See generally NATIONAL SECURl"IY ARCHIVE, FILE NOT FOUND: 10 YEARS AFTER E-FOIA, MOST FEDERAL AGENCIES ARE DELINQUENT (Mar. 12, 2007), available at http://www.gwu.edu/-nsarchiv/ NSAEBB/NSAEBB216/ e-foia_audit_report.pdf. 28 5 U.S.C. § 552(a)(2) (D) ("Each agency, in accordance with published rules, shall make available for public inspection and copying copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have be­ come or are likely to become the subject of subsequent requests for substantially the same records"). 29 See OPEN Government Act of 2007, Pub. L. No. 110-175, § 2(5) 121 Stat. 2524, 2524 (" [I]n practice, the Freedom of Information Act has not always lived up to the ideals of that Act"). 394 NEW YORK CITY LAW REVIEW [Vol. 13:387

the purpose of this Article is not to critique the design or adminis­ tration of the FOIA, maximizing the law's utility requires an aware­ ness of its shortcomings; therefore, I discuss a few of them in this section. Two of the most common frustrations in using the FOIA are long processing times and insufficient responses to requests. As mentioned, agencies "shall" make a substantive determination on a FOIA request within 20 business days. 30 In reality that deadline is frequently (and perhaps usually) missed.31 For example, in Fiscal Year 2008, the Department of Homeland Security ("DHS")-which received more than one-sixth of all FOIA requests that year32-re­ ported median processing times of 87 business days for "simple" requests and 374 for "complex" ones.33 There are approximately 220 business days in a year, so the median complex request was pending for about a year and nine months when DHS finally processed it. Even the median request DHS granted "expedited processing"34 was not processed within the statutorily-mandated

30 5 U.S.C. § 552(a) (6) (A) (i). 31 At the end of Fiscal Year 2008, six of the fifteen federal departments had FOIA requests pending from the 1990s. The single longest-pending FOIA request had been pending since May 1, 1992; perhaps predictably, it was to the CIA. See U.S. DEP'T OF JUSTICE, OFFICE OF INFORMATION POLICY, FOIA POST, SUMMARY OF ANNUAL FOIA RE­ PORTS FOR FISCAL YEAR 2008 (Aug. 19, 2009), availab/,e at http://wwwJustice.gov/oip/ foiapost/2009foiapost16.htm I.hereinafter SUMMARY OF 2008 FOIA REPORTS]. 32 In Fiscal Year 2008, the federal government as a whole received about 600,000 requests under the FOIA, with DHS responsible for about 109,000 of those. See id. 33 U.S. DEP'T OF HOMELAND SECURITY, 2008 ANNUAL FREEDOM OF INFORMATION ACT REPORT TO THE ATTORNEY GENERAL OF THE UNITED STATES 12 [hereinafter DHS 2008 FOIA REPORT], available at http://www.dhs.gov/xlibrary/assets/foia/pri­ vacy_rpt_foia_2008.pdf. The "simple" and "complex" distinction comes from a provi­ sion of the FOIA stating that "[e]ach agency may promulgate regulations ... providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests." 5 U.S.C. § 552(a) (6) (D) (i) (2006). Somewhat contradictorily, it also says that the creation of multi track process­ ing "shall not be considered to affect the requirement ... to exercise due diligence" in meeting the deadlines for responding to requests. 5 U.S.C. § 552(a) (6) (D) (iii) (2006). There is no further statutory guidance as to the criteria for placing a request in one track or the other, though DHS's implementing regulations suggest that "the number of pages involved" may be an additional distinguishing factor. See 6 C.F.R. § 5.5(b)(l) (2010). The Senate Report accompanying the 1996 FOIA amendments that added this provision, see Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, § 7, 110 Stat. 3048, 3050-51 (1996), says that "[s]imple requests are those requiring 10 days or less to process," and states further that "[u]nder a two-track system some simple requests shall be processed ahead of more complex ones which may have been received earlier." S. REP. No. 104-272, at 17 (1996). 34 See 5 u.s.c~ § 552(a) (6) (E) (i) (2006}. 2010] MAXIMIZING INFORMATION'S FREEDOM 395 timeframe.35 Of course, some of DHS's 19 component agencies have better processing times than others, 36 but overall, over 40% of all requests DHS processed in the 2008 fiscal year languished for more than 400 working days.37 Perhaps just as frustrating for FOIA requesters is receiving a response that only addresses part of the request or produces far fewer records than reasonably anticipated. Agencies have the bur­ den to conduct a reasonable search, defined loosely and somewhat circularly as a search "reasonably calculated" to uncover all docu­ ments responsive to the request.38 But FOIA responses often in­ clude no information about the search that was actually conducted, leaving requesters to speculate about the search based solely on the records they received. Like any other FOIA-related decision, the failure to conduct a reasonable search can be appealed administra­ tively, but the delays in adjudicating appeals can be even longer than those for initial processing.39 The reasons for these problems are numerous. Although there is hope that at least some of the reasons can be addressed in the short term,40 many are endemic to a system with twin goals-trans-

35 DHS 2008 FOIA Report, supra note 33, at 12 (showing median processing times of 23 business days for expedited requests). 36 U.S. Citizenship & Immigration Services [hereinafter USCIS], the Federal Emergency Management Agency and the Office of the Inspector General have partic­ ularly poor response times. See id. at 6. USCIS receives a majority of DHS FOIA re­ quests. See id. 37 Id. at 13-14. 38 Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) ("It is elementary that an agency responding to a FOIA request must conduct a search reasonably calculated to uncover all relevant documents." (internal citation omitted)). See also 5 U.S.C. § 552(a)(3)(C) (2006) ("[A]n agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system."); id. § 552(a)(3)(D) ("[T]he term 'search' means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request."). 39 DHS's median response time for administrative appeals in Fiscal Year 2008 was 539 business days. DHS 2008 FOIA Report, supra note 33, at 10. 40 At least one of the reasons-former President George W. Bush's policy regard­ ing the FOIA-has been reversed by the Obama administration. On October 12, 2001, Attorney General Ashcroft issued a memorandum to all federal agencies, en­ couraging them, in responding to FOIA requests, to "carefully consider" all "funda­ mental values that are held by our society," including "safeguarding our national security, enhancing the effectiveness of our Jaw enforcement, protecting sensitive bus­ iness information and ... personal privacy." Memorandum from John Ashcroft, Attor­ ney Gen. to Heads of All Fed. Dep'ts and Agencies (Oct. 12, 2001), availabl.e at http:/I www.doi.gov/foia/foia.pdf. Attorney General Ashcroft assured the agencies that "the Department of Justice will defend your [FOIA] decisions unless they lack a sound legal basis ...." Id. See also Memorandum from Laura L.S. Kimberly, Acting Dir., Info. 396 NEW YORK CITY LAW REVIEW [Vol. 13:387

parency and short processing times-that are frequently in conflict. Since the FOIA applies to virtually every corner of the Execu­ tive Branch, its implementation requires a high degree of decen­ tralization, with thousands of federal employees and contract personnel making literally millions of FOIA decisions every year. Supervising them are hundreds, if not thousands, of different indi­ viduals, all working in different agencies and locations, on differ­ ent substantive subject matters, and with different interpretations of the FOIA's requirements and different understandings of the importance of governmental transparency more generally. These conditions inevitably lead to wide variations in how requests are handled. And unlike many other areas of the law where enforcement is broadly decentralized, only a small fraction of the millions of FOIA decisions made annually are ever scrutinized by someone with the power or authority to alter them. Indeed, only about 3% of all FOIA requests are either appealed administratively41 or litigated in federal court,42 meaning that for the remaining 97% of all FOIA requests, the initial determination is also the last one. This reality undoubtedly has consequences for the incentives and expectations

Sec. Oversight Office, to Dep'ts & Agencies (Mar. 19, 2002), available at http://www. justice.gov/archive/ oip/foiapost/2002foiapostl0.htm (suggesting ways to resist dis­ closure of "information that could be misused to harm the security of our nation and the safety of our people."). Attorney General Holder rescinded Attorney General Ash­ croft's memo and stated that the DOJ would only defend discretionary agency deci­ sions to deny FOIA requests if "the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions." Attorney Gen. Memo­ randum for Executive Departments and Agencies Concerning the Freedom of Infor­ mation Act, 74 Fed. Reg. 51,878-82 (Oct. 8, 2009). 41 Note that administrative exhaustion is a requirement for filing in federal court. If the agency does not make a determination within twenty business days of receiving the request, however, the requester has constructively exhausted and may proceed immediately to federal court. See supra note 23. Processing delays and the possibility for constructive exhaustion make it unlikely that all federal FOIA cases involved an administrative appeal. 42 See LIST OF FOIA CAsEs RECEIVED IN 2008, supra note 24. The Attorney General is required to submit this report to Congress each year. See5 U.S.C. § 552(e) (6). Most of these cases will likely be dismissed voluntarily once the agency eventually processes the initial request. In calendar year 2008, there were a total of 227 decisions of some kind rendered in FOIA cases, but only 108 of those involved a judgment for either party, with the remainder being dismissals; a significant number of the dismissals were stipulated. See DEP'T OF JusTICE, 2008 CALENDAR YEAR REPORT ON DEP'T OF JusTICE FREEDOM OF INFO. ACT LmGATION ACTIVITIES: LIST OF FOIA CAsEs IN WmcH A DECI­ SION WAS RENDERED IN 2008, availabk at http://wwwJustice.gov/oip/08decisions.htm. Attorneys' fees were only awarded in five cases, for a grand total of about $230,000. Id. 2010] MAXIMIZING INFORMATION'S FREEDOM 397 of the FOIA officers making the disclosure decisions.43 Further ex­ acerbating the situation is that the same FOIA officers are under pressure to reduce the substantial backlogs of requests that have built up over the last several years. 44 Together, these two factors­ the general absence of third-party review coupled with institutional demands to not only respond timely to incoming FOIA requests, but to reduce the accumulated backlog-lead predictably to the cursory responses discussed above. To be clear, FOIA officers are not, by any stretch, solely (or even primarily) to blame here.45 Not only are they negotiating vari­ ous institutional pressures with ambiguous standards, but they are doing so with inadequate resources. Lofty rhetoric and statutory mandates notwithstanding, Congress's failure to allocate sufficient resources for the administration of the FOIA is principally to blame for the long delays in processing requests.46 The funding that is allocated is often maldistributed, with those agencies with a relatively small domestic political constituency, such as the U.S. Cit­ izenship and Immigration Services, receiving disproportionately lit­ tle funding despite receiving a disproportionately high percentage of all FOIA requests.47

43 Given these pressures, for example, FOIA officers seem more likely to err on the side of conducting a narrow search and/ or disclosing only that information that clearly does not fall within a statutory exemption. Narrow searches save time, and even if agency officials conduct an egregiously narrow one, it is unlikely that the ade­ quacy of the search will ever be reviewed. In fact, in regards to some agencies (like those involved in law enforcement or national security) or some records (like those which would be clearly embarrassing to identifiable individuals), FOIA officers are more likely to receive negative feedback for disclosing too much information than too little. 44 See SUMMARY OF 2008 FOIA REPORTS, supra note 31 (discussing backlogs). 45 Indeed, when the FOIA works at all, it is usually their doing. See generally Kreimer, supra note 24, at 1046-49 (discussing how "FOIA's efficacy depends on a law-abiding civil service"). 46 In Fiscal Year 2008, the federal government, as a whole, spent approximately $338 million on the administration of the FOIA. See SUMMARY OF 2008 FOIA REPORTS, supra note 31. That figure is virtually unchanged from Fiscal Year 2003. See U.S. DEP'T OF JUSTICE, OFFICE OF INFORMATION POLICY, FOIA POST, SUMMARY OF ANNUAL FOIA REPORTS FOR FISCAL YEAR 2003, availabl,e at http://wwwJustice.gov/archive/oip/ foiapost/2004foiapost22.htm (posted July 29, 2004). 47 Even though USCIS receives a majority of all FOIA requests received by DHS, and even though it also has the largest backlog and the longest processing times, its FOIA budget, on a per-processed-request basis, is dwarfed by nearly all other DHS components. See SUMMARY OF 2008 FOIA REPORTS, supra note 31. Many, if not most, FOIA requests to USCIS are on behalf of non-citizens requesting their Alien (or "A") Files. Non-citizens must use FOIA because the Privacy Act only applies to citizens and legal permanent residents, see Privacy Act of 1974, 5 U.S.C. § 552a(2) (2000); and discovery is generally unavailable in Immigration Court, including in removal ( depor­ tation) proceedings, see supra note 3. 398 NEW YORK CITY IA W REVIEW [Vol. 13:387

In summary, the administration of the FOIA is seriously ham­ pered by broad decentralization; relatively little oversight; institu­ tional pressure to reduce backlogs; and chronic understaffing. Add in political considerations and, at least recently, concerns (real, contrived, or exaggerated) about releasing information related to national security,48 and what results is a deeply flawed system. 49 On the other hand, someone else might look at the same facts-especially the relatively few FOIA requests that are adminis­ tratively appealed and/or litigated-and conclude that agencies do a generally satisfactory job administering the FOIA. But that assess­ ment would depend on the assumption that every inadequate agency response is administratively appealed and/ or litigated, and the available evidence is to the contrary. One way to measure the adequacy of an agency's response is to compare its pre-litigation response to a FOIA request to its sup­ plemental response to that same request after the agency has been sued. That comparison yields a sharp contrast, both in respect to the number of records produced and the exemptions that agencies choose to defend in court. With regards to the former, it appears common for an agency to produce several times more records after being sued for a FOIA violation than it did pre-litigation, even while averring in pre-litigation response letters that it had pro­ duced all responsive records.50 The story is similar with respect to

48 See, e.g., Jane E. Kirtley, Transparency and Accountability in a Time of Terror: The Bush Administration's Assault on Freedom ofInformation, 11 COMM. L. & PoL'Y 479 (2006); Seth F. Kreimer, Rays of Sunlight in a Shadow "War": FOIA, the Abuses of Anti-Terrorism, and the Strategy of Transparency, 11 LEWIS & CLARK L. REv. 1141 (2007); see a/,so DO] Guide to the FOIA, supra note 8, at 808 ("Courts often take into account an agency's predictive judgment with respect to potential harm, particularly in cases in which dis­ closure would compromise national security. Conversely, courts have consistently held that 'a requester's opinion disputing the risk created by disclosure is not sufficient to preclude summary judgment for the agency when the agency possessing the relevant expertise has provided sufficiently detailed affidavits.'"); id. nn.304-05 (collecting cases). 49 David Carr, Let the Sun Shine, N.Y. TIMES, July 23, 2007, at Cl ("Four decades ago, President Lyndon B.Johnson reluctantly signed the Freedom oflnformation Act (F.0.1.A.) into law .... The law held that information gathered on our behalf-paid for and owned by you and me, at least theoretically-should be ours for the asking. But it hasn't worked out that way. While the mandate for disclosure is still there, it is overwhelmed by a Rube Goldberg apparatus that clanks and wheezes, but rarely turns up the data."). 50 For example, in response to a 2008 FOIA request regarding a Baltimore immi­ gration raid sent by the non-profit organization CASA de Maryland to Immigration and Customs Enforcement ("ICE"), a DHS component, ICE provided a "final re­ sponse" that disclosed just four pages of responsive records. See Response Letter from ICE to FOIA Request# 2009FOIA524 (Nov. 21, 2008), available at http://www.scribd. com/doc/34495971. After CASA de Maryland filed suit, see CASA de Maryland v. 2010] MAXIMIZING INFORMATION'S FREEDOM 399

exemptions, as it is not uncommon for agencies to decide, once in litigation, that they cannot carry their burden vis-a-vis certain ex­ emptions, and therefore choose not to defend them.51 Given the institutional pressures described above, perhaps this is not a surprising phenomenon. What it suggests, however, is that agencies use the willingness of a requester to litigate FOIA requests as a mechanism to distinguish between requests for which a cursory response is sufficient-either because the requester is satisfied with the response, or, perhaps more often, because the requester does not know the response was incomplete or cannot afford to contest it through litigation-from those that demand full compliance with the FOIA. The unfortunate lesson, then, is that unless the re­ quest is relatively narrow-and therefore easy to fulfill-litigation may be necessary to vindicate the access guaranteed by the FOIA.52

III. DRAFTING SUCCESSFUL FOIA REQUESTS With the shortcomings discussed above in mind, this Section outlines a few strategies for crafting FOIA requests to maximize the amount of information they will produce. This Section is primarily aimed at getting the most information out of the FOIA without having to resort to litigation, but most (if not all) of these strategies will also serve well those requesters who ultimately seek judicial review.

A. Knowing How to Ask Of all the lessons to be drawn from the realities described in

DHS, No. 08CV3249 (D. Md. filed Dec. 3, 2008), ICE produced nearly 1700 pages of records and 17 video recordings, including many records that shed significant light on possible government misconduct related to the raid. See N.C. Aizenman, Conflicting Accounts of an ICE Raid in Maryland, Wash. Post, Feb. 18, 2009, at Al; All Things Dmsid­ ered: Feds Allegedly Profiled Hispanic Day Laborers, NAT'L PuB. RAo10 Uan. 29, 2009), available at http://www.npr.org/templates/story/story.php?storyid=l00027476. Yale Law School Professor Michael Wishnie, who has taught three law school clinics that represent clients in submitting and litigating FOIA requests, confirms that, in his ex­ perience, this type of pre- and post-litigation disparity in FOIA responses is common­ place. Telephone Interview with Michael Wishnie, Clinical Prof. of Law, Yale Law School Quly 19, 2010). Professor Wishnie also confirms that agencies, which fre­ quently rely on paralegals to prepare FOIA responses, routinely take a "second look" at claimed exemptions with their legal counsel once litigation has begun, and on the advice of counsel often decide to disclose some records the agency had previously claimed fell under one or more exemptions. Id. 51 Telephone Interview with Michael Wishnie, Clinical Prof. of Law, Yale Law School Quly 19, 2010). 52 One might hope that the newly-created Office of Government Information .Ser­ vices will at least lessen the necessity of litigation-a possibility touched upon at the end of this Article. See infra notes 166-67 and accompanying text. 400 NEW YORK CITY LAW REVIEW [Vol. 13:387

Section II, perhaps the most important is that agencies simply do not have the resources to thoroughly process most requests. Thus, even though agencies are required to search everywhere that is rea­ sonably likely to have the records requested, 53 that seldom hap­ pens. This is especially true with respect to ambiguous and/ or broadly-written requests; what counts as a "reasonable search" in response to an ambiguous request is naturally open to interpreta­ tion. Therefore, although it may make intuitive sense to give the agency broad discretion in processing a FOIA request-after all, it should know best what records it has and how to search its record­ keeping systems-the institutional pressures previously discussed suggest that agency discretion will be utilized to minimize the agency's burden, which will usually mean a less-thorough response. For this reason, minimizing agency discretion is an important con­ sideration when crafting FOIA requests.54 In general, minimizing agency discretion means writing re­ quests as specifically and precisely as possible, such that as little as possible is left to interpretation. 55 There are two primary ways to do this. First, requests can be written to identify (by name, if possible) the exact records sought. For example, instead of asking Immigra­ tion and Customs Enforcement ("ICE") for "all manuals of policies and procedures related to immigration detention," a request ask­ ing for the specific manuals known to exist will get better results. But it is not likely that the requester will know all of the manuals in existence (a general problem discussed at length below). There­ fore, if the goal is to get all of the manuals, the best route is proba­ bly to request "all manuals of policies and procedures, including but not limited to [the names of the manuals of which the re­ quester is aware]." Although it is possible that the FOIA officer will simply send the specifically-named manuals, that would be the ab­ solute minimum that the requester would expect to receive; and if that is the entirety of what ICE sends in response, the requester has increased the odds of a successful appeal.

53 See supra note 38 and accompanying text. 54 One exception to the general rule that minimizing an agency's discretion will be detrimental to the interests of the requester is when copying and/or search fees are an issue; in that situation, a knowledgeable FOIA officer can reduce the expense to the requester without significantly sacrificing the information sought. That said, the 2007 amendments to the FOIA have diminished the likelihood that fees will be a major concern for requesters. See supra note 17 and accompanying text. 55 See Kreimer, supra note 24, at 1027 n.59 ("A precise inquiry is more likely to be correctly processed by harried civil servants at ground level; it is less subject to evasion by hostile ones, and it presents the requester with smaller costs of sorting signal from noise in the material provided."). 2010] MAXIMillNG INFORMATION'S FREEDOM 401

Another way of trying to minimize agency discretion in processing FOIA requests is to describe the search requested. Since a FOIA request need only "reasonably describe" the information sought, there is no reason why requesters cannot write FOIA re­ quests in terms of the searches that they would like performed, rather than to simply describe the information or particular records sought.56 This can be a particularly useful way to write a request if, for example, requesters know that they want all records in a particular database that mention a certain topic, but do not know the names of specific records or what format they will take. To write a request this way, keep in mind that to fulfill a request, FOIA officers generally do one or more of the following: conduct an electronic search of databases (and other digitized files); manu­ ally examine physical files; and request that individuals in other locations do one or both of the same.57 Therefore, if requesters know that they would want a particular database, physical file loca­ tion, or office searched, they are well advised to put that in the request.58 For example, using the same hypothetical as above, if a requester does not know the names of any of the government's immigration enforcement manuals, but does know where they can be accessed, the request can be written to ask for "all manuals of policies and procedures, including but not limited to those con­ tained in [name of database or those on file in a particular office]." In regards to electronic searches, requesters can go a step fur­ ther and specify particular keywords to use.59 If a FOIA request does not specify particular keywords, then whoever conducts the search will try to discern appropriate keywords-from the text of the request letter.60 Since requesters are often (though not always) in a better position to know what keywords are likely to produce rele­ vant records, it is a good idea to include them in the request letter.

56 Assuming, as with any other request, that it is not "unreasonably burdensome." See5 U.S.C. § 552(a)(3)(A). 57 See 5 U.S.C. § 552(a) (3) (D). 58 Thus, one could request "all records related to X contained in the following databases: . . . . " 59 See, e.g., Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). 60 With the advent of electronic databases, recent cases have emphasized the need for agencies to specify "the search terms and the type of search terms" used in con­ ducting search for records responsive to a FOIA request. Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999); see al5o Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) (search affidavit inadequate where it did not "identify[ ] the terms searched or explain [ ] how the search was conducted"); Dinisio v. FBI, 445 F. Supp. 2d 305, 312 (W.D.N.Y. 2006) (agency affidavit should set forth "the search terms and the type of search performed"). 402 NEW YORK CITY LAW REVIEW [Vol. 13:387

Keep in mind, however, that agencies can decline to use particular terms if they would return an unreasonably large amount .of non­ responsive information. 61 In addition to increasing the chances of a satisfactory re­ sponse, a benefit of drafting a request in terms of the particular search to be performed is that when requesters receive a response, they should have more information about the search conducted. No matter how a request is written, though, there is generally a trade-off between the breadth of the request and the time it takes the agency to fulfill it. Ifjust one piece of information in a broadly­ worded request is particularly time-sensitive, it may be faster to re­ quest that information separately from the rest. 62 This discussion of requesting particular records or asking that certain databases be searched presents an epistemological prob­ lem, for it seems to require, a priori, a certain amount of knowledge about the records sought or the recordkeeping systems to be searched. The next Section discusses how to acquire that knowledge.

B. Finding Information on Information In theory, it should be relatively easy to find out the primary sources of agency records. Since 1996, the FOIA has required each agency to "prepare and make publicly available upon request, ref­ erence material or a guide for requesting records or information from the agency ... including an index of all major information systems of the agency [and] a description of major information and record locator systems maintained by the agency."63 But like much about the FOIA, compliance with this requirement varies

61 See DO] Guide to the FOIA, supra note 8, at 77 n.205, 78 n.206 (collecting cases). 62 It may also qualify for expedited processing, which essentially puts it at the front of the line of requests to be processed. See supra note 14. But keep in mind that the FOIA permits agencies to promulgate .regulations that provide for the aggregation of "clearly related" requests submitted "by the same requester, or by a group of reques­ ters acting in concert, if the agency reasonably believes that such requests actually constitute a single request." 5 U.S.C. § 552 (a)(6)(B)(iv) (2006). 63 Electronic Freedom of Information Act ("E-FOIA") Amendments of 1996, Pub. L. No. 104-231, § 11, 110 Stat. 3048, 3054 (codified at 5 U.S.C. § 552(g) (2006)). The House Report accompanying the E-FOIA explained that: "The guide is intended to be a short and simple explanation for the public of what the Freedom of Information Act is designed to do, and how a member of the public can use it to access government records. Each agency should explain in clear and simple language, the types of records that can be obtained from the agency through FOIA requests ...." H.R. REP. No. 104-795, at 29-30 (1996). The Senate Report is consistent, and also makes clear that the compilation of this index is required and that it should be posted online. See s. REP. No. 104-272, at 11-12 (1996). 2010] MAXIMIZING INFORMATION'S FREEDOM 403 widely. The Department of Justice, for example, appears to be in substantial compliance, as it maintains a list of major information systems, listed alphabetically64 and by component.65 This list is use­ ful, but it could be much more so (both to requesters and to the agency), because few of the information systems' descriptions have any data on how they are searched or the kinds of records they produce.66 But at le

64 U.S. Dep't ofJustice, Alphabetical Listing ofJustice Department - Major Infor­ mation Systems, http://wwwJustice.gov/oip/misalphabetical.htm (last visited Nov. 8, 2010). 65 U.S. Dep't of Justice, Major Information Systems of the Department of Justice Arranged on a Component-by-Component Basis, http://wwwJustice.gov/oip/mis­ component.htm (last visited Nov. 8, 2010). 66 See, e.g., U.S. Dep't of Justice, U.S. Attorneys Office, Citizen Complaint Files, http://wwwJustice.gov/usao/reading_room/citizencomplaint.html (last visited Nov. 8, 2010) (instructing requesters to provide "the general subject matter of the docu­ ment requested or its file number"); U.S. Dep't of Justice, Nat'l Security Div., Office of Intelligence, Foreign Intelligence and Counterintelligence Records System, http:/ /wwwJustice.gov/nsd/foia/mis/ficrs.htm (last visited Nov. 8, 2010) (instructing that requests should "describe the records to which you seek access"); U.S. Dep't of Jus­ tice, Civil Rights Div., Case Management System, http://wwwJustice.gov/crt/foia/ma­ jor.php (last visited Nov. 8, 2010) (providing no information on how it is searched). 67 In a 2007 study of 149 agency websites, the National Security Archive found, inter alia, that "only 36 percent of agency sites include an identifiable list of major information systems." NAT'L SEc. ARCHIVE, supra note 27, at 13. Of the lists th3;t were available at that time, "many ... [were] incomprehensible or unhelpful." Id. at 1. 68 See, e.g., Gov'T AccouNTABILI1Y OFFICE, FREEDOM OF INFORMATION AcT: DHS HAs TAKEN STEPS TO ENHANCE hs PROGRAM, BUT 0PPORTUNmES EXIST TO IMPROVE EFFICIENCY AND CosT-EFFECTIVENESS 3-4 (Mar. 2009) (suggesting that DHS implement five practices on an agency-wide scale, most of them related to processing requests more quickly and more cheaply), available at http://www.gao.gov/new.items/ d09260. pdf. 69 See generally Kreimer, supra note 24 (defending the FOIA from its critics by dem­ onstrating how it must be assessed within a broader "ecology of transparency"). 404 NEW YORK CITY LAW REVIEW [Vol. 13:387 cus here on three sources of information that exist with regard to virtually all agencies.

i. FOIA Disclosures & FOIA Logs The first source is FOIA disclosures. Many agencies have train­ ing and reference materials describing agency databases and ex- . plaining how each is searched; 70 insofar as they are not readily available to the public, these records are themselves subject to the FOIA. Similarly, FOIA logs-a list of all requests, arranged chrono­ logically, that an agency received during a given fiscal year-are valuable sources of information as well. The logs generally contain information about the requester; a description of the request; the date the request was received and processed; a unique tracking number; and the final disposition of the request (i.e., granted in full, denied, etc.). This information seems mundane, but is actually quite valuable. Perhaps most usefully, FOIA logs demonstrate the sheer breadth of records that are available and how requests are commonly framed. The requesters' identities and the subjects of their requests can also be illuminating.71 The· logs also permit re­ questers to "piggyback" on prior requests by asking the agency to provide the same records it disclosed in response to a specific prior request made by someone else.72 By definition, the agency has al­ ready compiled and reviewed all of the records at issue, and so disclosing them again takes little additional effort.73 Partially for

70 See, e.g., IMMIGRATION AND CUSTOMS ENFORCEMENT, SECTION 287(G) TRAINING PROGRAM PARTICIPANT WORKBOOK, INTRODUCTION TO SOURCES OF INFORMATION (Nov. 2007), availab/,e at http://www.scribd.com/doc/21968668. 71 For example, during the 2008 presidential campaign, the Democratic National Committee (DNC) requested from ICE all records of communication involving Re­ publican presidential candidates John McCain and Fred Thompson. See Immigration and Customs Enforcement FOIA Log [hereinafter ICE FOIA Log] 203, 491, 625, 904 (Sept. 2007 through Nov. 2008), availab/,e at http://www.ice.gov/doclib/foia/icefoia­ logs/foialogseptember2007tonovember2008.pdf. Although the Republican National Committee (RNC) is not listed in the ICE FOIA Log as a requester, an individual did request copies of all correspondence to and from Barack Obama and Hillary Clinton in March 2008. See id. at 537, 557. A simple Google search of that requester's name reveals that he worked as a research analyst for the RNC when the requests were sent. 72 A piggyback request might say something like, "please provide all records dis­ closed in response to FOIA case number 504, which you received by your agency on November 17, 2008." For more on sending this type of request, see Freedom oflnfor­ mation Center, FOIA the FOIAs, http:/ /www.nfoic.org/foia-the-foias (last visited Nov. 8, 2010). 73 The 1996 amendments to the FOIA created the requirement that agencies maintain logs of requests, see Electronic Freedom of Information Act ("E-FOIA") Amendments of 1996, Pub. L. No. 104-231, § 4, 110 Stat. 3048, 3049 (codified at 5 U.S.C. § 552(a)(2) (2006)), primarily because of its time-saving benefits. See S. REP. No. 104-272, at 13 (1996) ("Since requests for records provided in response to prior 2010] MAXIMIZING INFORMATION'S FREEDOM 405 this reason-and also because they are frequent subjects of FOIA requests-a few agencies have begun posting their FOIA logs on­ line,74 and some departments have instructed all component agen­ cies to do so.75 At least one nongovernmental website maintains a collection of FOIA logs from a variety of departments and agencies. 76

n. Systems of Recor..ds Notices (SORNs) Under the Privacy Act77 every federal agency78 that maintains a recordkeeping system79 that is searchable by an individual's name or unique identifying number (like Social Security or alien num­ ber) must publish a notice in the Federal Register for each system of records, describing, inter alia, the types of records it has, how they are used, how long they are kept, and how to gain access to them. 80 These notices-required whenever a system is created or revised81-are called "System of Records Notices," also commonly referred to as "SORNs" or "Privacy Act Issuances." Pursuant to the Privacy Act, every two years the Office of the Federal Register com­ piles and publishes all SORNs in effect.82 The most recent Compi­ lation is posted on the Office of the Federal Register's website and is browsable by agency.83 To be sure, a large number of agency requests are more readily identified by the agency without the need for new searches, this list [FOIA logs] may assist agencies in complying with the FOIA time limits. This should also reduce costs to agencies in preparing responses. This does not, however, relieve agencies of their obligations to conduct an adequate search for, or justify with­ holding of, responsive records as required by the FOIA."). 74 See, e.g., ICE FOIA Log, supra note 71. 75 See, e.g., Memo from Mary Ellen Callahan, DHS Chief FOIA Officer and Chief Privacy Officer, Regarding Proactive Disclosure and Departmental Compliance with Subsection (a) (2) of the Freedom of Information Act (FOIA) (Aug. 26, 2009) at 2, available at http://www.dhs.gov/xlibrary/assets/foia/foia_proactive_disclosure. pdf ("As Chief FOIA Officer, I direct the Department and its components to include the following categories of records on their agency websites and link them to their respec­ tive electronic reading rooms: .... 5. FOIA logs."). 76 See, e.g., GovernmentAttic.org (click on "FOIA LOGS" at top of page) (last vis­ ited Nov. 8, 2010). 77 Privacy Act of 1974, 5 U.S.C. § 552a (2006). 78 The Privacy Act defines "agency" the same as the FOIA does. See 5 U.S.C. § 552a(a) (1); see also supra note 11 (discussing the FOIA definition of "agency"). 79 See5 U.S.C. § 552a(a)(4) (defining "record");§ 552a(a)(5) (defining "system of records"). 80 See 5 U.S.C. § 552a(e) (4). See general!J Office of the Federal Register, Privacy Act Issuances, http://federalregister.gov/Privacy/about.aspx (lastvisitedJuly 17, 2010). 81 5 U.S.C. § 552a(e)(4). 82 Id. § 552a(f). 83 Office of the Federal Register, Privacy Act Issuances: Browse the 2007 Compila­ tion, http://federalregister.gov/PrivacyI AGENCIES.aspx (last visited Nov. 15, 2010). Previous editions of the Compilation are available (and searchable) on the Govern- 406 NEW YORK CITY IA W REVIEW [Vol. 13:387 recordkeeping systems will not have a SORN, such as those that are organized by date or event, or that do not have records on citizens or lawful permanent residents.84 But depending on the type of in­ formation sought, SORNs can be useful in ascertaining what re­ cordkeeping systems exist, the kind of records each system contains, and how each is searched.

m. FOIA Litigation Materials By far the most useful resources for understanding agencies' recordkeeping systems are the documents agencies file once they are forced to defend FOIA decisions in court. FOIA lawsuits are nearly always resolved on motions for summary judgment,85 on which the agency must carry two burdens: first, the agency must prove that any claimed exemptions were properly applied;86 and second, that it "conduct[ed] a search reasonably calculated to un­ cover all relevant documents."87 In order to c;arry its twin burdens, agencies typically submit one or more "relatively detailed and non­ conclusory"88 affidavits from the government official(s) personally involved in applying the exemption(s) and conducting the search(es).89 The affidavits' explanations for why certain exemp- ment Printing Office's site at http://www.gpoaccess.gov/privacyact/index.html (last visited Nov. 15, 2010). 84 See, e.g., Privacy Act of 1974, 5 U.S.C. § 552a(a) (2) (defining "individual" as a "citizen of the United States or an alien lawfully admitted for permanent residence"). 85 See DO] Guide to the FOIA, supra note 8, at 803 ("Summary judgment is the proce­ dural vehicle by which nearly all FOIA cases are resolved ...."); see also LITIGATION UNDER THE FEDERAL OPEN GoVERNMENT LAws, supra note 4, at 365-68 (discussing considerations to take into account when considering the timing of filing a motion for summary judgment). For a critique of deciding virtually all FOIA cases on motions for summary judgment, see Rebecca Silver, Comment, Standard of Review in FOIA Ap­ peals and the Misuse of Summary Judgment, 73 U. Cm. L. REv. 731 (2006). 86 See U.S. Dep't ofJustice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (holding that the burden of proving that withholding the records is not improper falls on the agency). If the reviewing court "find[s] either that the ratio­ nale of the particular exemption did not apply to these documents, or that the agency had failed to demonstrate the prerequisites to proper invocation of the exemption," it may order the agency to release the records. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 858 (D.C. Cir. 1980). 87 Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (internal citations omitted); see also Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (" [T] he agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." (internal citations omitted)). 88 SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal cita­ tion omitted); see also Nat'! Parks & Conservation Ass'n v. Kleppe, 547 F.2d 673, 680 (D.C. Cir. 1976) (holding that conclusory and generalized allegations are unaccept­ able as means of sustaining agency burden). 89 See Camey v. U.S. Dep't ofjustice, 19 F.3d 807, 812 (2d Cir. 1994) ("In order to 2010] MAXIMIZING INFOR.MA TION'S FREEDOM 407 tions were applied have relatively little value to non-parties, as they are usually too case-specific to be of general application. In con­ trast, the affidavits' descriptions of the searches performed for records responsive to the FOIA requests are a goldmine for future requesters, even those not involved in the litigation. In regards to the search, agency affidavits in support of sum­ mary judgment must describe the electronic recordkeeping sys­ tems and physical file locations searched, as well as how they were searched.90 If electronic records (such as databases and email) were searched, agency affidavits are required to explain how the records are organized (i.e., by name, topic, date, etc.) and what search terms or keywords were used to search for responsive records. 91 If the agency chose not to search in certain locations (such as field offices) or databases, it must explain why those addi­ tional searches were either impractical or unlikely to produce re­ sponsive records.92 In sum, agency affidavits in support of summary judgment must include detailed information about the record­ keeping systems to which the agency has access; how those systems are searched; and what kinds of records they contain. In litigation, this information is necessary to permit the court to evaluate the reasonableness of an agency's search,93 but it is also prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA."). 90 See Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) ("[A]gency affidavits that 'do not denote which files were searched or by whom, do not reflect any systematic approach to document location, and do not provide infor­ mation specific enough to enable [the requester] to challenge the.procedure utilized' are insufficient." (internal citations omitted)). 91 See Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (search affidavit inade­ quate where it did not "identify[] the terms searched or explain[] how the search was conducted"); Ogl.esby, 920 F.2d at 68 ("A reasonably detailed affidavit, setting forth the search terms and the type of search performed ... is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment."). 92 See Church of Scientology v. IRS, 792 F.2d 146, 151 (D.C. Cir. 1986) (discussing how agency affidavits should "identify the searched files and describe at least gener­ ally the structure of the agency's file system which makes further search difficult."), affd, 484 U.S. 9 (1987); see, e.g., Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) ("[A]n agency 'cannot limit its search to only one record system if there are others that are likely to turn up the information requested.'" (quoting Ogl.esby, 920 F.2d at 68)). 93 If an affidavit is inadequate, courts routinely order the agency to submit a more­ detailed supplemental affidavit. See, e.g., Penny v. U.S. Dep't ofJustice, 662 F. Supp.2d 53, 57-58 (D.D.C. 2009); Consumer Fed'n of Am. v. USDA, 539 F. Supp. 2d 225, 228 (D.D.C. 2008); Santos v. DEA, 357 F. Supp. 2d 33, 37-38 (D.D.C. 2004). See also Weis- 408 NEW YORK CITY LAW REVIEW [Vol. 13:387 of substantial value to prospective FOIA requesters. With the de­ scriptions contained in these affidavits, requesters can draft far more precise FOIA requests, which can decrease processing time and increase the odds of receiving the information sought. Moreo­ ver, when agencies do respond to the requests, the requesters will be in a much better position to evaluate those responses. Finally, requesters who end up litigating their own requests can use agency affidavits from other cases to demonstrate that the agency's search in the instant case was not adequate.94 Without this type of infor­ mation, FOIA plaintiffs are left to speculate that more information should have been produced or that some other source of records must exist, which is insufficient to create an issue of material fact about the reasonableness of the agency's search.95 Unfortunately, agency affidavits are not easily accessible. In fact, currently there is only one place where these affidavits are available-PACER, the federal judiciary's system for public, elec­ tronic access to docket sheets and case filings. 96 Although PACER is far from user-friendly or search-optimized,97 it has greatly en- berg v. Dep't of Justice, 627 F.2d 365, 369 (D.C. Cir. 1980) (discussing the require­ ments for an affidavit describing an agency's search for responsive records). 94 Imagine, for example, that an agency affidavit from a prior case stated that database X contains records of type Y. lf the plaintiff in the subsequent case requested records of type Y, but the agency did not search database X, the plaintiff can use the agency affidavit from the prior case to demonstrate that the agency's search was not adequate, as it failed to search a database it has previously identified as reasonably likely to contain the type of record requested. 95 See, e.g., Steinberg v. Dep't ofJustice, 23 F.3d 548, 552 (D.C. Cir. 1994) ("[M]ere speculation that as yet uncovered documents may exist does not undermine the find­ ing that the agency conducted a reasonable search." (internal citation omitted)); Concepcion v. FBI, 606 F. Supp. 2d 14, 30 (D.D.C. 2009) ("[P]laintiffs speculation as to the existence of additional records, absent support for his allegations of agency bad faith, does not render the searches inadequate."); Bay Area Lawyers Alliance for Nu­ clear Arms Control v. Dep't of State, 818 F. Supp. 1291, 1295 (N.D. Cal. 1992) ("Plain­ tiff's incredulity at the fact that no responsive documents were uncovered ... does not constitute evidence of unreasonableness or bad faith."). 96 PACER stands for "Public Access to Court Electronic Records." PACER, which can be accessed at http://www.pacer.gov, is run by the Administrative Office of the United States Courts, and was authorized in 1989 through the creation of the ''.Judici­ ary Automation Fund." See Pub. L. No. 101-162, § 404, 103 Stat. 988, 1013-15 (1989) (codified at 28 U.S.C. § 612 (2006)). The Fund was renamed the "Judiciary Informa­ tion Technology Fund" in 1996. See Pub L. No. 104-106, § 5602(b) (2), 110 Stat. 186, 700 (1996). For critiques of PACER's current limitations, see Ian Gallacher, Cite Un­ seen: How Neutral Citation and America's Law Schools Can Cure Our Strange Devotion to Bibliographical Orthodoxy and the Constriction of open and Equal Access to the Law, 70 AL­ BANY L. REv. 491, 514-21 (2007), and Lynn M. LoPucki, Court-System Transparency, 94 IOWA L. REv. 481 (2009). 97 See LoPucki, supra note 96, at 485-89 (suggesting technological reforms to PACER to achieve greater transparency). 2010] MAXIMIZING INFORMATION'S FREEDOM 409

hanced court access and opened new avenues for legal research. 98 Most relevant for present purposes, it permits individuals to download (for a fee) filings from most civil cases initiated in the last several years, including agency affidavits filed in support of summary judgment motions in FOIA cases.99 Unfortunately, unlike with FOIA logs,100 as of this writing, this author could not locate any organization or individual that collects and posts these affidavits online,101 leaving PACER, with all its shortcomings, as the only option currently available.102

98 See generally, e.g., Peter W. Martin, The New "Public Courts": Online Access to Court Records - From Documents to Data, Particulars to Patterns, 53 VILL. L. REv. 855 (2008); Margo Schlanger & Denise Lieberman, Using Court Records for Research, Teaching, and Policymaking: The Civil Rights Litigation Cl.earinghouse, 75 UMKC L. REv. 155, 160 (2006). A recent study suggests that only a fraction of opinions found on PACER are included in the Lexis and Westlaw databases. Brian N. Lizotte, Publish or Perish: The El.ectronic Availability of Summary judgments by Eight District Courts, 2007 Wis. L. REv. 107, 108-9 (2007) (finding that only 41%of607 cases terminated by a grant of summary judgment were available on Lexis or Westlaw); see also Hillel Y. Levin, Making the Law: Unpublication in the District Courts, 53 V1LL. L. REv. 973 (2008). 99 Finding these cases on PACER can be done in a couple of different ways. First, PACER permits users to search the civil cases in its "U.S. Party Case Index" by the "nature of suit." See Frequently Asked Questions, http://www.pacer.gov/psc/hfaq.html (follow "CM/ECF" tab and search under "General," "Case Related," and "Access Re­ lated" sub-tabs) (last visited Nov. 16, 2010). Thus, one could search for all district court cases with the FOIA's "nature of suit" code filed within a given timeframe and against a particular defendant agency. From there, however, each returned case would have to be examined manually to determine its relevancy, which can be both tedious and expensive. A list of these codes is available at http://www.pacer.govI doc­ uments/ natsuit.pdf (last visited Nov. 18, 2010). The code for FOIA suits is 895. Id. at 3. When searching by defendants, keep in mind that the proper defendant in a FOIA action against an agency that is a component of an Executive-branch department is the department itself. Thus, if a FOIA suit is about a violation by Customs and Border Patrol (CBP), a component agency of the Department of Homeland Security (DHS), the named defendant should be DHS. See LITIGATION UNDER THE FEDERAL OPEN Gov­ ERNMENT LAws, supra note 4, at 359. The other option for finding FOIA cases is to consult the annual list published by the Department of Justice of all FOIA cases in which a decision was rendered in the preceding year. That list contains the court, docket number, and disposition of each case. Unlike the PACER search described above, this list only contains cases in which a decision was rendered. See U.S. Dep't of Justice, LIST OF FOIA CAsES IN WHICH A DEcrsroN WAS RENDERED IN 2008, supra note 42. The DOJ also publishes a monthly summary of FOIA decisions in its newsletter, FOIA PosT, which is available at http:/ /www.usdoj.gov/oip/foiapost/mainpage.htm (last visited Nov. 17, 2010). After weeding out the cases that were dismissed without a judgment being entered (which are noted in the list), the remaining cases would be likely candidates to have agency affidavits accessible through PACER. 100 See supra note 76 and accompanying text. 101 An exception is INA287.org, which has a collection of approximately 25 affida­ vits from FOIA cases, most from DHS component agencies. See FOIA, INA287.org, http:/ /ina287.org/foia (last visited Nov. 18, 2010). 102 One might try requesting the affidavits through FOIA, though it is not clear what effect the fact that the affidavits are already in the public domain would have (if 410 NEW YORK CITY LAW REVIEW [Vol. 13:387

C. Litigating FOIA Requests: Discovery There is not sufficient time or space in this Article for a thor­ ough treatment of litigating FOIA requests, 103 and so this subsec­ tion is confined to one often-overlooked item directly related to the previous discussion: obtaining discovery in FOIA litigation. As already discussed, most FOIA cases are resolved on summary judg­ ment motions, in which the defendant agency submits affidavits to substantiate its claims that all exemptions have been properly ap­ plied and that it has conducted a reasonable search. Each FOIA exemption has its own standard that has been developed through legislation and case law. 104 The requester is at a disadvantage when resisting summary judgment as to the application of the statutory exemptions, as the-applicability of exemptions generally are depen­ dent on the content of the requested records themselves-content that, by definition, has been denied to the requester. Given the informational asymmetry between the requester and the defendant agency, often the most a requester can do is to insist that the agency affidavit in support of summary judgment contain all the factual averments necessary to meet each exemption's test. That said, even when agencies are capable of legally justifying an exemp­ tion, they sometimes fail to do so in the affidavits they submit.105 If any). For example, in an unpublished opinion, the Seventh Circuit affirmed a district court decision dismissing a FOIA complaint because the request asked "only [for] material that would be available in the public domain" -in this case, the Federal Reg­ ister-which the court said was not covered by the FOIA. Perales v. DEA, 21 F. App'x 473, 475 (7th Cir 2001). Cf Prows v. U.S. Dep't of Justice No. 87CV1657-LFO, 1989 WL 39288, at *4 (D.D.C. Apr. 13, 1989) (denying a fee waiver for the reproduction of 564 pages of court records because "the release of records already in a court's public files ... would not 'contribute significantly to public understanding of the operations or activities of the government.'" (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). 103 The gold standard on this topic is LITIGATION UNDER TI-IE FEDERAL OPEN Gov­ ERNMENT LAws, supra note 4, which is published approximately every two years by the Electronic Privacy Information Center ("EPIC"). For a more Government-friendly view of what the FOIA requires, see DO] Guide to the FOIA, supra note 8. 104 See generally LITIGATION UNDER TI-IE FEDERAL OPEN GoVERNMENT LAws, supra note 4, at 49-252 (discussing exemptions); DO] Guide to the FOIA, supra note 8, at 141-669 (same). 105 For example, in Elliott v. U.S. Department of Agriculture, No. 06-240 UDB), 2007 WL 1302588, at *5 (D.D.C. May 2, 2007), the agency sought to withhold blueprints under the so-called "high 2" exemption 2, 5 U.S.C. § 552(b) (2), which requires show­ ing that the withheld information is both "predominantly internal" to the agency and that disclosing it would risk circumvention of agency statutes or regulations. See Schil­ ler v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992) (discussing the "high 2" exemp­ tion). In Elliott, the court denied summary judgment because, inter alia, the declarations did not say which agency statutes or regulations would be at risk of cir­ cumvention if the blueprints were released. See 2007 WL 1302588, at *5. As is often the case, though, the agency was permitted later to renew its motion for summary 2010] MAXIMIZING INFORMATION'S FREEDOM 411

agency affidavits omit the facts necessary to meet one or more ele­ ments of an exemption's test, the judge has the discretion to order supplemental affidavits, an in camera review, or that the agency sim­ ply disclose the information.106 As previously mentioned, requesters can use affidavits from other cases to create a disputed issue of material fact with regard to the adequacy of the agency's search. Moreover, since the suffi­ ciency of an agency's search is an issue of fact, it is possible to ob­ tain discovery on the relevant factual issues, such as the agencies' recordkeeping systems and the specific searches that were con­ ducted in response to the request being litigated.107 Depending on the subject of the FOIA request, discovery may be appropriate on what records ought to exist and where they ought to be stored, 108 or even why the defendant agency has taken so long to process the request.109 Requesters should be aware, however, that courts are reluctant to permit FOIA plaintiffs to conduct discovery unless and until the agency affidavits have proven inadequate or there is a spe­ cific showing of bad faith on the part of the agency.110 Nonetheless, judgment; in this case, the agency submitted three additional declarations, which were far more detailed and cited to specific statutes, regulations, and policies. See Mot. for Summ.J. for Def., Elliott v. U.S. Dept. of Agric., No. 06CV240 QDB) (D.D.C. Aug. 16, 2007) (docket entry no. 37). The court cited them extensively in granting the summary judgment to the agency. See Elliott v. U.S. Dept. of Agric., 518 F. Supp. 2d 217, 221 (D.D.C. 2007) (holding that the blueprints were properly withheld under the "high 2" exemption). 106 See, e.g., Halpern v. FBI, 181 F.3d 279, 295 (2d Cir. 1999); 107 See, e.g., Local 3, Int'! Bhd. of Elec. Workers, AFL-CIO v. NLRB, 845 F.2d 1177, 1179 (2d Cir. 1988) ("Discovery in a FOIA action is permitted in order to determine whether a complete disclosure of documents has been made and whether those with­ held are exempt from disclosure."); Giza v. Sec'y of Health, Educ. & Welfare, 628 F.2d 748, 751 (1st Cir. 1980) ("To the extent that discovery is allowed in an FOIA action, it is directed at determining whether complete disclosure has been made, e. g., whether a thorough search for documents has taken place, whether withheld items are exempt from disclosure."); El Badrawi v. Dep't of Homeland Sec., 583 F. Supp. 2d 285, 321-22 (D. Conn. 2008) (permitting plaintiff to depose employees of five different DHS component agencies regarding the sufficiency of their searches after the agency affidavits were inadequate); Murphy v. FBI, 490 F. Supp. 1134, 1136 (D.D.C. 1980) ("It is beyond question that discovery is appropriate" in a FOIA case if the govern­ ment's dispositive motion leaves a factual issue concerning the adequacy of the agency's search); DO] Guide to the FOIA, supra note 8, at 763 n.171 (collecting cases). 108 See, e.g., El Badrawi, 583 F. Supp. 2d at 322 (permitting plaintiff to depose the agency employee "most knowledgeable about the whereabouts of the missing . . . file."). 109 See, e.g., Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Justice, No. 05CV2078, 2006 WL 1518964, at *3-4, 6 (D.D.C.June 1, 2006). 110 See, e.g., Carney v. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) ("Affidavits submitted by an agency are accorded a presumption of good faith, ... [and] accord­ ingly, discovery relating to the agency's search and the exemptions it claims for with­ holding records generally is unnecessary if the agency's submissions are adequate on 412 NEW YORK CITY LAW REVIEW [Vol. 13:387 permitting discovery is well within the district court's discretion, 111 and so FOIA plaintiffs should not hesitate to seek discovery from the agency-which, after all, "has an effective monopoly on the rel­ evant information."112 Absent evidence of an agency's bad faith, 113 the best route for a FOIA plaintiff to secure discovery on the ade­ quacy of an agency's search is probably by: (1) drafting relatively precise requests that name specific documents requested and/ or locations to search;114 and (2) learning enough about the agency's recordkeeping systems and what they should contain115 such that the plaintiff can demonstrate that it was unreasonable for the agency to refuse to search a specific location, or that the failure to produce a particular record is indication that the agency did not conduct a reasonable search.11 6

JV. INFORMATION FEDERALISM No discussion of how to leverage other sources of information to maximize the efficacy of the FOIA would be complete without at least a few words about the 51 other freedom of information ("FOi") laws in effect in the United States: FOIA's state-law and

their face."); DO] Guide to the FOIA, supra note 8, at 810 ("Discovery is the exception, not the rule, in FOIA cases); id. at n.311 (providing examples of cases that demon­ strate the reluctance of courts to allow discovery in FOIA cases); see also Local Civil Rule 26.2 of the District Court for the District of Columbia (exempting FOIA cases from discovery requirements, subject to the court ordering otherwise); but cf. Halpern v. FBI, 181F.3d279, 295 (2d Cir. 1999) ("[T)he good faith presumption that attaches to agency affidavits only applies when accompanied by reasonably detailed explana­ tions of why material was withheld."). For more on the presumption of good-faith presumption afforded agency affidavits, see DO] Guide to the FOIA, supra note 8, at 762 n.170 (collecting cases). 111 See, e.g., Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 317 (D.C. Cir. 2006) (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) and Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993)). 112 Rayv. Turner, 587 F.2d 1187, 1218 (D.C. Cir. 1978) (explaining, in a FOIA case, that "[i] nterrogatories and depositions are especially important in a case where one party has an effective monopoly on the relevant information."). 113 See Assassination Archives & Research Ctr. v. CIA, 177 F. Supp. 2d l, 8 (D.D.C. 2001) ("[A] mere assertion of bad faith is not sufficient to overcome a motion for summary judgment."). 114 See supra Section III.A. 115 See supra Section III.B. 116 As the D.C. Circuit put it in an oft-cited case, "[I]f, in the face of well-defined requests and positive indications of overlooked materials, an agency can so easily avoid adversary scrutiny of its search techniques, the [Freedom of Information] Act will inevitably become nugatory." Church of Scientology of Washington v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979). See also Spannaus v. CIA, 841 F. Supp. 14, 16 (D.D.C. 1993) ("If the requester produces countervailing evidence placing the sufficiency of the identification or retrieval procedures genuinely in issue, summary judgment is inappropriate."). 2010] MAXIMIZING INFORMATION'S FREEDOM 413

District of Columbia counterparts.117 Although state FOI laws go by a multitude of names-the Public Records Law, 118 the Open Records Act, 119 the Sunshine Law, 120 and many more121-in most respects they are quite similar to the federal FOIA. In addition to a shared purpose of providing access to governmental information, many state FOI laws were explicitly modeled on the federal FOIA and therefore track its provisions quite closely. 122 Virtually all share at least the broad contours of the federal FOIA, in that records are presumed to be open to the public; subject to specific exemptions that are to be narrowly construed; with a private right of action to contest denials in state court; where, in the absence of applicable precedent from their own FOI laws, state judges will frequently look to how federal· courts have construed analogous provisions of the federal FOIA.123

117 Hereinafter, all references to "states" or "state FOi laws" are meant to encom­ pass the District of Columbia and its Freedom of Information Act, D.C. CODE §§ 2-531 through 2-540 (2006). Also worth noting, though well beyond the scope of this Arti­ cle, is that several municipalities have enacted sunshine ordinances governing access to information held by municipal entities. See, e.g., Sunshine Ordinances, FIRST AMEND­ MENT COALITION, http:/ /www.firstamendmentcoalition.org/ category/resources/sun­ shine-ordinances (last visited Dec. 2, 2010) (discussing seven_sunshine ordinances in California); Kate Gardiner, Sunshine Ordinance Passes, CmCAGOIST (Apr. 22, 2009) (dis­ cussing passage of Chicago's Sunshine Ordinance). 118 Arizona Public Records Law, Aruz. REv. STAT. §§ 39-121 to 39-126 (2009). 119 Kentucky Open Records Act, Kv. REv. STAT. ANN. §§ 61.870-61.884 (2009). 120 Missouri Sunshine Law, Mo. REv. STAT. §§ 610.010-610.225 (2009). Missouri also has a Public Records Law (Public and Business Records, Mo. REv. STAT. §§ 109.180-109.190 (2009)), but it is more limited than the Sunshine Law and, gener­ ally speaking, whatever can be obtained through the Public Records Law can also be obtained through the Sunshine Law. See, e.g., Benjamin A. Lipman & Evan Z. Reid, open Gov't Guide: Missouri, REPORTERS COMM. FOR FREEDOM OF THE PRESS (2006), avail­ abl.e at http://www.rcfp.org/ogg/index.php?op=browse&state=MO. 121 See, e.g., Connecticut Freedom oflnformation Act, CONN. GEN. STAT.§§ 1-200 to 1-259 (2009); Hawaii Uniform Information Practices Act (UIPA), HAw. REv. STAT. §§ 92F-l to 92F-19 (2008); Maryland Public Information Act, MD. ConE ANN., STATE Gov'T §§ 10-611 to 10-630 (2009); Rhode Island Access to Public Records Act, R.I. GEN. LAws §§ 38-2-1 to 38-2-15 (2008). 122 However, a few states' FOi laws actually predate the federal FOIA, some by a considerable margin. For example, the precursor to Arizona's current Public Records Law was enacted in 1901, when Arizona was still a territory. See Daniel C. Barr & Amy Oliver, Open Gov't Guide: Arizona, REPORTERS CoMM. FOR FREEDOM OF THE PRESS (2006), availabl.e at http://www.rcfp.org/ogg/index.php?op=browse&state=AZ (fol­ low "foreword" hyperlink). 123 See, e.g., Times Mirror Co. v. Super. Ct., 813 P.2d 240, 247 (Cal. 1991) ("The legislative history and judicial construction of the FOIA [ ] serve to illuminate the interpretation of its California counterpart." (citation and quotation marks omitted)); Roulette v. Dep't of Central Mgmt. Serv., 490 N.E.2d 60, 64 (Ill. App. Ct. 1986) (not­ ing that the legislative history indicates that "case law construing the Federal statute should be used in Illinois to interpret our own FOIA.''); Police Patrol Sec. Sys. v. Prince George's Cnty., 838 A.2d 1191, 1203 n.8 (Md. 2003) ("(T]he historical devel- 414 NEW YORK CITY LAW REVIEW [Vol. 13:387

Despite generally1 similar goals and heritage, however, there are some significant differences between the federal FOIA and its state-law analogues (as well, of course, amongst the various state laws)-differences that can be leveraged to amplify the utility of each. A comprehensive treatment of state FOi laws is far beyond the scope of this Article, 124 but three of the most significant differ­ ences between the FOIA and state FOi laws merit discussion.

A. State FOI Enforcement As with the federal FOIA, state FOi laws frequently fail to de­ liver on what they promise. Like the FOIA, most are chronically under-enforced,125 and many states' statutes provide relatively mild sanctions for noncompliance that are simply inadequate to deter violations.126 A related problem, seemingly more prevalent at the sub-federal level, is widespread ignorance on the part of govern­ ment officials as to what the state FOi law requires. Most state and local agencies receive so few requests that they are unlikely to have even a single employee that has been fully trained on FOl.127 This opment of portions of the MPIA parallel those of its federal counterpart. Under these circumstances, the interpretation of the FOIA by federal courts is persuasive.") 124 See generally open Gov't Guide, REPORTERS COMM. FOR FREEDOM OF THE PRESS (2006), availabl,e at http://rcfp.org/ogg/index.php. In addition to state-by-state FOi guides, the online version permits easy comparisons of state FOi laws on a number of features, such as time frames for responses, fees, and enforcement mechanisms. Id. The National Freedom of Information Coalition also has state-by-state information on its website. See State FOi Laws, NAT'L FREEDOM OF INFO. CoAL., http:/ /www.nfoic.org/ state-foi-laws (last visited Dec. 2, 2010). See a~o]AMES T. O'REILLY, 2 FEDERAL INFORMA­ TION DISCLOSURE Ch. 27 (3d ed. 2000) (discussing state FOi laws); Sunshine Review - United States, http://sunshinereview.org (same); WikiFOIA, http://wikifoia.pb works.com (same). 125 See Robert Tanner, On Sunshine Laws, Governments Talk Loudly but Stick Is Very Rarely Used, Assoc. PRESS, Mar. 11, 2007 ("Though laws in every state say government records and meetings must be open to all, reality often falls far short: Laws are sporad­ ically enforced, penalties for failure to comply are mild and violators almost always walk away with nothing more than a reprimand, an Associated Press survey of all 50 states has found."), available at http://www.ap.org/FOl/foi_031107a.html. 126 A 2007 study by the Better Government Association ("BGA") and the National Freedom of Information Coalition ("NFOIC") graded the 50 states' FOi statutes on five criteria related to responsiveness (response times; appeals process; expedited re­ view; availability of attorney's fees and costs to a prevailing party; and the availability and severity of possible sanctions against recalcitrant agencies). Thirty-eight states re­ ceived an "F," four received a "D"; six a "C"; and two states (Nebraska and New Jersey) received the highest grade given, a "B." See BGA & NFOIC, States Failing FOi Respon­ siveness, BGA & NFOIC (2007), available at http:/ /www.nfoic.org/bga. See a~o Results and Criteria of BGA/NFOIC Survey, BGA & NFOIC (2007), available at http:/ /www. nfoic.org/uploads/resultsl.pdf (showing state-by-state results). 127 See, e.g., &cords Granted Only Half the Time, OPEN REc. REPORT: SPECIAL EDmON (Ohio Coal. for Open Gov't, Columbus, OH), Spring/Summer 2004, available at 2010] MAXIMIZING INFORMATION'S FREEDOM 415 lack of familiarity essentially requires the requester to educate pub­ lic officials as to what the law requires of them. FOi requests to state and local agencies can also involve deli­ cate political considerations that are generally absent in the federal FOIA process. At the federal level, the number of FOIA requests agencies receive and the typical distance between the requester and the agency provide requesters a measure of anonymity. Moreo­ ver, federal FOIA officers may be completely uninvolved with the subject matter of the request; may not identify with the agency's underlying mission; and are significantly less likely than their state­ law counterparts to know the personnel in the agency's other of­ fices that are encompassed by the FOIA request. While this combi­ nation of factors can result in a relatively impersonal experience, it does mitigate the possibility that agencies will base their decisions on the identity of the requester, the subject matter of the request, or the possibility that the requested records might embarrass a par­ ticular person within the agency. The situation is entirely different with regard to most agencies subject to state FOi laws. Here, the FOi process, even absent litiga­ tion, can be both personal and contentious. First, and most obvi­ ously, 'there is a greater likelihood that the agency personnel

http://www.ohionews.org/pdf/ocogspring2004se.pdf; Deborah Buckeley, Survey: Lit­ tl.e Regard Shown Concerning Free Infrmnation, SUNDAY Aovoc. (Baton Rouge, La.), Dec. 30, 2001, at 3A ("Of the 36 counties covered in a survey organized by The Associated Press, fewer than half fully complied"); Jim Davenport, Many Officials Dodge Survey About Public's Right to Know: S. Carolina Effort Tests Compliance, AucusTA CHRON. (Ga.), Nov. 14, 2005 ("Ask many city or county officials in South Carolina about open meet­ ings and open records, and you're likely to be met with fear or suspicion; and in some places, officials are seemingly ignorant of the requirements of the law."); Brendan Farrington, State's Open Record Laws Often Violated, FLA. TIMES-UNION, Nov. 22, 2008 (reporting that a random test by the Florida Society of Newspaper Editors of 163 public agencies in 56 counties resulted in "[a]lmost 43 percent of the offices fail[ing] to comply with the [state's FOi] law."); Jon Sarche, Public Infrmnation Not Always Made Availabl.e, Shows Survey, PUEBLO CHIEFTAIN (Colo.), Oct. 13, 2006 ("[O]btaining records can be an intimidating and disheartening process for members of the pub­ lic. "); Review: Illinois State Police Routinely Reject Requests for Public Infrmnation, Assoc. PREss, Apr. 23, 2007, availabl.e at http://www.ap.org/foi/foi_050507a.html (reporting that of the approximately 700 requests the state police received in 2006, 175 were granted; 146 were denied; for 81 requests, none of the requested records were lo­ cated; and for the remaining (nearly 300) requests, there is no record that the state police ever responded at all); Kendal Weaver, open Records, Closed Doors, MOBILE REc. (Ala.), June 1, 2003, at Al ("The survey found widespread ignorance of Alabama's open records law and related opinions, with government officials frequently saying they were unaware of statutes and legal standards. Others said members of the public rarely ask for records."). The NFOIC maintains an incomplete list of formal and infor­ mal audits of state FOi compliance on its website. See Freedom of Information Center~ Audits and Open Records Surveys, http:/ /www.nfoic.org/audits-and-open-records-surveys (last visited July 17, 2010). 416 NEW YORK CITY LAW REVIEW [Vol. 13:387 handling the FOi request will know the requester. While many state FOi laws prohibit conditioning responses on the identity of the requester, 128 it would be unduly optimistic of human nature to think that the identity of the requester never affects (for better or worse) the manner in which a request is handled. At times, this can have clear advantages-if, for example, the relationship is a good one and the object of the request is uncontroversial. But for many agencies, FOi requests are perceived with suspicion or outright hostility, 129 especially if the request is from particular individuals or community groups known to be opposed to some aspect of the agency's policies. Moreover, unlike at the federal level, where the distance (physical and metaphorical) between the FOIA officers processing the request and the employees who created or maintain the responsive records to the request can be advantageous to the requester, the FOi decisionmaker at the state and/ or local level often is the target of the FOi request. This lack of impartiality can create obvious hurdles for obtaining information that would be embarrassing or otherwise damaging.130 In sum, FOi requests to state and local officials or entities can be antagonistic affairs, with officials often reacting suspiciously to what they may perceive-fairly or not-as acts of aggression, which increases the likelihood, necessity, and expense of litigation.131

128 See, e.g., Maryland Public Information Act, Mo. CooE ANN., STATE Gov'T § 10- 614(c) (1) (2009). 129 See Davenport, supra note 127 (discussing suspicious reactions from public offi­ cials when asked for public records); Farrington, supra note 127 (same). 130 This can partly explain why many state officials have fought to keep email from being considered public records reachable by FOi laws. See Tom Hester, Jr., States Fight to Keep Officials' E-mail From Open-Records Inspection, Assoc. PRESS, Mar. 16, 2008, availab/,e at http://www.ap.org/FOI/foi_031608a.html; Peter S. Kozinets, Access to the E-mail Records of Public Officials: Safeguarding the Public's Right to Know, 25 COMM. LAw. 17 (2007). For a discussion of how various states have resolved the issue of whether emails are subject to their respective FOI laws, see Associated Press v. Canterbury, 688 S.E.2d 317, 325-331 (W.Va. 2009). 131 Litigating state FOi requests is similar to the federal FOIA, but there are some key differences. For example, as discussed in Section III.C, it can be difficult to obtain discovery in federal FOIA suits, but some state courts are more liberal in permitting discovery in FOi cases. See, e.g., Mo. CIR. CT. R. CIV. P. 2-411 ("Depositions - Right to Take") (establishing that litigants may, as a matter of right, take a deposition for the purpose of discovery in all civil matters). On the other hand, and unfortunately for requesters, the provisions for attorneys' fees in state FOi laws tend to be less generous than those provided by the federal FOIA. That said, all but seven states permit prevail­ ing parties to recover attorneys' fees and litigation costs in a suit to contest a denial of an FOi request under at least some circumstances. See Results and Criteria of BGA/ NFOIC Survey, supra note 126, at 1, 4-5 (comparing the attorneys' fees provisions of the 50 states' FOi laws). Where available, fee awards can be substantial. See, e.g., Order Granting Fees to Pis.' Lawyers, Citizens for Sunshine v. City of Venice, No. 2008 CA 2010] MAXIMIZING INFORMATION'S FREEDOM 417

B. Scope of Coverage Another significant difference between the federal FOIA and most state FOI laws-and one far more advantageous to reques­ ters-is the breadth of records each makes available for public in­ spection. Whereas the FOIA only applies to records over which an "agency" of the Executive Branch has possession and control,132 most state FOI laws apply to all "public records," usually a more expansive class. Many states classify any record pn file with a public official as a "public record" obtainable through the state FOI law133 (subject to any applicable exemptions, of course). Thus, while the federal FOIA explicitly does not apply to the federal courts or to Congress, 134 some state FOI laws do apply to legislative bodies135

8108 SC (Fla. Cir. Ct. Sept. 25, 2009) (awarding $750,000 in attorneys' fees and litiga­ tion expenses to the plaintiff non-profit organization in a suit under the Florida Pub­ lic Records Act, Fu. STAT. §§ 119.01 through 119.15 (2009); and the Government In the Sunshine Law, Fu. STAT.§§ 286.001 through 286.012 (2009)), availabl,e at http:/I www.scribd.com/doc/24688899; John Woolfolk, Public Records Settkrnent: $500,000 Deal Ends Suit Over Charges for Santa Clara County Maps, SAN JosE MERCURY NEWS, Oct. 8, 2009, at lB. The State of Washington's Public Records Act, WASH. REv. CODE §§ 42.56 et seq. (2009), not only provides for mandatory attorneys' fees to prevailing parties, id. 42.56.550( 4), but it also permits courts to impose a $5 to $100 per-day, per­ record fine for wrongly withheld records, payable to the requester who was forced to bring suit. Id. This provision has led to sizeable fines recently. See, e.g., Yousoufian v. Office of Sims, 200 P.3d 232, 240 n.12 (Wa. 2009) (noting that "[a] flea bite does little to deter an elephant," the Washington Supreme Court reversed a fee award of $124,000 as too insubstantial to deter future misconduct); Gene Johnson, County Set­ tks Suit From Vote Chalknger, SEATTLE TIMES, Apr. 25, 2009, at Bl ("King County has agreed to pay [a] conservative blogger [] $225,000 to settle a public-records lawsuit"). 132 See generally supra notes 10-11. 133 A good example of this is the Indiana Public Records Act, which defines "[p]ublic record" as "any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics." IND. CoDE ANN.§ 5-14-3-2(n) (West 2010). Some state FOi Jaws attempt to carve out purely personal information from their definitions of "public records" by requiring that the requested information be connected to the public's business. See, e.g., Califor­ nia Public Records Act, CAL. Gov'T CoDE § 6252(e) (West 2010); R.I. Access to Pub. Records Act, R.I. GEN. LAws § 38-2-2(4) (i) (2008). 134 This is apparently because when the FOIA was being debated, "Congress be­ lieved it made its deliberations and proceedings adequately subject to public observa­ tion, largely published its records, and otherwise was constitutionally authorized to engage in information restriction in certain circumstances," and lawmakers "also were satisfied with the openness of federal court files and hearing rooms." CONGRESSIONAL RESEARCH SERVICE, ACCESS TO GoVERNMENT INFORMATION IN THE UNITED STATES (up­ dated Aug. 31, 2009), at 2, availabk at http:/ /www.fas.org/sgp/ crs/secrecy/97-71.pdf. 135 See, e.g., Conn. Freedom of Info. Act, CONN. GEN. STAT. § 1-200(1) (A) (2009); Idaho Pub. Records Act, IDAHO CoDE § 9-337(13) (West 2010); Ill. Freedom of Info. 418 NEW YORK CITY LAW REVIEW [Vol. 13:387

and the state judiciary. 136 As discussed below, the expansive scope of state FOi laws can be leveraged to gain access to information the frequently-narrower federal FOIA does not provide.

C. Leveragi,ng Vertical Federalism An oft-cited objective of Our Federalism137 is that each sover­ eign acts as a check upon the other. In advocating for the ratific;a­ tion of the Constitution, Alexander Hamilton assuaged fears concerning the distance between the people and the central gov­ ernment by arguing that this distance: will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national coun­ cils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power.138 Hamilton may not have had access to government information in mind, but the sentiment applies; indeed, state FOi laws can be a

Act, 5 ILL COMP. STAT. ANN. 140/2(a) (West 2010); Utah Gov't Records Access and Mgmt. Act, UTAH CooE ANN.§ 63C.2-103(ll)(a)(ii) (West 2010). 136 Access to judicial records, unlike in most other contexts, has a clear constitu­ tional baseline: the Supreme Court has held that the public enjoys a qualified First Amendment right "to inspect and copy judicial records" in criminal cases, Nixon v. Warner Commc'n, 435 U.S. 589, 598 (1978), and has suggested in dicta that this right extends to civil cases as well, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 55q, 580 n.17 (1980). Many states go beyond this constitutional minimum by providing access to records relating to the judiciary's administrative functions. See, e.g., Hawaii Uniform Information Practices Act, HAw. REv. STAT. § 92F-3 (2008); Missouri Sun­ shine Law, Mo. REv. STAT. § 610.010(4) (2009); Rhode Island Access to Public Records Act, R.l. GEN. LAws ANN. § 38-2-2( 4) (i) (T) (2008). At least one state supreme court has indicated that emails of judges, if "relate[d] to the conduct of the public's business," are subject to disclosure. Assoc. Press v. Canterbury, 688 S.E.2d 317, 331 (W.Va. 2009). 137 See Younger v. Harris, 401 U.S. 37, 44 (1971) ("'Our Federalism' ... does not mean blind deference to 'States' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Govern­ ments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States."). 138 THE FEDERALIST No. 84, at 442 (Alexander Hamilton) (Ernest Rhyce ed., 1937). 2010] MAXIMIZING INFORMATION'S FREEDOM 419

useful way to monitor the activities of the federal government (and vice-versa). Under some circumstances-particularly in situations involv­ ing a high degree of federal-state cooperation, such as with law en­ forcement-certain records may be subject to both the federal FOIA and the applicable state FOi law. Usually this is because the records fall within the definition of both statutes; examples would include records that a federal agency created and then sent to state or local government agencies (or vice-versa), and records of com­ munications between the two maintained by both agencies (such as email messages). As federal-state and federal-local cooperation has increased in recent years the question of when state and/ or local agencies must disclose records created or disseminated by a federal agency has arisen with increasing frequency. When this issue has materialized, it is typically the federal agency objecting to the state or local agency's release of "federal" information under the state FOi law. 139 These objections take a number of forms-everything from "informal persuasion"140 to in­ tervening in state FOi litigation141 and the promulgation of "emer­ gency" regulations.142 Federal agencies have also acted proactively

139 See Jennifer Bennett, Should Police Be More Like Doctors?: The Lessons of Medical Informed Consent for National Security Partnerships at 3 ("[A] s federal agencies have in­ creasingly sought to involve state and local law enforcement in efforts to protect na­ tional security and enforce immigration law, they have also sought ways to shield these collaborative endeavors from state and local laws regulating information disclosure.") (unpublished) (on file with author). This is not to suggest, however, that state and localities do not also take the lead in arguing that federal law prohibits the disclosure of information that they do not wish to disclose. See, e.g., County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1318 (Cal. App. Ct. 2009) (holding that the Critical Infrastructure Information Act, 6 U.S.C. § 133(a)(l), did not prohibit the county government's disclosure of information that it had submitted to the federal government); cf. Bennett, supra, at nn.13, 95-96 and accompanying text. The Santa Clara case ultimately resulted in an agreement whereby the County agreed to pay $500,000 in attorneys' fees to the successful plaintiff. See Woolfolk, supra note 131. 140 See id. at 3-4. 141 See Comm'r, Dep't of Corr. v. Freedom of Info. Comm'n, Nos. CV084016692S, CV094020945S, 2009 WL 4852114, at *1 (Conn. Super. Ct. Dec. 17, 2009) (noting that the United States had been granted intervenor status). 142 See Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities, 67 Fed. Reg. 19508, 19509 (Apr. 22, 2002) (codi­ fied at 8 C.F.R. § 236.6); A.C.L.U. of NJ. v. County of Hudson, NJ., 799 A.2d 629 (NJ. Super. Ct. App. Div. 2002) (holding that 8 C.F.R. § 236.6 - an emergency regu­ lation promulgated by Attorney General John Ashcroft in direct response to the lower court's ruling in Hudson that counties holding detainees for the former Immigration and Naturalization Service were required under state law to disclose information about those detainees - preempted the state FOi law, such that the counties were prohibited from releasing the requested information); but cf. Comm'r, Dep't of. Corr., 2009 WL 4852114, at *3 (holding that the regulation does not apply to infor- 420 NEW YORK CITY LAW REVIEW [Vol. 13:387 to shield certain information from state FOi laws, most typically by inserting provisions into their contracts with state and local govern­ ments that purport to exempt certain records from state open records laws. These types of efforts by federal agencies are of dubious legal­ ity. There is no authority for the general proposition that a docu­ ment created by a federal agency or containing "federal" information retains its "federal" character no matter where it is dis­ seminated-or even that there is such a thing as a "federal" record or "federal" information.143 Nonetheless, federal agencies fre­ quently succeed in persuading state and local officials to deny re­ quests for records that the federal agency, for whatever reason, does not want released under state law. 144 Often, this is enough to end the matter, either because requesters are. not aware that this is a potential state FOi violation, or because even if they do, their only recourse is to file a lawsuit-an expensive and time-consum­ ing process that they understandably do not wish to undertake. Nonetheless, when determined requesters have filed suit, they have had successes. State and local defendant agencies in these law­ suits often try to defend nondisclosure by arguing that the state FOi law either permits or mandates withholding the records. One seemingly common argument is that the state FOi law somehow incorporates the federal FOIA exemptions, such that the record can (or must) be denied on the basis of a particular federal FOIA exemption even where the state FOi law does not contain a compa- mation about former detainees that were held in state and local jails, without opining on its preemptive effect). See also Ronald K Chen, Incarceration ofFederal Prisoners After September 11: Whose jail is it Anyway?, 69 BROOKLYN L. REv. 1335, 1361-67 (2004) (argu­ ing that the regulation constituted unconstitutional commandeering); Jose R. Al­ monte, Note, For the Sake of National Security: The Scope of the United States Attorney General's Authority in Light of 8 C.F.R 236.6, 56 RUTGERS L. REv. 817, 839-841 (2004) (arguing that Attorney General did not have the authority to promulgate the regula­ tion); Bennett, supra note 139, at 6-12 (arguing that the regulation should be evalu­ ated in terms of its effects on democratic accountability). 143 Moreover, there are good reasons for being suspicious of federal attempts to curtail states' efforts to inform their citizens of the extent and nature of state-federal cooperation on matters of public concern. See generally Bennett, supra note 139 (argu­ ing that the principles behind medical disclosure rules, although not perfectly analo­ gous, could be extended to evaluate when and how much information to disclose about cooperation between the federal government and its state and/or local COUJ)terparts). 144 This is not to say that the federal agency does not want the information released at all; after all, the federal FOIA will typically apply to make at least some of the same information accessible. More likely, the federal agency simply wants to control of the process by requiring requesters to go through the federal FOIA. 2010] MAXIMIZING INFORMATION'S FREEDOM 421 rable exemption.145 For example, the Connecticut Freedom of In­ formation Act provides that "unless otherwise prohibited by state or federal law," all public records shall be disclosed, subject to a few discretionary exemptions.146 In an effort to resist disclosure of records sent to it by a federal agency, the Connecticut State Police argued that the "unless otherwise prohibited by state or federal law" language incorporated the exemptions of the federal FOIA.147 The problem with this argument, however, is that the federal FOIA exemptions do not prohibit the disclosure of anything; instead, they are purely discretionary.148 On this basis, the Connecticut Freedom of Information Commission rejected the argument, 149 and its deci­ sion was affirmed on appeal.150 Similarly, in Maryland, a county sheriff participating in a local immigration enforcement program151 run pursuant to an agree­ ment with the federal Immigration and Customs Enforcement ("ICE") refused to disclose records related to the program that were in his possession by arguing that the records belonged to the federal government.152 Only after the requesting community group filed suit153 did the sheriff relent, ultimately disclosing more than

145 See, e.g., Danaher v. Freedom of Info. Comm'n, No. CVHHB084016067S, 2008 WL 4308212, at *2 (Conn. Super. Ct. Sept. 5, 2008) (rejecting this argument and holding that Congress did not design the federal act exemptions to be mandatory bars to disclosure); Letter from Andrew]. Murray, Supervising Cnty. Att'y, Anne Ar­ undel Cnty., Md., to MPIA requester CASA de Maryland, at 2 (Apr. 29, 2009) (stating that Mo. CooE ANN., STATE Gov'T § 10-615(2) (West 2010)-which requires records' custodians to deny requests under the Maryland Public Information Act for public records when disclosure is prohibited by, inter alia, "federal statute or a regulation that is issued under the statute and has the force of law" -requires denial of a re­ quested record because it allegedly would not be available under the federal FOIA), availabk at http://www.scribd.com/doc/34514608. 146 CoNN. GEN. STAT. § l-210(a) (2009). 147 See Danaher, 2008 WL 4308212 at *2-3. 148 See supra note 19 and accompanying text; see also DO] Guide to the FOIA, supra note 8, at 685-709 (discussing discretionary agency disclosures). 149 Junta for Progressive Action v. Danaher, No. FIC 2007-416 (Conn. Freedom of Info. Comm'n Nov. 6, 2007), availabk at http://www.scribd.com/doc/24688930. 150 See Danaher, 2008 WL 4308212. 151 See 8 u.s.c. § 1357(g); CHRISTINA RODRIGUEZ ET AL., MIGRATION POLICY INSTI­ TUTE, A PROGRAM IN FLUX: NEW PRIORITIES AND IMPLEMENTATION CHALLENGES FOR 287(g) (March 2010), http://www.migrationpolicy.org/pubs/287g-March2010.pdf (discussing the program's development). 152 Compl. at 2-3, CASA de Maryland, Inc. v. Frederick County Sheriff's Office, No. 304960-V (Md. Cir. Ct. Nov. 25, 2008), availabk at http://www.scribd.com/doc/ 22783444. 153 See id.; Nicholas C. Stem, Judge: Lawsuit Proceeds, FREDERICK NEws-PosT (Mary­ land), Feb. 26, 2009, availabk at http://www.fredericknewspost.com/sections/ archives/ display_detail.htm?StoryID=9383 l. 422 NEW YORK CITY LAW REVIEW [Vol. 13:387

2000 pages of records.154 A few months later, perhaps in reaction to similar records' re­ quests in other states, 155 ICE drafted new Memoranda of Agree­ ment ("MOA'') for agencies to sign. 156 The new MOA contains .a provision, not present in the prior agreements, stating that: Information obtained or developed as a result of this MOA is under the control of ICE and shall be subject to public disclo­ sure only pursuant to the provisions of applicable federal laws, regulations, and executive orders. Insofar as any documents cre­ ated by the [local law enforcement agency] contain information developed or obtained as a result of this- MOA, such documents shall not be considered public records.157 Although this provision has yet to be challenged under a state FOI law, state courts consistently reject similar attempts to contract around state FOI laws, 158 and it is difficult to imagine why they would not do so here as well. 159

154 See, e.g., 287(g) Training Materials, INA2,87.org, http://ina287.org/287g/287g­ training-materials. 155 See, e.g., Robert Boyer, Sheriff Woming on 287(g) Request, TrMES-NEws (Burlington, N.C.), Mar. 28, 2009 (discussing how the Alamance County Sheriff's Office was "con­ sulting with federal officials for clarification on the ACLU requests [under the state FOi law] ... to determine what they are allowed to release."), availabl,e at http:/ /www. thetimesnews.com/news/sheriff-23776-information-aclu.html (last visited Nov. 11, 2010). 156 See Press Release, Immigration & Customs Enforcement, ICE Announces Stan­ dardized 287(g) Agreements with 67 State & Local Law Enforcement Partners (Oct. 16, 2009), availabl,e at http://www.ice.gov/pi/nr/0910/091016washingtondc.htm. 157 Memorandum of Understanding from the U.S. Dep't of Homeland Security and the State of Ala., at 9 (October 15, 2009), availabl,e at http://www.ice.gov/doclib/ foia/memorandumsofAgreementUnderstanding/ r_287galabamadepartmentofpublicsafetyl01609.pdf. Copies of all current and super­ seded MOAs are available in ICE's electronic FOIA Reading Room at http://www.ice. gov/foia/readingroom.htm (last visited July 17, 2010). 158 See, e.g., Bradley v. Saranac Cmty. Sch. Bd. of Educ., 565 N.W.2d 650, 658 (Mich . .. 1997) (" [T] he defendant school district cannot eliminate its statutory obligations to the public merely by contracting to do so with plaintiff [Lansing Association of School Administrators] .... No exemption provides for a public body to bargain away the requirements of the FOIA."); Milwaukee Journal Sentinel v. Wis. Dep't Of Natural Res., 768 N.W.2d 700, 718 (Wis. 2009) ("[W]e cannot accept [the Wisconsin State Employees Union] 's argument that parties may, through the collective bargaining process, contract away the public's rights under the [Public Records Law]. To hold otherwise would be contrary to the public interest, and would have the potential to eviscerate the Public Records Law through private agreements." (citations and quota­ tion marks omitted)); Comm'r, Dep't of. Corr. v. Freedom of Info. Comm'n, Nos. CV084016692S, CV094020945S, 2009 WL 4852114, at *4 (Conn. Super. Ct. Dec. 17, 2009) ("The [Connecticut Department of Correction] may not contract away its statu­ tory obligations under [Connecticut's] FOIA" through a "user agreement" between it and the federal government governing use of a federal database). 159 See, e.g., RonrucuEz, supra note 151, at 2 (noting how this provision "potentially conflict[s] with state and local public records laws and undermine[s] transparency."). 2010] MAXIMIZJNG INFORMATION'S FREEDOM 423

Attempts by federal agencies to prevent states and localities from disclosing information are also of questionable legitimacy.160 When the federal government wishes to prohibit the disclosure of certain information, there is an established procedure: Congress passes a law. In Fiscal Year 2008, federal agencies relied on roughly 160 different statutory provisions to deny FOIA requests either in part or in full, 161 and these same provisions are properly used by states and localities to deny state FOI requests as well.162

CONCLUSION: HOPE FOR CHANGE? The purpose of the foregoing discussion has been to assist FOIA requesters in obtaining the maximum amount of informa­ tion possible out of a transparency mechanism that suffers serious flaws. In so doing, this Article, quite unintentionally, has taken a tone that will likely strike some as pessimistic. Nonetheless, there are reasons to hope that the situation will improve. Anecdotal evidence suggests that transparency improved in the early years of the Obama administration.163 Nonetheless, it re­ mains to be seen how far President Obama is willing to go in fulfil­ ling his pledge of a ushering in a new era of governmental

See also Travis Loller, ICE Wants to Limit Public Info About Detainees, KNOXNEWS.COM (Sept. 7, 2009), http://www.knoxnews.com/news/2009/sep/07/ice-wants-to-limit­ public-info-about-detainees/ ("A Tennessee sheriff is balking at renewing his depart­ ment's participation in a program that lets local authorities enforce federal immigra­ tion laws because new rules could keep secret basic information about who's being detained."); Travis Loller, NashviUe Sheriff Signs Agreement With Immigration, TIMESFREEP­ RESS.COM (Oct. 9, 2009), http://www.timesfreepress.com/news/2009/oct/09/nash­ ville-sheriff-signs-agreement-immigration/ ("Nashville Sheriff Daron Hall's office has agreed to coordinate the release of information with the Immigration and Customs Enforcement office. If the federal agency wants to keep certain documents secret it must show proof of a federal law or regulation or executive order authorizing that withholding.... Hall had said he would not sign the document as it was and wanted the guidelines for release of documents to conform with Tennessee law."). 160 See Bennett, supra note 139. 161 See U.S. Dep't of Justice, Office of Info. Pol'y, Exemption 3 Statutes (Sept. 17, 2009), http://wwwJustice.gov/ oip/ exemption3-statutes.pdf. This list is compiled each year at the direction of Congress. See 5 U.S.C. § 552(e) (4) (2009). 162 Assuming that the state FOi law contains some provision providing that records' custodians shall not release the records when doing so would violate federal law. See, e.g., Connecticut Freedom of Information Act, CoNN. GEN. STAT. § l-210(a) (2009); Maryland Public Information Act, Mo. CooE ANN., STATE Gov'T § 10-615(2) (ii) (2009). 163 See 0PENTttEGoVERNMENT.ORG, SECRECY REPORT CARD '09: INDICATORS OF SE­ CRECY IN THE FEDERAL GOVERNMENT (2009)' http:/ /www.openthegovernment.org/ otg/SecrecyRC_2009.pdf; Reporters Comm. for Freedom of the Press, openness has Improved, but FOJA Reform StiU Needed (Sept. 30, 2009), http://www.rcfp.org/new­ sitems/index.php?i=ll045. 424 NEW YORK CITY IA W REVIEW [Vol. 13:387 transparency,164 particularly following the high-profile (and highly­ embarrassing) publication of previously-confidential diplomatic cables by WikiLeaks.165 A potentially exciting development for open-government pro­ ponents is the creation of the new Office of Government Informa­ tion Services (OGIS) within the National Archives and Records Administration.166 This office, congressionally mandated by the 2007 OPEN Government Act,167 is tasked with serving as a liaison between agencies and FOIA requesters, particularly when FOIA disputes arise. Here again, it is too early to determine what effect, if any, the OGIS will have on the administration of the FOIA. None­ theless, it does provide some hope that the gap between the FOIA's promise and its reality can be narrowed in the coming years.

164 See Cary Coglianese, The Transparency President? The Obama Administration and open Government, 22 GOVERNANCE 522 (2009), availabk at http://papers.ssrn.c;om/ sol3/papers.cfm?abstract_id=l433815; but see Daniel]. Metcalfe, Sunshine Not So Bright: FOIA Impkmentation Lags Behind, 34 AnMIN. & RE.c. L. NEws, Summer 2009, at 5, 9 (applauding the general goal of transparency outlined by the Obama Administration, but finding fault with its early implementation: "[W]hen the shouting's over, what matters most is how well those broad strokes are put into practice[] as a matter of improved day-to-day administrative practice"). 165 See Mark Landler & J. David Goodman, U.S. Reassures Countries as Leaks Rattk Relations, N.Y. TIMES, Nov. 30, 2010, at Al4; Scott Shane & Andrew W. Lehren, Leaked Cabks Offer a Raw Look Inside U.S. Diplomacy, N.Y. TIMES, Nov. 29, 2010, at Al. 166 U.S. Dep't ofJustice, Office oflnformation Privacy, Office of Government Informa­ tion Services Is Now open, FOIA PosT (Oct. 21, 2009), http://wwwJustice.gov/oip/ foiapost/2009foiapost20.htm (last visited Nov. 18, 2010); see also Office of Govern­ ment Information Services, http:/ /www.archives.gov/ogis (last visited Nov. 18, 2010). 167 OPEN Government Act of 2007, Pub. L. No. 110-175, § 10, 121 Stat. 2524, 2529- 30 (2007) (to be codified at 5 U.S.C. § 552(h)).