Stanford Journal of Civil Rights & Civil Liberties

Volume XIV May 2018 Special Issue

COUNTERING HATE IN AMERICA

ESSAYS

FOREWORD ...... i M. Elizabeth Magill

KEEP ON KEEPING ON: MAINTAINING MOMENTUM FOR CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA...... 1 Miriam S. Gohara

POSITIVE EMOTIONS AND IMMIGRANT RIGHTS: LOVE AS RESISTANCE ...... 19 Marisol Orihuela

THE DREAMER DIVIDE: ASPIRING FOR A MORE INCLUSIVE IMMIGRANTS’ RIGHTS MOVEMENT ...... 33 Adrienne Pon

REFLECTIONS ON CHARLOTTESVILLE ...... 45 Steven R. Shapiro

IS IT A MAN'S WORLD? RECONCEPTUALIZING THE RIGHT TO BE HEARD IN THE AFTERMATH OF THE CHARLOTTESVILLE TRAGEDY (SYNOPSIS) ...... 57 Camille Gear Rich

About the Stanford Journal of Civil Rights & Civil Liberties

© 2018 by the Board of Trustees of the Leland Stanford Junior University

Subscriptions: The Stanford Journal of Civil Rights & Civil Liberties is published twice a year by students of the Stanford Law School, Crown Quadrangle, 559 Nathan Abbott Way, Stanford, California 94305-8610. Volume prices are $42 domestic, and $52 international. All subscriptions are for the volume year (from 9/1/17 to 8/31/18) and will be renewed automatically unless the subscriber provides timely notice of cancellation. Please contact the Business Manager at (650) 723-2747 for subscription information.

Postage: Postage paid at Palo Alto, California 94303, and additional mailing offices.

Postmaster: Mail your change of address or other subscription information to Business Manager, SJCRCL, Crown Quadrangle, 559 Nathan Abbott Way, Stanford, California 94305-8610. Include name, new address with zip code, and old address or mailing label. Please mail changes at least six to eight weeks before the publication date to ensure prompt delivery. The U.S. Postal Service will not forward copies unless additional postage is paid by the subscriber.

Single Issues: Issues in the current volume are available from SJCRCL for $24 each plus shipping and handling fees. For back issues, volumes, and sets, inquire of William S. Hein & Co. Inc., 1285 Main Street, Buffalo, New York 14209- 1987. Orders may also be placed by calling Hein at (800) 828-7571, via fax at (716) 883-8100, or by e-mail at [email protected]. Back issues can be found in electronic format on HeinOnline (http://heinonline.org).

Manuscripts: SJCRCL accepts online submission of unsolicited manuscripts. Please see https://law.stanford.edu/stanford-journal-of-civil-rights-civil- liberties-sjcrcl/sjcrcl-submissions/ for further information. Although not preferred, submissions by mail are also accepted. Please include an e-mail address with all submissions.

Citations: The text and citations of SJCRCL generally conform to The Bluebook: A Uniform System of Citation (20th ed. 2015), copyright by the Columbia Law Review Association, the Harvard Law Review Association, the University of Pennsylvania Law Review, and the Yale Law Journal.

Internet Address: The SJCRCL homepage is located at https://law.stanford.edu/stanford-journal-of-civil-rights-civil-liberties-sjcrcl/.

Stanford Journal of Civil Rights & Civil Liberties Volume XIV May 2018 Special Issue

EDITORIAL BOARD

Editor-in-Chief MELISSA CORNELL

Executive Editors Associate Executive Editor RACHEL GREEN FAARIS (FARES) AKREMI JORDAN OROSZ

Managing Editors Articles Editors Special Issue Editors BEN DEGOLIA PARKER CRAGG LAUREN BORDER EMMA SCHINDLER MEGHAN KOUSHIK CAROLINE COHN DAPHNA SPIVACK MARK KRASS REBECCA WONG PETER VOGEL

Development Editors Technical Managing Editors Student Note Editor HANNAH MATSUNAGA DAVID HUANG JULIA NEUSNER BRITANY RILEY NICOLE WELINDT

Senior Editors OLAMIDE ABIOSE KATHERINE GUTHRIE EUGÉNIE ISEMAN ZACHARY BLECKNER BEN HATTEM MARJORY MARQUARDT JAMES DAVIDSON TYLER HELMS M ICHAEL MOORIN HEATHER DURHAM ERIKA HOGLUND KRITI SHARMA VANESSA GUERRERO CLAIRE TORCHIANA

Member Editors ETHAN AMAKER MARIKA O'CONNOR GRANT MOLLY RUNKLE MELISSA GIANGRANDE MEGHAN PALMER THOMAS VEITCH DAVID M. LEVINE BRETT PARKER RACHEL WATERMAN MARYJO LOPEZ MARIEL PEREZ-SANTIAGO ALEXANDRA WILLINGHAM ALLISON ROTHSCHILD

The Stanford University School of Law

OFFICERS OF ADMINISTRATION Marc Tessier-Lavigne, B.Sc., B.A., Ph.D., President of the University Persis A. Drell, A.B., Ph.D., Provost of the University M. Elizabeth Magill, B.A., J.D., Dean and Richard E. Lang Professor of Law Mark G. Kelman, B.A., J.D., James C. Gaither Professor of Law, Vice Dean, and Professor by courtesy of Political Economy Juliet M. Brodie, A.B., J.D., Mills Professor of Law, Director of the Mills Legal Clinic and of the Stanford Community Law Clinic, and Associate Dean for Clinical Education Robert M. Daines, B.S., B.A., J.D., Pritzker Professor of Law and Business, and Professor by courtesy of Finance Nora Freeman Engstrom, A.B., J.D., Professor of Law, Deane F. Johnson Faculty Scholar, and Associate Dean for Curriculum Deborah R. Hensler, B.A., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies Frank F. Brucato, B.A., Senior Associate Dean for Administration and Chief Financial Officer Diane T. Chin, B.A., J.D., Lecturer in Law and Associate Dean for Public Service and Public Interest Law Faye Deal, A.B., Associate Dean for Admissions and Financial Aid Julia Erwin-Weiner, B.A., M.A., Senior Associate Dean for External Relations Sabrina Johnson, B.A., Associate Dean for Communications and Public Relations Susan C. Robinson, B.A., J.D., Lecturer in Law and Associate Dean for Career Services Jory Steele, B.A., M.I.A., J.D., Associate Dean for Student Affairs

FACULTY EMERITI Janet Cooper Alexander, B.A., M.A., J.D., Frederick I. Richman Professor of Law, Emerita Barbara Babcock, B.A., LL.B., LL.D. (hon.), Judge John Crown Professor of Law, Emerita Wayne G. Barnett, A.B., LL.B., Professor of Law, Emeritus Paul Brest, B.A., LL.B., Professor of Law, Emeritus and Former Dean Gerhard Casper, Referendar, LL.M., Dr. iur. utr., LL.D. (hon.), President Emeritus, Professor of Law Emeritus, Senior Fellow, Institute for International Studies, and Peter and Helen Bing Professor in Undergraduate Education, Emeritus Joshua Cohen, B.A., M.A., Ph.D., Marta Sutton Weeks Professor of Ethics in Society and Professor of Philosophy and of Law, Emeritus Richard Craswell, B.A., J.D., Professor of Law, Emeritus Lance E. Dickson, B.A., LL.B., B.Com., M.L.S., Professor of Law, Emeritus, and Former Director of the Robert Crown Law Library Marc A. Franklin, A.B., LL.B., Frederick I. Richman Professor of Law, Emeritus Jack H. Friedenthal, B.A., J.D., George E. Osborne Professor of Law, Emeritus Ronald J. Gilson, A.B., J.D., Charles J. Meyers Professor of Law and Business, Emeritus Robert A. Girard, B.A., LL.B., Professor of Law, Emeritus William B. Gould IV, B.A., LL.B., LL.D. (hon.), Charles A. Beardsley Professor of Law, Emeritus Thomas C. Grey, B.A., LL.B., LL.D. (hon.), Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus Thomas C. Heller, A.B., LL.B., Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, Emeritus Margaret Jane Radin, A.B., M.F.A., J.D., LL.B., Wm. Benjamin Scott and Luna M. Scott Professor of Law, Emerita William H. Simon, A.B., J.D., William W. and Gertrude H. Saunders professor of Law, Emeritus Michael S. Wald, B.A., M.A., LL.B., Jackson Eli Reynolds Professor of Law, Emeritus

PROFESSORS Gregory Ablavsky, B.A., J.D., Ph.D., Assistant Professor of Law Michelle Wilde Anderson, B.A., M.Sc., J.D., Professor of Law and Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research Joseph M. Bankman, B.A., J.D., Ralph M. Parsons Professor of Law and Business Ralph Richard Banks, B.A., M.A., J.D., Jackson Eli Reynolds Professor of Law and Professor by courtesy of Education Rabia Belt, A.B., J.D., M.A., Ph.D., Assistant Professor of Law Juliet M. Brodie, A.B., J.D., Mills Professor of Law, Director of the Mills Legal Clinic and of the Stanford Community Law Clinic, and Associate Dean for Clinical Education James Cavallaro, A.B., J.D., Professor of Law and Director, Stanford International Human Rights and Conflict Resolution Clinic G. Marcus Cole, B.S., J.D., William F. Baxter-Visa International Professor of Law Robert M. Daines, B.S., B.A., J.D., Pritzker Professor of Law and Business and Professor by courtesy of Finance Michele Landis Dauber, B.S.W., J.D., Ph.D., Frederick I. Richmond Professor of Law and Professor by courtesy of Sociology John J. Donohue III, B.A., J.D., M.A., M.Phil., Ph.D., C. Wendell and Edith M. Carlsmith Professor of Law David Freeman Engstrom, A.B., M.Sc., J.D., Ph.D., Professor of Law and Bernard D. Bergreen Faculty Scholar Nora Freeman Engstrom, A.B., J.D., Professor of Law, Deane F. Johnson Faculty Scholar, and Associate Dean for Curriculum George Fisher, A.B., J.D., Judge John Crown Professor of Law and Faculty Co-Director, Criminal Prosecution Clinic Jeffrey L. Fisher, A.B., J.D., Professor of Law and Co-Director, Supreme Court Litigation Clinic Richard Thompson Ford, B.A., J.D., George E. Osborne Professor of Law Barbara H. Fried, B.A., M.A., J.D., William W. and Gertrude H. Saunders Professor of Law Lawrence M. Friedman, A.B., J.D., LL.M., LL.D. (hon.), Marion Rice Kirkwood Professor of Law, Professor by courtesy of History, and Professor by courtesy of Political Science Jacob Goldin, B.A., M.A., Ph.D., J.D., Assistant Professor of Law Paul Goldstein, B.A., LL.B., Stella W. and Ira S. Lillick Professor of Law Robert W. Gordon, A.B., M.A., J.D., Professor of Law Henry T. Greely, A.B., J.D., Deane F. and Kate Edelman Johnson Professor of Law and Professor by courtesy of Genetics Joseph A. Grundfest, B.A., M.Sc., J.D., W.A. Franke Professor of Law and Business Lucas Guttentag, B.A., J.D., Professor of the Practice of Law (on leave autumn) Deborah R. Hensler, A.B., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies Daniel E. Ho, B.A., A.M., Ph.D., J.D., William Benjamin Scott and Luna M. Scott Professor of Law Colleen Honigsberg, B.S., J.D., Ph.D., Assistant Professor of Law Erik G. Jensen, B.A., J.D., L.L.M., Professor of the Practice of Law Pamela S. Karlan, B.A., M.A., J.D., Kenneth and Harle Montgomery Professor of Public Interest Law and Co- Director, Supreme Court Litigation Clinic Mark G. Kelman, B.A., J.D., James C. Gaither Professor of Law, Vice Dean, and Professor by courtesy of Political Economy Amalia D. Kessler, B.A., M.A., J.D., Ph.D., Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies and Professor by courtesy of History Daniel P. Kessler, A.B., J.D., Ph.D., Professor of Law, Senior Fellow, Hoover Institution, David S. and Ann M. Barlow Professor in Management, and Professor by courtesy of Health Research and Policy Michael Klausner, B.A., M.A., J.D., Nancy and Charles Munger Professor of Business and Professor of Law William S. Koski, B.B.A., J.D., Ph.D., Eric and Nancy Wright Professor of Clinical Education, Director, Youth and Education Law Project, and Professor by courtesy of Education Mark A. Lemley, A.B., J.D., William H. Neukom Professor of Law Robert J. MacCoun, B.A, M.A., Ph.D., James and Patricia Kowal Professor of Law and Senior Fellow, Freeman Spogli Institute for International Studies M. Elizabeth Magill, B.A., J.D., Dean and Richard E. Lang Professor of Law Phillip R. Malone, B.A., J.D., Professor of Law and Director, Juelsgaard Intellectual Property and Innovation Clinic Lawrence C. Marshall, B.A., J.D., Professor of Law Jenny S. Martinez, B.A., J.D., Professor of Law and, Warren Christopher Professor in the Practice of International Law and Diplomacy Michael W. McConnell, B.A., J.D., LL.D. (hon.), Richard and Frances Mallery Professor of Law A. Douglas Melamed, B.A., J.D., Professor of the Practice of Law Michelle M. Mello, B.A., M.Phil., Ph.D., J.D., Professor of Law and Professor of Health Research and Policy (School of Medicine) Bernadette Meyler, A.B., M.A., J.D., Ph.D., Carl and Sheila Spaeth Professor of Law Curtis Milhaupt, B.A., J.D., Professor of Law David W. Mills, B.A., J.D., Professor of the Practice of Law and Senior Lecturer in Law Jay A. Mitchell, A.B., J.D., Professor of Law and Director, Organizations and Transactions Clinic Alison D. Morantz, A.B., M.Sc., J.D., Ph.D., James and Nancy Kelso Professor of Law (on leave) Lisa Larrimore Ouellette, B.A., Ph.D., J.D., Assistant Professor of Law Nathaniel Persily, B.A., M.A., J.D., Ph.D., James B. McClatchy Professor of Law Joan Petersilia, B.A., M.A., Ph.D., Adelbert H. Sweet Professor of Law A. Mitchell Polinsky, A.B., Ph.D., M.S.L., Josephine Scott Crocker Professor of Law and Economics and Professor by courtesy of Economics Robert L. Rabin, B.S., J.D., Ph.D., A. Calder Mackay Professor of Law Dan Reicher, B.A., J.D., Professor of the Practice of Law Deborah L. Rhode, B.A., J.D., Ernest W. McFarland Professor of Law Jane S. Schacter, A.B., J.D., William Nelson Cromwell Professor of Law Shirin A. Sinnar, A.B., M.A., M.Phil., J.D., Associate Professor of Law Deborah A. Sivas, B.A., M.S., J.D., Luke W. Cole Professor of Environmental Law and Director, Environmental Law Clinic David Alan Sklansky, B.A., J.D., Stanley Morrison Professor of Law James A. Sonne, B.A. J.D., Associate Professor of Law and Director, Religious Liberty Clinic Norman W. Spaulding, B.A., J.D., Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law Jayashri Srikantiah, B.S., J.D., Professor of Law and Director, Immigrants’ Rights Clinic James Frank Strnad II, A.B., J.D., Ph.D., Charles A. Beardsley Professor of Law David M. Studdert, B.A., LL.B., M.P.H., Sc.D., Professor of Law and Professor of Medicine (PCOR/CHP) Alan O. Sykes, B.A., J.D., Ph.D., Professor of Law Barton H. Thompson, Jr., B.A., J.D., M.B.A., Robert E. Paradise Professor of Natural Resources Law George Triantis, LL.B., LL.M., J.S.D., Charles J. Meyers Professor of Law and Business, Associate Dean for Strategic Planning, and Associate Dean for Research for Stanford University Ronald C. Tyler, B.S., J.D., Associate Professor of Law and Director, Criminal Defense Clinic Barbara van Schewick, B.Sc., M.Sc., Ph.D., Professor of Law, Helen L. Crocker Faculty Scholar, and Associate Professor by courtesy of Electrical Engineering Robert Weisberg, B.A., M.A., Ph.D., J.D., Edwin E. Huddleson, Jr. Professor of Law

SENIOR LECTURERS Janet Martinez, B.S., J.D., M.P.A., Ph.D., Senior Lecturer in Law and Director, Gould Negotiation and Mediation Project Allen S. Weiner, A.B., J.D., Senior Lecturer in Law Beth Williams, B.A., M.A., J.D., M.L.I.S., Senior Lecturer in Law and Director, Robert Crown Law Library

VISITING PROFESSORS & AFFILIATED FACULTY Michael Asimow, B.S., J.D., Visiting Professor of Law William Baude, B.S., J.D., Visiting Assistant Professor of Law Binyamin Blum, B.A., LL.B., J.S.M., M.A., J.S.D., Visiting Assistant Professor of Law Svetlana Bryzgaloval, B.S., M.S., Ph.D., Affiliated Faculty M. Kate Bundorf, M.B.A., M.P.H., Ph.D., Affiliated Faculty Mariano-Florentino Cuéllar, A.B., A.M., J.D., Ph.D, Visiting Professor of Law Jennifer Eberhardt, B.A., A.M., Ph.D., Professor by courtesy of Law Siegfried Fina, Mag. iur., Dr. iur., Visiting Associate Professor of Law Michael Genesereth, Sc.B., Ph.D., Associate Professor by courtesy of Law Laurie Hoderick, B.A., Ph.D., Visiting Professor of Law Keith Humphreys, B.A., A.M., Ph.D., Affiliated Faculty Joshua Kleinfeld, B.A., J.D., Ph.D., Visiting Associate Professor of Law David F. Larcker, B.S., M.S., Ph.D., Professor by courtesy of Law Kenneth Mack, Visiting Professor of Law Burt Neuborne, A.B., J.D., Visiting Professor of Law Rogelio Pérez-Perdomo, Ph.D., Visiting Professor of Law Jedediah Purdy, A.B., J.D., Visiting Professor of Law Jack Rakove, A.B., Ph.D., Professor by courtesy of Law Zahr Said, B.A., J.D., Ph.D., Visiting Associate Professor of Law Keith Weinstein, B.A., A.M., Ph.D., Assistant Professor by courtesy of Law

LECTURERS AND TEACHING FELLOWS Adam Abelkop David Johnson Lisa Pearson Jason Bade Danielle Jones Brenna Powell Marilyn Bautista Mugambi Jouet Stephan Ray Jeffrey Brown Megan Karsh Lucy Ricca Viola Canales Julie Matlof Kennedy Susan Robinson Ronald Chen Sallie Kim David B. Rogers Isaac Cheng Matthew Kline Michael Romano Michael Dickstein Larry Kramer Betty Rowe Christina Dos Santos Robin Lee Richard P. Salgado Lisa Douglass Susan Liautaud Ticien Sassoubre Sarah Duranske Stuart Lipton Steven Shapiro Randee Fenner Goodwin Liu Sarah Shirazyan Jay Finkelstein Suzanne A. Luban Stephanie Smith Tara Ford Grande Lum Michelle Sonu David Forst Diego Gil McCawley Shanin Specter Laurence Franklin Beth McLellan Sergio Stone Michelle Galloway Jason Meek Kimberly Summe Albert Gidari Jeanne Merino Alicia Thesing David Goldberg Marion Miller Valicia Trowbridge Jonathan Greenberg Shawn Miller Yanbai Andrea Wang Mehdi-Jalalddin Hakimi Charles Moore Justin Weinstein-Tull Tim Hallahan Nader Mousavi Lisa Weissman-Ward Adam Halpern Deborah Mukamal Spencer Williams Luciana Herman Jessica Notini Andrew Winden Todd Hinnen Jef Pearlman Michael Winn Zeba Huq B. Howard Pearson Joseph Yang

PROFESSIONAL LIBRARY STAFF Annie Chen, B.A., M.L.S. Leizel Ching, B.A., M.Ed., J.D. Will Huggins, B.A. Sean Kaneshiro, B.A., J.D., M.L.I.S. Jake Kubrin, B.A., M.L.I.S. Marion Miller, B.A., J.D., M.L.I.S. Camelia Naranch, B.A., M.L.I.S. Sarah Reis, B.A., M.L.I.S., J.D. Sergio Stone, B.A., J.D., M.L.I.S. Ryan Tamares, B.M, M.M., M.L.I.S. Beth Williams, B.A., M.A., J.D., M.L.I.S. George D. Wilson, B.A., J.D., M.L.I.S. Alex Zhang, B.A., M.A., J.D., M.S. I

FOREWORD

M. Elizabeth Magill† It is an honor to have been asked to provide the Foreword to this Special Issue of the Stanford Journal of Civil Rights and Civil Liberties on the theme “Countering Hate in America.” Perhaps the greatest pleasure of being a law school dean is interacting with our students. It is even more gratifying to have the rare opportunity to contribute, even in a small way such as this, to our students’ efforts. And I am particularly delighted that this Special Issue contains the work of one of our very own students, Adrienne Pon, published alongside distinguished academics and practitioners. We are, like other times in our history, in a moment of political upheaval. This period has many features—pitched battles over policy change; deep disagreement about rhetoric and language; competing claims about legal constraints on the executive; and every form of activism, from the homespun grassroots protest to the highly organized political rally to the digital organizers who orchestrate while sitting in their study. Moments like this are destabilizing, but they also bring something important—greater engagement by the populace on matters of significance to the country. Among the striking features of our current moment of activism is this: Many who have never been spurred to act in their lives are now engaged. A recent poll by the Washington Post and Kaiser Family Foundation found that one in five Americans have attended a protest or a rally in the last two years, and nineteen percent of those who attended said they had never attended a protest or rally before 2016.1 This Special Issue zeroes in on the many complexities that lie underneath these facts: What form is this activism taking? How can we, and should we, rethink traditional approaches to change? Two authors, Professors Steven Shapiro and Camille Rich, examine the ACLU’s struggle with its approach to hate speech after Charlottesville. Professor Shapiro considers whether the Constitution’s robust protection of speech

† Richard E. Lang Professor of Law and Dean, Stanford Law School. Many thanks to Susan Fleischmann of Stanford Law and the exceptional and thoughtful editors of this Special Issue, especially Lauren Border, Caroline Cohn, Melissa Cornell, Rachel Green, and Rebecca Wong. Errors are my own. 1. Mary Jordan and Scott Clement, Rallying Nation: In reaction to Trump, millions of Americans are joining protests and getting political, WASH. POST (Apr. 6, 2018), https://www.washingtonpost.com/news/national/wp/2018/04/06/feature/in-reaction-to- trump-millions-of-americans-are-joining-protests-and-getting- political/?utm_term=.f9b367cab253.

i ii STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SIi generally should continue to extend to hate speech, and whether our historical protection of hate speech is truly necessary to our democracy. He ultimately argues in the affirmative, reasoning that any exception for hate speech would then allow suppression of protest in support of progressive causes. Professor Rich2 highlights the role of hidden gender norms in our approach to the rights of speech, assembly, and protest. She argues that the history of the First Amendment reveals a masculine approach to these questions, and that approach threatens the full exercise of all citizens’ freedoms. Turning to Charlottesville, she examines the relationship between gender, protest, and violence in American society. The harms that flow from intimidation, in her view, should be central in First Amendment analysis. Professor Miriam Gohara focuses on recent, national changes to criminal justice policy, which she predicts will dramatically increase incarceration rates. She urges those who resist these moves to focus their attention on local, rather than national, actors. Changed course in criminal justice policy, she argues, can best be resisted by those at the local political level, who have the best understanding of the drivers of violent crime and the consequences of incarceration. Professor Marisol Orihuela and Adrienne Pon address activism in the immigration sphere. Orihuela writes of the power of specific types of language— and the emotion that language can evoke—in the sanctuary and Dreamer movements. She argues that language describing positive emotions like love has been important to the growth of these movements and can continue to provide energy to social and political activism. Pon focuses on the Dreamer movement, arguing for a more inclusive approach to immigration reform. Reminding us of the divisions that existed in historical social movements, she identifies the echoes of these divisions that we can see in today’s Dreamer movement, particularly in the opposition to the name of the movement itself. She argues that advocates should carefully frame the narrative describing Dreamers, with language chosen to ensure that the movement has as much effect as possible. I appreciate the opportunity to introduce this Special Issue. These thoughtful contributions will no doubt inform our understanding of change as we move forward.

2. Note: This Foreword was written based on a synopsis of Professor Rich’s forthcoming Essay.

KEEP ON KEEPING ON: MAINTAINING MOMENTUM FOR CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA

Miriam S. Gohara†

INTRODUCTION

President Donald Trump and his Attorney General, Jeff Sessions, have swiftly and starkly distinguished their criminal justice rhetoric and policies from those of their predecessors. President Trump and Attorney General Sessions have traded on racist stereotypes and notions that criminals have been emboldened in recent years in the wake of the Obama Administration’s purported lenience in law enforcement and sentencing. In doing so, the Trump Administration has heightened the imperative for criminal justice reform, particularly for policies designed to reduce the numbers of people in jails and prisons, the most urgent civil rights and racial justice issue of the past forty years. To begin with, President Trump and Attorney General Sessions have thrown a tough-on-crime gauntlet down on what they have claimed, contrary to data, are rising crime rates.1 In fact, violent crime has fallen sharply in the past twenty-five years, since its peak in the early 1990s.2 Violent and property crime

† Clinical Associate Professor of Law, Yale Law School. Many thanks to my colleague, James Forman, Jr., and to my research assistants, Bertolain Elysee, Miriam Becker-Cohen, and Kate Logue, as well as to the editors of the Stanford Journal of Civil Rights & Civil Liberties. 1. See Louis Nelson, Trump Says He’s Sending Feds to Chicago to Help With Crime Problem, POLITICO (June 30, 2017), https://www.politico.com/story/2017/06/30/donald- trump-chicago-crime-federal-help-240131; Mark Berman, Violent Crimes and Murders Increased in 2016 for a Second Consecutive Year, FBI Says, WASH. POST (Sept. 25, 2017), https://www.washingtonpost.com/news/post-nation/wp/2017/09/25/violent-crime-increased- in-2016-for-a-second-consecutive-year-fbi-says/?utm_term=.5e15591239bb; Aaron Rupar, Trump Keeps Lying About Crime in America. This is The Truth., THINKPROGRESS (Aug. 29, 2016), https://thinkprogress.org/donald-trump-keeps-lying-about-crime-in-america- 89e06c1d14c7/. 2. See John Gramlich, Five Facts About Crime in the U.S., PEW RESEARCH CTR. (Jan. 30, 2018), http://www.pewresearch.org/fact-tank/2018/01/30/5-facts-about-crime-in-the-u-s/ (citing FBI statistics showing a 48% decline in violent crime rates between 1993-2016, using statistics that include homicides, and Bureau of Justice statistics showing a 74% decline during the same period, not including homicides).

1 2 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI1 rates have declined to levels unseen since the late 1960s.3 Meanwhile, the nation’s imprisonment rate fell 11% from 2008-2016.4 During the same period, thirty-five states cut crime and imprisonment rates simultaneously.5 In 2016, the federal prison population declined by 4% from the previous year, and 2,200 fewer people entered federal prisons, accounting for 96% of the decline in new admissions in state and federal facilities at the year’s end.6 As of the beginning of February 2018, there were 6,000 fewer people incarcerated in federal prisons than there were in 2017, a decline of just over 3%.7 Given mass incarceration’s disproportionate impact on African Americans, it is welcome news that falling prison rates have included a 29% drop in the rate at which African-American adults have been incarcerated over the past decade.8 Progressive criminal justice reformers must remain vigilant against threats to these modest and woefully incomplete rollbacks of mass incarceration’s grave injustice, particularly when Attorney General Sessions has redoubled his commitment to policies designed to put more people behind bars.9 The most prominent substantive directive on federal sentencing issued by the Trump Administration is Attorney General Sessions’s May 2017 memorandum to United States Attorneys requiring federal line prosecutors to pursue the most serious provable charges against defendants.10 Any decision to

3. See Adam Gelb & Jacob Denney, National Prison Rate Continues to Decline Amid Sentencing, Re-Entry Reforms, PEW CHARITABLE TRUSTS (Jan. 16, 2018), http://www.pewtrusts.org/en/research-and-analysis/analysis/2018/01/16/national-prison-rate- continues-to-decline-amid-sentencing-re-entry-reforms. 4. See id. 5. See id. 6. See E. ANN CARSON, U.S. DEP’T OF JUST., BUREAU OF JUST. STAT., NCJ 251149, PRISONERS IN 2016 1 (Jan. 2018), https://www.bjs.gov/content/pub/pdf/p16.pdf. 7. See BRENNAN CTR. FOR JUST., CRIMINAL JUSTICE ONE YEAR INTO THE TRUMP ADMINISTRATION 8 & 16 n.80 (Feb. 2018) (citing other sources), https://www.brennancenter.org/sites/default/files/publications/Criminal_Justice_One_Year_I nto_the_Trump_Administration_0.pdf. 8. See U.S. SENTENCING COMM’N, DEMOGRAPHIC DIFFERENCES IN SENTENCING: AN UPDATE TO THE 2012 BOOKER REPORT 2 (Nov. 14, 2017), https://www.ussc.gov/research/research-reports/demographic-differences-sentencing (reporting that Black men received federal prison sentences 19.1% longer than similarly situated White men between fiscal years 2012 and 2016); ASHLEY NELLIS, SENTENCING PROJECT, THE COLOR OF JUSTICE, 3 (June 2016), http://www.sentencingproject.org/ publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/ (reporting that African Americans are incarcerated in state prisons at a rate 5.1 times that of Whites); Gelb & Denney, supra note 3. 9. See Jeff Sessions, U.S. Att’y Gen., Remarks at the Reagan Alumni Association’s Celebration of President Reagan’s Birthday (Feb. 6, 2018), in DEP’T JUST. NEWS, https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-reagan- alumni-associations-celebration (lauding the elimination of federal parole, elimination of bail during federal appeals, enactment of mandatory minimum sentences, and “[getting] tough on drug abuse” as critical to “re-establishing law and order”). 10. Memorandum from Jeff Sessions, U.S. Att’y Gen., U.S. Dep’t of Justice, to All Federal Prosecutors, Department Charging and Sentencing Policy 1 (May 10, 2017), https://www.justice.gov/opa/press-release/file/965896/download. 2018] CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA 3 deviate from this mandate requires approval by the chief federal prosecutor of the judicial district.11 The same supervisory approval is required for prosecutorial decisions to depart downward from the federal sentencing guidelines.12 The memorandum also directs federal prosecutors to partner with local law enforcement agencies to identify and prosecute suspects believed responsible for “significant violent crime.”13 In addition, the memo rescinds then-Attorney General Eric Holder’s 2013 directive that federal prosecutors should avoid charges to which mandatory minimum sentences would apply to certain low-level non-violent drug offenders.14 Executive-branch policy aside, Sessions has remained staunchly opposed to legislative sentencing reform, even when his stance puts him at odds with congressional Republicans and other conservatives.15 For example, during President Trump’s first year in office, Republican Senator Charles Grassley introduced a criminal justice reform bill that included provisions curtailing the applicability of mandatory minimums and reducing enhanced penalties for previous drug crimes.16 Attorney General Sessions, citing concerns about rising violent crime rates, wrote Grassley a letter calling the bill a “grave error.”17 In addition, the Attorney General operationalized his own enthusiasm for aggressive drug prosecutions, an enthusiasm which the President shares, by issuing a memorandum “strongly encourag[ing]” United States Attorneys to pursue the death penalty in drug trafficking and related prosecutions.18 The Attorney General’s zeal for

11. Id. 12. Id. 13. Id. 14. Id.; Memorandum from Eric Holder, U.S. Att’y Gen., U.S. Dep’t of Justice, to U.S. Att’ys and Assistant Att’y Gen. for the Crim. Div., Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Aug. 12, 2013), https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-memo- department-policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-in- certain-drugcases.pdf; see also Memorandum from Eric Holder, U.S. Att’y Gen., U.S. Dep’t of Justice, to All Federal Prosecutors, Department Policy on Charging and Sentencing (May 19, 2010), https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/holder-memo- charging-sentencing.pdf (setting policy of individualized considerations during charging, plea bargaining, and sentencing). 15. See Taylor Dolven, Jared Kushner’s Prison Reforms Hit a Brick Wall Called Jeff Sessions, VICE NEWS (Jan. 17 2018), https://news.vice.com/en_ca/article/wjpkey/jared- kushners-prison-reforms-hit-a-brick-wall-called-jeff-sessions (“Attorney General Jeff Sessions opposes reforming mandatory minimum sentencing and effectively blocked it from becoming part of the White House [criminal justice] reform agenda . . . .”); id. (exhibiting Sessions’s commitment to mandatory minimums as contrary to those of Republican Senators Chuck Grassley and Sam Brownback as well as those of some Republican governors). 16. See Sentencing Reform and Corrections Act of 2017, S. 1917, 115th Cong. (2017). 17. Letter from Jeff Sessions, U.S. Att’y Gen. U.S. Dep’t of Justice, to Senator Charles Grassley on the Sentencing Reform and Corrections Act of 2017 1 (Feb. 14, 2018), https://www.politico.com/f/?id=00000161-966d-da6b-ade9-fefd38e20001. 18. See Memorandum from Jeff Sessions, U.S. Att’y Gen., U.S. Dep’t of Justice, to U.S. Att’ys on Guidance Regarding Use of Capital Punishment in Drug-Related Prosecutions (Mar. 20, 2018), https://www.justice.gov/file/1045036/download; Kevin Johnson & Gregory Korte, Attorney General Jeff Sessions: Feds Should Pursue Death 4 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI1 maximum penalties is also sharply out of step with evolution in public opinion on criminal justice policy over the past thirty years, though the Reagan era is one to which he has explicitly anchored his positions.19 Attorney General Sessions’s resistance to bipartisan sentencing reform and departure from Obama-era prosecution policies certainly might grow the rolls of people sent to federal prisons, which had begun to fall during the previous Administration. In fact, even those efforts left nearly half of all remaining federal prisoners to serve time for drug offenses, and ratcheting up federal drug prosecutions seems like a sure-fire way to refill emptying federal prison beds.20 Another policy likely to return people to federal prisons is Sessions’s Bureau of Prisons’ restriction of resources for federal halfway houses and community corrections.21 In response to that directive, a bipartisan coalition of senators urged maintaining resources for community-based services, recognizing that challenges with housing and employment for incarcerated people returning to their communities drive recidivism.22 Moreover, slashing contracts with post- release transitional housing facilities stands in sharp contrast with President Trump’s modest statements supporting enhancing opportunities for prisoners’ successful reentry.23 The Trump Justice Department’s policies, and the rhetoric behind them, are without a doubt a threat to criminal justice reform and to the Obama Administration’s rollback of charging and sentencing policies that have fueled mass incarceration.24 These policies will also reinforce the racial disparities

Penalty in Some Cases, USA TODAY (Mar. 21, 2018), https://www.usatoday.com/story/news/politics/2018/03/21/attorney-general-jeff-sessions- feds-should-pursue-death-penalty-some-drug-cases/445591002/ (describing the Attorney General as “[f]ollowing President Trump’s lead” on urging capital prosecution of some drug cases). 19. See id.; Amelia Thomson-Deveaux, Jeff Sessions Is Trying to Take Criminal Justice Back to the 1990s, FIVETHIRTYEIGHT (Feb. 7. 2018), https://fivethirtyeight.com/ features/jeff-sessions-is-trying-to-take-criminal-justice-back-to-the-1990s/ (comparing Attorney General Sessions’s commitment to mandatory minimums, the death penalty, and drug policy to public opinion polling on the issues). 20. CARSON, supra note 6, at 1 (reporting this statistic as of September 2016, the last date from which data was available). 21. See NATHAN JAMES, CONG. RESEARCH SERV., RL34287, OFFENDER REENTRY: CORRECTIONAL STATISTICS, REINTEGRATION INTO THE COMMUNITY, AND RECIDIVISM 1 (Jan. 12, 2015), https://fas.org/sgp/crs/misc/RL34287.pdf. 22. See Eli Watkins, Bureau of Prisons Ending Contracts with Sixteen Halfway Houses, CNN (Nov. 20, 2017), https://amp.cnn.com/cnn/2017/11/20/politics/bureau-of- prisons-mark-inch-jeff-sessions/index.html. 23. See President Donald Trump, State of the Union 2018 (Jan. 30, 2018), https://www.cnn.com/2018/01/30/politics/2018-state-of-the-union-transcript/index.html (promising prison reform to help “former inmates who have served their time get a second chance”); Matt Ford, A Chance for Criminal Justice Reform Under Trump, NEW REPUBLIC (Feb. 5, 2018), https://newrepublic.com/article/146940/chance-criminal-justice-reform- trump (citing President Trump’s comments during the 2018 State of the Union commending criminal justice reform efforts at the state level designed to reduce recidivism). 24. See U.S. DEP’T OF JUST., OFFICE OF THE INSPECTOR GEN., REVIEW OF THE DEPARTMENT’S IMPLEMENTATION OF PROSECUTION AND SENTENCING REFORM PRINCIPLES 2018] CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA 5 that have flourished even under previous, less explicitly punitive, administrations.25 On the other hand, focus on federal executive branch directives risks distracting energy that progressives should continue to pour into supporting criminal justice reforms proposed by people and agencies across the political spectrum, particularly in the states, where 87% of people incarcerated in America’s prisons serve time.26 Moreover, tough-on-crime rhetoric such as the Trump Administration’s is often deployed in the name of crime victims. Some crime victims do support punitive policies as a basis for redressing their harms or protecting their safety. However, for reasons I explain below, criminal justice reformers, including defense lawyers, must engage crime victims meaningfully to counter unwarranted or overly simplistic reliance on incarceration as a universal salve for the very real fissures that crime visits on too many communities. These principles suggest a way forward for criminal justice reform in the Trump era. To borrow a phrase from the civil rights workers who put their bodies on the line to dismantle Jim Crow, criminal justice progressives seeking to dismantle mass incarceration need to “keep on keeping on.”27 They must remain aware of threats to their momentum while maintaining steadfast commitment to their missions. A three-point strategy provides a practical, though by no means exhaustive, framework for progress: First, reward, replicate, and expand bipartisan reform efforts at the local level; second, maintain a reform agenda that addresses violent crime; and third, engage crime

UNDER THE SMART ON CRIME INITIATIVE (June 2017), https://oig.justice.gov/ reports/2017/e1704.pdf (finding that Attorney General Holder’s Smart on Crime Initiative resulted in significant reduction of mandatory minimum sentences imposed on drug offenders, including those with two criminal history points, and in a reduction in the application of recidivist sentencing enhancements); Letter from Federal Public & Community Defenders to Senators Chuck Grassley and Dianne Feinstein re: Sentencing Reform and Corrections Act of 2017 (S. 1917) and Smarter Sentencing Act of 2017 (S. 1933) (Oct. 31, 2017), http://blog.federaldefendersny.org/wp-content/uploads/2017 /11/Letter-to-Senators-Grassley-and-Feinstein-re-Sentencing-Reform.10.31.17.pdf (citing statistics showing that since Congress enacted mandatory minimum sentences in 1986 to its highest point in 2013, the federal prison population quintupled). 25. See Hon. Lynn Adelman, How Congress, the U.S. Sentencing Commission and Federal Judges Contribute to Mass Incarceration, LITIG., Fall 2017, at 8; see U.S. SENTENCING COMM’N, supra note 8 (finding that drug mandatory minimums continued to result in long federal prison sentences and that racial disparities persist in sentence length in cases with mandatory minimum). 26. See German Lopez, The Case for Optimism on Criminal Justice Reform - Even Under President Trump, VOX (Nov. 10, 2016), https://www.vox.com/policy-and- politics/2016/11/10/13580644/president-trump-criminal-justice-2016; see also JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION AND HOW TO ACHIEVE REAL REFORM 13 (2017). 27. See, e.g., Bill Chappell, Integrating A Southern Giant: A Pioneer Looks Back, NATIONAL PUBLIC RADIO (Jan. 7, 2011), https://www.npr.org/2011/01/07/132712913/a- pioneer-looks-back-50-years-after-making-history (“When asked how she would like people in 2011—especially today’s college students—to view the civil rights era, [Charlayne] Hunter-Gault says, ‘I think that the thing that we learned back in the day of the civil rights movement is that you do have to keep on keeping on.’”). 6 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI1 victims and formerly incarcerated people as co-architects of a new framework for justice.

I. THREE PROPOSALS

A. Reward, Replicate, and Expand Local Reforms

The building blocks of mass incarceration were laid by countless state and federal politicians, policymakers, prosecutors, and judges for the past four decades.28 By the same token, unraveling mass incarceration will depend on state and local reforms. This is because, of the approximately 2.2 million people incarcerated in American prisons and jails, two million are serving time in state facilities, and only about 200,000 in federal penitentiaries.29 The good news for progressives is that new initiatives have begun in many places, and federal policy will have little, if any, detrimental effect on most state and local reforms.30 For example, starting in 2007, Texas enacted a series of bills that have collectively reduced its incarceration rate by an estimated 20% and saved $4 billion.31 Texas’s crime rate has fallen by 30% during the same period.32 In 2017, Louisiana, which voted for President Trump by 58% and has the highest incarceration rate in the world, passed a bipartisan suite of bills aimed at reducing the state’s prison population by 10% and the parole and probation population by 12% over the next decade.33 Louisiana’s new laws reclassify some felonies, increase judicial discretion in sentencing, reduce post-release supervision times for some offenses, and ease collateral consequences on people released from prison.34 Pushback from Louisiana law enforcement groups curtailed additional reforms that would have applied to more people

28. See PFAFF, supra note 26, at 128-34; JAMES FORMAN JR., LOCKING UP OUR OWN: CRIME AND PUNISHMENT IN BLACK AMERICA 13-14, 148 (2017). 29. See E. ANN CARSON, U.S. DEP’T OF JUST., BUREAU OF JUST. STAT., NCJ 248955, PRISONERS IN 2014 (Sept. 2015), https://www.bjs.gov/content/pub/pdf/p14.pdf; WORLD PRISON BRIEF, UNITED STATES OF AMERICA, http://www.prisonstudies.org/country/united- states-america (last accessed Jan. 4, 2018). 30. See Lopez, supra note 26; SENTENCING PROJECT, TOP TRENDS IN STATE CRIMINAL JUSTICE REFORM, 2017 (Jan. 2018), https://www.sentencingproject.org/publications/top- trends-state-criminal-justice-reform-2017/. 31. Lorelei Laird, States Featuring Bipartisan Support Rally for Criminal Justice Reform, ABA JOURNAL (Dec. 2017), http://www.abajournal.com/magazine/article/ criminal_justice_reform_louisiana_alaska. 32. Id. 33. CNN POLITICS ELECTION 2016, LOUISIANA RESULTS, http://www.cnn.com/election/results/states/louisiana (last accessed Apr. 1, 2018); Julia O’Donoghue, Louisiana Criminal Justice Reform: What You Need to Know About the Changes, TIMES-PICAYUNE (June 29, 2017), http://www.nola.com/politics/index.ssf/2017/06/ louisiana_criminal_justice_ref_1.html. 34. Id. 2018] CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA 7 convicted of violent crimes.35 The bills, which included some protections for crime victims, nevertheless passed with bipartisan support and are expected to save the state $252 million over 10 years, 70% of which will be reinvested in crime-prevention initiatives.36 In New Mexico and Oklahoma, Election Day 2016 also brought progressive criminal justice reforms.37 New Mexico passed a constitutional amendment that no one may be jailed because of inability to afford bail.38 Oklahomans, who voted for President Trump by 65.3%, at the same time voted to reduce prison sentences by reclassifying certain offenses from felonies to misdemeanors as well as to establish a rehabilitation fund for mental health and drug abuse treatment.39 In the past six years, Connecticut also has put into place several reforms aimed at reducing mass incarceration. The state abolished the death penalty and legalized small amounts of marijuana. Moreover, it enacted “Second Chance” legislation that eases the way for people convicted of nonviolent crimes to apply for pardons and parole and reduces penalties for drug possession. Finally, new policies curbed the use of solitary confinement for juveniles in state prisons.40 During Governor Dannel Malloy’s tenure, the number of men in Connecticut prisons has fallen by 20%, and the number of incarcerated women has fallen by 7%.41 At the same time, the state has led the nation in declining violent crime, which went down by 20% from 2012 to 2016.42 These results from multiple states, including states that went red in 2016, strongly suggest that people across the political spectrum support common- sense initiatives to reduce jail and prison populations. In the past several years, prosecutors’ elections have also signaled a strong local appetite for criminal justice reform. Voters in Corpus Christi, Houston, Orlando, Philadelphia, Milwaukee, Chicago, and several other jurisdictions have elected prosecutors promising changes that will reduce the number of people their offices send to prison.43 As candidates, they ran on platforms that

35. Laird, supra note 31. 36. Id. 37. Lopez, supra note 26. 38. Id. 39. See POLITICO, 2016 OKLAHOMA PRESIDENTIAL ELECTION RESULTS, https://www.politico.com/2016-election/results/map/president/oklahoma/ (last accessed Jan. 4, 2018); Lopez, supra note 26. 40. Josh Jacobs, How Long Can Connecticut’s Prison Reform Last?, ATLANTIC (July 15, 2017), https://www.theatlantic.com/politics/archive/2017/07/connecticut-prison- malloy/533565/. 41. Id. 42. Jake Kara, Connecticut Crime Report: Murders Down a Lot, Violent Crime Up a Bit, CT MIRROR, (Sept. 27, 2017), https://ctmirror.org/2017/09/25/connecticut-crime-report- murders-down-a-lot-violent-crime-up-a-bit/. 43. Henry Gass, Meet a New Breed of Prosecutor, CHRISTIAN SCI. MONITOR (July 17, 2017), https://www.csmonitor.com/USA/Justice/2017/0717/Meet-a-new-breed-of- prosecutor; David Alan Sklansky, The Progressive Prosecutor’s Handbook, 50 UC DAVIS L. 8 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI1 included declining to prosecute minor offenses, channeling drug offenders to rehabilitation programs, ending cash bail, and opting against capital prosecutions.44 These developments in the states and counties, which are, after all, where the vast majority of criminal justice is dispensed, prove that momentum continues toward reforms designed to reduce the number of people in prison.45 As noted above, Attorney General Sessions’s directives may very well have a serious impact on federal prosecutions and cause many thousands to spend more time in prison than they would have if his predecessors’ policies were still in place. That is certainly cause for serious concern. At the same time, it is critical to keep sight of the strong signals that voters are sending to their local elected officials to resist policies contributing to over-incarceration. Voters are also maintaining the pressure on members of Congress, many of whom are taking notice. As noted, supra, in 2017, bipartisan senators and members of the House introduced the Sentencing Reform and Corrections Act and the Smarter Sentencing Act, which proposed to increase judicial discretion, expand the use of probation, expand funding for community policing and crime-reduction initiatives, and reduce mandatory minimums.46 Progressives should remain clear-eyed about challenges posed by the federal executive while rewarding local officials who implement a reformist agenda, replicating those agendas by organizing around them, and supporting those who build upon them in other parts of the country.

B. Maintain a Reform Agenda that Addresses Violent Crime

In light of the Trump Administration’s portrayal of a nation threatened by rising violence as justification for its punitive directives, an examination of current crime statistics is a sound place to begin.47 The homicide rate indeed increased by nearly 20% from 2014 to 2016.48 However, it remains at half of

REV. 25, 25-27 (2017). 44. Gass, supra note 43. 45. See Kelly Cohen, Criminal Justice Reform Poised to Take Off in 2018, WASH. EXAMINER (Dec. 30, 2017), http://www.washingtonexaminer.com/criminal-justice-reform- poised-to-take-off-in-2018/article/2644603. 46. John Bowden, Bipartisan Duo Offer Criminal Justice Reform Legislation, HILL (Nov. 7, 2017), http://thehill.com/homenews/house/359122-reps-look-to-scale-back- criminal-justice-system-with-bipartisan-legislation. 47. See German Lopez, Trump: The Murder Rate is at a 45-Year High. Actual Statistics: That’s Not Remotely True, VOX (Feb. 7, 2017), https://www.vox.com/2016/10/12/13255466/trump-murder-rate (reporting that President Trump stated incorrectly that the murder rate in February 2017 was at a 45-year high; in fact, it was at 4.9 per 100,000 people; in 1970, it was at 7.9 per 100,000). 48. See Press Release, Federal Bureau of Investigation, FBI Releases 2016 Crime Statistics (Sept. 25, 2017), https://www.fbi.gov/news/pressrel/press-releases/fbi-releases- 2016-crime-statistics; FEDERAL BUREAU OF INVESTIGATION UNIFORM CRIME REPORTING, CRIME IN THE U.S. BY VOLUME AND BY RATE PER 100,000 INHABITANTS, 1996-2015, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-1 (last accessed 2018] CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA 9 the peak it reached in the 1990s, and most of the increase was concentrated in a few cities.49 Moreover, experts disagree about whether violent offenses other than homicides have risen over the same period, and statistics establish that violent crime continues to fall substantially in some major cities.50 For example, 2017 statistics show that New York City’s crime rate fell 6% across each major felony category, from an already historic low in 2016.51 This reduction took place during years in which New York City’s police made fewer arrests, curtailed their use of stop-and-frisk practices deemed unconstitutional, and reduced their use of deadly force.52 Recent crime statistics aside, it is indisputable that the majority of American prisoners are serving time for violent offenses and that any meaningful dismantling of mass incarceration will need to reckon with punishment for violent offenses.53 As noted, Trump and Sessions have invoked the purported uptick in violence to justify across-the-board aggressive prosecution.54 Yet, meaningfully reducing America’s prison population requires resisting the urge to limit reform agendas to non-violent offenders. This has proven challenging even to policymakers supportive of reducing incarceration rates.55 For example, New York Governor Andrew Cuomo

Apr. 1, 2018). 49. See Hanna Kozlowska, The US Murder Rate Was Up Again—and 20% of the National Increase Came in Chicago, QUARTZ (Sept. 25, 2017), https://qz.com/1086403/fbi- crime-statistics-us-murders-were-up-in-2016-and-chicago-had-a-lot-to-do-with-it/. 50. See Timothy Williams, Violent Crime Rises in U.S. for Second Straight Year, N.Y. TIMES (Sept. 25, 2017), https://www.nytimes.com/2017/09/25/us/violent-crime-murder- chicago-increase-.html; Jeff Asher, Why We Can’t Be Sure Violent Crime Is on the Rise, FIVETHIRTYEIGHT (Dec. 7, 2017), https://fivethirtyeight.com/features/why-we-cant-be-sure- if-violent-crime-is-on-the-rise/; Keith Humphreys, We Were Told Violent Crime Rose in 2016. That May Not Be True, WASH. POST (Dec. 7, 2017), https://www.washingtonpost.com/ news/wonk/wp/2017/12/07/we-were-told-violent-crime-rose-in-2016-that-may-not-be- true/?utm_term=.a9e59d5444e8. 51. See Ashley Southall, Crime in New York City Plunges to a Level Not Seen Since the 1950s, N.Y. TIMES (Dec. 27, 2017), https://www.nytimes.com/2017/12/27/nyregion/new- york-city-crime-2017.html. 52. Id. 53. See CARSON, supra note 29, at 1 (“Violent offenders made up 54% of the state male prison population at yearend 2013 . . . .”); Pfaff, supra note 26, at 3, 5-6, 11-12. 54. Williams, supra note 50. 55. See President Barack Obama, Remarks at the NAACP Conference (July 14, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/07/14/remarks-president-naacp- conference (noting the human and fiscal cost of America’s high incarceration rate and describing bipartisan efforts to reduce prison populations in state and federal prisons, yet asserting that violent criminals belong behind bars, even though “[t]hey may have had terrible things happen to them in their lives”); Holder Mandatory Minimum Memorandum (2013), supra note 14; Karoun Demirjian, Bipartisan Senate Group Unveils Latest Attempt at Sentencing Overhaul, WASH. POST (Oct. 4, 2017), https://www.washingtonpost.com/ powerpost/bipartisan-senate-group-unveils-latest-attempt-at-sentencing-reform/2017/10/04/ 71d5ccea-a94b-11e7-850e2bdd1236be5d_story.html? utm_term=.871407661a55 (reporting on bipartisan mandatory minimum reform bill and noting that it aims to reduce penalties for non-violent offenders and offenders with limited criminal histories, while focusing the penalties on violent criminals and ones with longer records). 10 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI1 proposed a suite of criminal justice reforms aimed at reducing incarceration and recidivism, but limited a major component, elimination of cash bail, to defendants facing misdemeanor or non-violent charges.56 In contrast, Alaska has adopted bail reform that will use a two-tiered point system, applicable to all defendants, to assist judges’ assessments of suitability for pre-trial release without cash bonds.57 In addition to bail reform, innovations that encourage proportionate sentencing for all defendants, and the availability of appropriate post- conviction remedies for all prisoners, remain crucial to reducing prison populations.58 Promoting individualized sentencing and supporting policies that afford people convicted of offenses defined as violent meaningful shots at parole and other post-conviction relief are essential to unwinding mass incarceration.59 Permitting avenues for sentencing and post-conviction relief that consider the circumstances of the offender and not only the offense are crucial to evolving the understanding of root causes of crime.60 This is so because competent sentencing and post-conviction advocacy requires investigation into defendants’ or prisoners’ backgrounds to uncover interdisciplinary explanations for why they broke the law and of their prospects for, or progress toward, rehabilitation.61 For this reason, universal eligibility for individualized sentencing criteria and post-conviction remedies, informed by robust defense advocacy, has the potential to shift judges’, parole boards’, and policymakers’ conceptions of deserts and punishment. Specific proposals for legal reform that should apply to all defendants or prisoners include the following. First, lawmakers ought to pass legislation repealing mandatory minimum laws and affording judges discretion in sentencing for all categories of offenses.62 Second, state and federal legislators should pass bills fortifying habeas corpus and other post-conviction remedies that would permit prisoners, regardless of offense, to challenge the

56. See Press Release, Office of New York Governor Andrew Cuomo, Governor Cuomo Unveils 22nd Proposal of 2018 State of the State: Restoring Fairness in New York’s Criminal Justice System (Jan. 3, 2018), https://www.governor.ny.gov/news/governor- cuomo-unveils-22nd-proposal-2018-state-state-restoring-fairness-new-yorks-criminal. 57. See James Brooks, Goodbye Bail: Alaska Switches to New System of Criminal Justice, JUNEAU EMPIRE, (Jan. 1, 2018), http://juneauempire.com/state/news/2017-12- 20/goodbye-bail-alaska-switches-new-system-criminal-justice. 58. See Miriam S. Gohara, Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing, 41 AM. J. CRIM. L. 41, 45-48 (2013). 59. See Michael Tonry, Making American Sentencing Just, Humane, and Effective, 46 CRIME & JUST. 441, 487 (2017). 60. See Gohara, supra note 58, at 65-68. 61. Id. at 57-62. 62. U.S. SENTENCING COMM’N, 2011 REPORT TO CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 81 (2011) (reporting that the number of federal prisoners serving mandatory minimum sentences rose by 155% from 1995 to 2010); see also LEIGH COURTNEY ET AL., URBAN INSTITUTE, A MATTER OF TIME: THE CAUSES AND CONSEQUENCES OF RISING TIME SERVED IN AMERICA’S PRISONS (July 2017), http://apps.urban.org/features/long-prison-terms/a_matter_of_time.pdf. 2018] CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA 11 constitutionality of their convictions and sentences and would afford both state and federal courts substantive review. Third, state lawmakers ought to reform parole processes that, regardless of evidence of rehabilitation, rubber-stamp denials for prisoners convicted of serious offenses.63 Fourth, governors should comprise parole boards of members who are qualified to assess prisoners’ readiness for successful release and who serve determinate terms that insulate them from political backlash.64 Additionally, parole revocation procedures should include a right to counsel for indigent parolees and substantive criteria requiring hearing examiners to consider mitigating evidence as well as evidence of innocence of the alleged parole violation.65 Reforming sentencing and post-conviction laws is essential to dismantling mass incarceration. However, even within existing legal frameworks, lawyers play an essential role in ensuring that sentences are proportionate, regardless of the offenses for which they are imposed. Prosecutors of course wield wide discretion in making charging decisions and sentencing recommendations that impact how much time defendants will serve.66 But since the middle of the last century, dedicated and vigilant defense lawyers have been an important check on a system increasingly bent on imposing lengthy prison terms.67 As I have written elsewhere, one way of changing judges’, prosecutors’, and policymakers’ understanding of the circumstances of people charged with serious, including violent, offenses is through robust defense sentencing practice.68 Defense teams’ deep sentencing advocacy, including detailed and interdisciplinary presentations of their clients’ mitigating circumstances, effectively erodes the notion that people who commit offenses classified as violent are undeserving of mercy.69 For example, students in Yale Law School’s Challenging Mass Incarceration Clinic, in partnership with the federal defender’s office for the

63. ELIZABETH PELLETIER, URBAN INSTITUTE, ASSESSING THE IMPACT OF SOUTH CAROLINA’S PAROLE AND PROBATION REFORMS (Apr. 24, 2017), https://www.urban.org/sites/default/files/publication/89871/south_carolina_jri_policy_assess ment_final_1.pdf. 64. See Stefan J. Bing, Reconsidering State Parole Board Membership Requirements in Light of Model Penal Code Sentencing Revisions, 100 KY L.J. 871 (2011); Maura Ewing, Why So Few Violent Offenders Are Let Out on Parole, ATLANTIC (Aug. 29, 2017), https://www.theatlantic.com/politics/archive/2017/08/why-so-few-violent-offenders-are-let- out-on-parole/538305/. 65. See ASLI BASHIR ET AL., SAMUEL JACOBS CRIMINAL JUSTICE CLINIC, JEROME N. FRANK LEGAL SERVICES ORGANIZATION, PAROLE REVOCATION IN CONNECTICUT: OPPORTUNITIES TO REDUCE INCARCERATION (Sept 2017), https://law.yale.edu/system/ files/area/clinic/document/cjc_parole_revocation_report.final.9.21.17.pdf. 66. See David Alan Sklansky, The Problems with Prosecutors, 1 ANN. REV. CRIMINOLOGY 451, 456 (2018). 67. See Charles J. Ogletree, Jr., An Essay on the New Public Defender for the 21st Century, 58 L. & CONTEMP. PROBS., 81, 82 (1995). 68. See Gohara, supra note 58 at 83-84. 69. Id. at 54; Miriam S. Gohara, In Defense of the Injured: How Trauma-Informed Criminal Defense Can Reform Sentencing (forthcoming), AM. J. CRIM. L. (2018). 12 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI1

District of Connecticut, are pioneering intensive mitigation practices that have changed the focus of sentencing hearings. Rather than permitting those hearings to center primarily on defendants’ criminal behavior, the clinic, alongside the federal defenders, has shifted the focus to interdisciplinary records of defendants’ histories of trauma, poverty, addiction, and the resulting behavioral difficulties that contributed to their offenses. Even in cases involving violent crimes or serious offenses such as firearm trafficking, this deep dive into social history mitigation has spared clinic clients years in prison, or resulted in application of the bare minimum mandatory punishment.70 At the same time, the clinic’s model is influencing local practice and enriching the baseline background judges are learning about defendants facing lengthy prison terms.71 In addition, the comprehensive mitigation model of practice is pointing to social safety nets, medical care, addiction treatment, and anti-poverty programs as antidotes to offending. This practice demonstrates why criminal justice reformers should not permit the Trump Administration’s fear-inducing rhetoric to derail efforts at reforms that strike at the heart of inflated sentencing. Reformers would stray off course were they to limit their agendas only to low-level, nonviolent defendants or prisoners. Doing so would surely interrupt the slow but building movement toward a justice system that accounts for the humanity and rehabilitation that many defendants deserve, regardless of their offenses of conviction.

C. Engage with Crime Victims and Formerly Incarcerated People as Co- Architects of a New Framework for Justice

Aside from a purportedly rising tide of violent crime, another pillar of the

70. In the Challenging Mass Incarceration Clinic, we have been able to obtain reduced sentences for our clients by presenting a holistic picture of our clients’ social histories to the Court. See, e.g., Plea Agreement at 4, United States v. James Cave, No. 3:15-cr-00083-JAM (D. Conn. Nov. 5, 2015), ECF No. 28 (guidelines recommended sentence of 57 to 71 months’ imprisonment for gun trafficking); Defendant’s Sentencing Memorandum at 41, Cave, ECF No. 28 (defendant asked for sentence of time served and three years of supervised release based on history of trauma, drug and alcohol dependence, and evidence of rehabilitation); Judgment at 1, Cave, ECF No. 67 (entered sentence of 12 months and 1 day imprisonment). See also Plea Agreement at 5, United States v. Thomas Recck, No. 3:15-cr- 00015-JAM (D. Conn. Feb. 4, 2015), ECF No. 4 (guidelines recommended sentence of 21 to 27 months’ imprisonment); Defendant’s Sentencing Memorandum at 4-5, Recck, ECF No. 30 (defendant asked for sentence of four to five years’ probation based on client’s history of trauma, addiction, and extraordinary rehabilitation); Judgment at 1, Recck, ECF No. 37 (entered sentence of five years’ probation); Plea Agreement at 5, United States v. Roberto Vasquez, 3:14-cr-00107-JCH (D. Conn. May 3, 2016), ECF No. 80 (guidelines recommended sentence of 235 to 240 months’ imprisonment for possession of a stolen firearm); Defendant’s Sentencing Memorandum at 27-28, Vasquez, ECF No. 50 (defendant asked for below-guideline sentence based on history of child abuse, poverty, and mental and physical illness), Judgment at 1, Vasquez, ECF No. 109 (entered sentence of six years in prison, with credit for time served). 71. See, e.g., Cave, Recck, and Vasquez Sentencing Memoranda, supra note 70. 2018] CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA 13

Trump Administration’s justification for aggressive law enforcement and prosecution is that they are essential to protecting victims.72 In this regard, the President and Attorney General are neither innovative nor alone. For much of the past half century, policymakers and prosecutors of all political stripes have invoked crime victims’ rights to support a belief that redressing their harms necessitates the harshest possible punishment applicable to a given offense.73 In fact, protecting victims in the neighborhoods most impacted by crime has been a civil rights issue that some African-American politicians have used to denounce penalties—even for what many would now call low-level, non- violent drug offenses—they cast as too lenient.74 The death penalty, America’s anchor punishment, is often imposed in victims’ names.75 Yet capital defense teams have for decades engaged with their clients’ victims’ survivors to reach agreement that an execution is far from essential for justice.76 The more proximate criminal justice policymakers become to survivors of crime, the less possible it will be to ignore that more prison is not a true and lasting prescription for safety. This is because the underlying conditions that give rise to serious crime—concentrated poverty, dislocated parents, cycles of family abuse and addiction—are ones that prison only exacerbates.77 In recent years, groups of crime survivors have begun to use their influence to urge another way forward to safety and justice.78 Engaging with their organizations

72. See, e.g., Jeff Sessions, Opinion, Being Soft on Sentencing Means More Violent Crime. It’s Time to Get Tough Again, WASH. POST (June 16, 2017), https://www.washingtonpost.com/opinions/jeff-sessions-being-soft-on-sentencing-means- more-violent-crime-its-time-to-get-tough-again/2017/06/16/618ef1fe-4a19-11e7-9669- 250d0b15f83b_story.html?utm_term=.542027e20424 (“There are those who are concerned about the fate of drug traffickers, but the law demands I protect the lives of victims that are ruined by drug trafficking and violent crime infecting their communities. Our new, time- tested policy empowers police and prosecutors to save lives.”). 73. See Alice Koskela, Victim’s Rights Amendments: An Irresistible Political Force Transforms the Criminal Justice System, 34 IDAHO L. REV. 157, 163-66 (1997); see also Elayne Rapping, Television, Melodrama, and the Rise of the Victims’ Rights Movement, 43 N.Y.L. SCH. L. REV. 665, 669-72 (2000). 74. See, e.g., FORMAN, supra note 28, at 124-29; RANDALL KENNEDY, RACE, CRIME, AND THE LAW 10-12 (1997). 75. An anchor punishment is one that defines the scale of all other punishment in a given jurisdiction. The death penalty obscures the harshness of other penalties, such as life without the possibility of parole, that would, in the absence of capital punishment, stand out as their own human rights violations. See generally Markus Dirk Dubber, Regulating the Tender Heart When the Axe Is Ready to Strike, 41 BUFF. L. REV. 85, 86-92 (1993) (summarizing increasingly central role of victims’ rights and participation in capital proceedings). 76. See Mickell Branham & Richard Burr, Understanding Defense-Initiated Victim Outreach and Why It Is Essential in Defending a Capital Client, 36 HOFSTRA L. REV. 1019, 1022-23 (2008). 77. See CRAIG HANEY, U.S. DEP’T OF HEALTH & HUMAN SERVS., URBAN INSTITUTE, “FROM PRISON TO HOME” CONFERENCE, The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment 15-16 (Jan. 2002), https://aspe.hhs.gov/system/ files/pdf/75001/Haney.pdf 78. See, e.g., SUSAN BURTON & CARI LYNN, BECOMING MS. BURTON: FROM PRISON TO 14 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI1 promises to be a powerful antidote to the suggestion that victims’ protection depends on putting defendants, many of whom have been serially victimized themselves, away for years, only to return to communities more deeply scarred and criminally savvy.79 In June 2017, two of my Yale Law students saw this principle in practice.80 They represented a Connecticut prisoner who was eligible for parole under a statute that required reconsideration of lengthy sentences imposed on juveniles.81 Our client had, at the age of fifteen, sexually assaulted a teenage woman he encountered on the street and followed home. A decade later, he was a person full of remorse for his terrible crime. His victim attended his parole hearing, and he apologized to her directly. A conversation with our co-counsel at the local public defender’s office had given her a sense of our client’s state of mind. She had called the public defender before the hearing with questions about our client and about the parole process. This defense contact with the victim proved pivotal at the hearing. She listened intently to our client’s apology and to the description of his life at the time he assaulted her. She heard him describe his parents’ abandonment, his becoming essentially homeless in his early teens, and his developing a raging drug addiction while living on the street. She then, through a victim’s liaison, delivered a statement describing why she supported parole for her assailant. Among her many powerful expressions, she recounted that she, too, had been abandoned and was living alone when our client followed her home. While she did not see their similarity in circumstance as any excuse for the grievous harm our client caused her, she explained that his act caused her to dedicate her life to working with children whom she characterized as “just like us.” Our client’s victim’s experience gave

RECOVERY TO LEADING THE FIGHT FOR INCARCERATED WOMEN (2017) (recounting the story of a formerly incarcerated woman who became an advocate for criminal justice reform); CRIME SURVIVORS FOR SAFETY AND JUSTICE, http://cssj.org (last accessed Apr. 1, 2018) (organization of crime survivors advocating for less punitive criminal justice reform); COMMON JUSTICE, http://www.commonjustice.org/ (last accessed Apr. 1, 2018) (organization promoting consensual mediation programs between victims and offenders as alternative to incarceration). 79. See ALLEN J. BECK ET AL., U.S. DEP’T OF JUST., BUREAU OF JUST. STAT., NCJ 241399, SEXUAL VICTIMIZATION IN PRISONS AND JAILS REPORTED BY INMATES, 2011-12 6-7 (May 2013), https://www.bjs.gov/content/pub/pdf/svpjri1112.pdf; Jing Shi & Nancy Wolff, Contextualization of Physical and Sexual Assault in Male Prisons: Incidents and Their Aftermath, 15 J. CORRECTIONAL HEALTH CARE 58, 64 (2009); Jamie Fellner, Callous and Cruel: Use of Force Against Inmates with Mental Disabilities in US Jails and Prisons, HUMAN RIGHTS WATCH (May 2015), https://www.hrw.org/report/2015/05/12/callous-and- cruel/use-force-against-inmates-mental-disabilities-us-jails-and; M. Keith Chen & Jesse M. Shapiro, Does Prison Harden Inmates? A Discontinuity-Based Approach, COWLES FOUND., Discussion Paper No. 1450, 2-3 (Jan. 2004), https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=470301 (finding that harsh prison conditions are correlated with increased likelihood of re-offending). 80. Facts from this section are supported by the transcript of our client’s parole hearing, which are on file with the author. In order to protect the privacy of our client and his victim, no names or identifying information are provided. 81. CONN. GEN. STAT. § 54-91g (2016). 2018] CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA 15 her the insight to know that additional prison time would serve no productive purpose for someone truly remorseful and already years removed from the damaged early life that mirrored her own. As this case illustrates, defense lawyers and progressive reformers should take the time to listen meaningfully to what victims believe would provide them with true safety. Removing a single law-breaking person from a poverty- stricken community while doing nothing to address that community’s deprivations will do little to improve the lives of those who continue to live there. That holds true whether they are the survivors of a criminal episode presently in question, or whether they are now defendants, having been victims many times well before they violated the law.82 The reality that imprisoned people are also disproportionately victimized by crime creates a powerful opportunity for crime survivors who have served time in prison to join forces with those who have not to identify a reform agenda that treats everyone swept into the criminal justice system with humanity.83 Doing so will redefine accountability to crime survivors in a way that holds the people who have harmed them responsible while redressing (rather than exacerbating) the underlying social or medical conditions that so often explain why people break the law. A national survey of crime victims’ views on crime and punishment shows that they prefer, by a margin of two-to- one, that the criminal justice system focus more on rehabilitation than on punishment.84 They also prefer increased investment in mental health treatment over increased investment in prisons and jails by a margin of seven-to-one.85 Organizations such as Common Justice and Crime Survivors for Safety and Justice explicitly base their work on the premise that the needs of victims and those of people who break the law are often aligned.86 They offer and advocate for alternatives to incarceration for people who have been victimized and who

82. See James E. Reavis, Adverse Childhood Experiences and Adult Criminality: How Long Must We Live Before We Possess Our Own Lives?, PERMANENTE J. Spring 2013, 44, 45; ROBERT L. LISTENBEE, JR., ET AL., REPORT OF THE ATTORNEY GENERAL’S TASKFORCE ON CHILDREN EXPOSED TO VIOLENCE 107 (Dec. 12, 2012), http://www.justice.gov/ defendingchildhood/cev-rpt-full.pdf; Laurie Whitten, Addressing Trauma Among Incarcerated People, NAT’L INST. CORRECTIONS (2012), http://community.nicic.gov/blogs/ mentalhealth/archive/2012/10/05/addressing-trauma-among-incarcerated-people.aspx. 83. By some estimates, up to 75% of incarcerated men and women have experienced interpersonal violence, abuse, or childhood neglect. See LISTENBEE, supra note 82; Whitten, supra note 82. Statistics show that prisoners report rates of victimization by prior abuse up to twice that of the general population, and justice-involved youth experience chronic trauma at rates triple those of youth in the general population. See Whitten, supra note 82; Samantha Buckingham, Trauma Informed Juvenile Justice, 53 AM. CRIMINAL L. REV. 641, 654 (2016); LISTENBEE, supra note 82. 84. ALLIANCE FOR SAFETY AND JUSTICE, CRIME SURVIVORS SPEAK: THE FIRST-EVER NATIONAL SURVEY OF CRIME VICTIMS’ VIEWS ON SAFETY AND JUSTICE 15 (2016). 85. Id. at 19. 86. See Sarah Stillman, Black Wounds Matter, NEW YORKER (Oct. 15, 2015), https://www.newyorker.com/news/daily-comment/black-wounds-matter (describing the organizations Common Justice and Crime Survivors for Safety and Justice and their work). 16 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI1 later become violent offenders.87 Crime Survivors for Safety and Justice, for example, has created a network of survivors that advocates for legislation diverting funds from prisons into mental health programs, drug treatment, and victims’ services. The organization also advocates the creation of trauma centers in neighborhoods with high crime rates.88 Common Justice also offers an initiative that provides intensive treatment to both crime survivors and the people who have harmed them.89 Other reforms might include increasing community corrections resources so that while people are incapacitated following serious offenses, they are able to maintain ties to their children and families, thereby reducing remote parental incarceration, a major risk factor for future offending for children of parents who have served time.90 Progressives intent on reducing the cycle of harm that current criminal enforcement practices perpetuate ought to replicate these programs.91 Bringing together formerly incarcerated people and crime victims to organize and build a reform platform that meets their shared needs is a crucial and potent antidote to the current administration’s criminal justice agenda. After all, if crime survivors raise their voices to explain how their fortunes are so often indivisible from those of their neighbors who have broken the law, then policymakers’ insistence that lengthy prison terms are necessary to protect victims will ring hollow.

CONCLUSION

The President and the Attorney General of the United States, under any administration, are standard bearers on issues ranging from responses to large- scale domestic attacks to quotidian prosecutions of relatively minor offenses. Their pronouncements and policies set the tone for law enforcement authorities, survivors of crime, defendants, and prisoners nationwide. There can be no question that we must take their platforms seriously. The Trump Administration has from its inception made plain its view that aggressive prosecution and lasting punishment are pillars of its criminal justice agenda.

87. See id. (“[W]e must adjust our shared understanding of crime demographics to account for the fact that those most routinely portrayed as perpetrators are often at equal or greater risk of being victims.”). 88. Funding is available to support this work. See id. (describing Congressional allotment of $1.6 billion in new funds to be deployed to local organizations serving survivors of crime). 89. See COMMON JUSTICE, supra note 78. 90. See Francis T. Cullen et al., Reinventing Community Corrections, 46 CRIME & JUST. 27, 29-30, 36-37 (2017); Keva M. Miller, The Impact of Parental Incarceration on Children: An Emerging Need for Effective Interventions, 23 CHILD & ADOLESCENT SOC. WORK J. 472, 478 (2005) (discussing various risk factors for children with incarcerated parents, including finding that they are five to six times more likely to be involved in the criminal justice system than other youth). 91. See DANIELLE SERED, VERA INST. JUST., YOUNG MEN OF COLOR AND THE OTHER SIDE OF HARM, 1, 2, 4 (Dec. 2014), http://www.vera.org/sites/default/files/resources/ downloads/young-men-color-disparities-responses-violence.pdf. 2018] CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA 17

For many committed to ending mass incarceration, these positions understandably trigger alarm. We must continue to protest directives that will increase incarceration rates, when plenty of evidence suggests that doing so is counterproductive and unnecessary to protect the public.92 Indeed, the scope of public awareness and outcry by many, including a bipartisan group of politicians who uniformly agree that the new administration’s policies are ill- advised and retrograde, is a genuine basis for hope.93 With that in mind, progressives must stay focused and remain resolute in promoting deep and enduring reforms to reduce prison populations. In order to do so, we must continue to take our cues from voters around the country who have pushed their legislators to enact laws shortening sentences, increasing judicial discretion, and opening doors for post-conviction relief. We must keep sight of the fact that prosecutors running on platforms that take explicit aim at mass incarceration are winning elections in red and blue localities alike.94 We must not permit fearsome, inaccurate rhetoric about violent crime to derail policies that would ameliorate punishment of people convicted of offenses classified as violent. We must disprove the trope that the interests of survivors of crime and those of defendants are incompatible. Both are swept into the criminal justice system; protecting one does not require destroying the lives of the other. Rather, we must listen with humility when survivors of crime and formerly incarcerated people report their experiences and recommend reforms. We must build an enduring movement alongside them that will resist efforts to repopulate empty prison cells. We must build and support programs that will bring true and lasting safety and wellbeing to all communities and neighborhoods. That will be the most powerful safeguard against election of another administration that promotes and propagandizes heedless punishment.

92. See DON STEMEN, VERA INST. JUST., THE PRISON PARADOX: MORE INCARCERATION WILL NOT MAKE US SAFER 2 (July 2017), https://www.vera.org/publications/for-the-record- prison-paradox-incarceration-not-safer; Todd R. Clear, The Effects of High Imprisonment Rates on Communities, 37 CRIME & JUST. 97, 118-20 (2008). 93. See Letter from Senators Cory A. Booker, Richard Durbin, Mike Lee, & Rand Paul to Attorney General Jeff Sessions (June 7, 2017), https://www.scribd.com/document/ 350652153/6-7-17-Letter-to-the-Attorney-General-on-DOJ-Charging-and-Sentencing- Policy-FINAL-SIGNED; Rand Paul, Opinion, Sessions’ Sentencing Plan Would Ruin Lives, CNN (May 15, 2017), http://www.cnn.com/2017/05/15/opinions/sessions-is-wrong-rand- paul-opinion/index.html. 94. Maura Ewing, The Progressive Civil-Rights Lawyer Philadelphia Wants for District Attorney, ATLANTIC, (May 16, 2017), https://www.theatlantic.com/politics/archive/ 2017/05/philadelphia-district-attorney-election-reform/526812/; Gass, supra note 43. 18 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI1

POSITIVE EMOTIONS AND IMMIGRANT RIGHTS: LOVE AS RESISTANCE

Marisol Orihuela†

INTRODUCTION

Are you ready to win? Are you ready to fight? Are you ready to love?1

Within its first year, the Trump Administration has gained a notorious reputation for expressing anti-immigrant sentiment.2 Donald Trump himself, first as a candidate and then as President, has made extreme anti-immigrant statements and announced clearly anti-immigrant policies.3 So what does love have to do with Trump and immigration? Despite the clearly xenophobic sentiment expressed by President Trump and others in his Administration, expressions of hope, love, and compassion have been at the core of two highly visible pro-immigrant social movements: the sanctuary and Dreamer movements. While these emotions may not immediately come to mind when one thinks of activism and civil disobedience, they are strongly imbedded within the two movements and shed light on the resilience of these movements in the era of anti-immigrant sentiment by the federal government. The quote above was spoken at a rally in January 2018, on the eve of a government shutdown during stalled negotiations over legislation to provide immigration status to Dreamers, undocumented immigrant youth.4 The negotiations eventually fell apart despite bi-partisan support, in part due to the

† Clinical Associate Professor of Law, Yale Law School. 1. Nestor Ruiz (@_NestorRuiz), TWITTER (Jan. 19, 2018, 8:19 PM) (quoting video), https://twitter.com/_NestorRuiz/status/954523624202997760. 2. As one writer describes, “Donald Trump made his formal entry into politics with the racism and xenophobia that would become a hallmark of his lighting-rod candidacy and, ultimately, his first year in the Oval Office.” Maryam Saleh, One Year of Immigration Under Trump, THE INTERCEPT (Dec. 31, 2017, 9:00 AM), https://theintercept.com/2017/12/31/one- year-of-immigration-under-trump. 3. See infra Part I. 4. See Seung Min Kim, Trump Rebuffs Dreamers Deal Reached by Senators, POLITICO (Jan. 11, 2018, 8:00 PM), https://www.politico.com/story/2018/01/11/dreamers-deal- reached-but-trump-has-yet-to-sign-off-336501.

19 20 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI19

President’s threat to veto the agreement.5 Like the sanctuary and Dreamer movements I describe here, this quote captures the role of love in countering hate in immigration advocacy today. The goal of this piece is to invite a conversation about how positive emotions may be fueling the resistance against the Trump Administration’s anti-immigrant agenda.6 I first provide an overview of the Trump Administration’s anti-immigrant rhetoric and policies to date. Drawing on critiques of social movement theory for minimizing or ignoring the role that emotions can play in social and political mobilization, I then highlight the role that positive emotions play in the sanctuary and Dreamer movements. The lesson these movements hold is simple, but powerful: Responding to hate towards immigrants is happening around us not simply by fighting hate, but also by showing love.

I. THE TRUMP ADMINISTRATION AND HATE OF IMMIGRANTS

President Trump’s anti-immigrant sentiments were marked well before his election in November 2016. In the summer of 2015, then-candidate Donald J. Trump kicked off his campaign with a rally at which he called Mexicans rapists.7 Throughout his campaign, Trump expressed hateful rhetoric against immigrants, making generalized statements about Latinx immigrants as violent and prone to criminality.8 By doing so, he built an anti-immigrant agenda, likening immigrants to criminals, in an attempt to contrast them with the White, Christian, law-abiding U.S. citizen.9 Now as President, Trump has continued to engage consistently in hateful remarks against immigrants. The Trump Administration confirmed its staunch anti-immigrant view when one of the President’s first acts was to issue an executive order banning noncitizens from seven Muslim-majority countries from entering the United States.10 During his presidency, Trump has continued

5. Id. 6. I focus on the Trump Administration, as opposed to hatred in American society broadly, because of the visibility of hate in rhetoric used by Trump and the direct relevance of hateful rhetoric used by the Administration in immigration policy. 7. Michelle Ye Hee Lee, Donald Trump’s False Comments Connecting Mexican Immigrants and Crime, WASH. POST (July 8, 2015), https://www.washingtonpost.com/news/ fact-checker/wp/2015/07/08/donald-trumps-false-comments-connecting-mexican- immigrants-and-crime/?utm_term=.88493331c64d. 8. See, e.g., Carolina Moreno, 9 Outrageous Things Donald Trump Has Said About Latinos, HUFFINGTON POST: LATINO VOICES (Aug. 31, 2015, 3:49 PM), https://www.huffingtonpost.com/entry/9-outrageous-things-donald-trump-has-said-about- latinos_us_55e483a1e4b0c818f618904b. 9. Adam Goodman, The Core of Donald Trump’s Immigration Policy? Fear., WASH. POST (Aug. 24, 2017), https://www.washingtonpost.com/news/made-by- history/wp/2017/08/24/the-core-of-donald-trumps-immigration-policy- fear/?utm_term=.2499c0700aaf. 10. Exec. Order No. 13769, 82 Fed. Reg. 8,977 (Jan. 27, 2017); Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. TIMES (Jan. 2018] LOVE AS RESISTANCE 21 to express anti-Muslim sentiments and has gone as far as posting anti-Muslim videos on his Twitter account.11 The executive order restricting entry of noncitizens from Muslim-majority countries into the United States, or “travel ban,” is now on its third iteration.12 The same week that the President issued a travel ban from majority- Muslim countries, the Trump Administration also began what some have called a “crusade” against pro-immigrant policies at the state and local level.13 The President first issued a separate executive order aimed at limiting the provision of federal funds to localities that had implemented so-called “sanctuary” policies, defined as policies that limit the sharing of immigration status information by local officials to federal immigration authorities.14 Both President Trump and Attorney General Sessions have spoken out against such policies, Sessions claiming that they “undermine the moral authority” of law.15 In September 2017, Sessions announced that the federal government was terminating the Deferred Action for Childhood Arrivals (DACA) program, an Obama-era program that has provided young undocumented immigrants limited protection from deportation and the ability to work lawfully for renewable two- year periods.16 The Trump Administration’s anti-immigrant stance is also evident from its prosecutorial practices. Since 2016, the federal government has exponentially grown its practice of arresting individuals who show up to court hearings, even when those individuals are released on bond.17 In January 2018, the

27, 2017), https://www.nytimes.com/2017/01/27/us/politics/trump-syrian-refugees.html. 11. Brian Naylor, Trump Retweets Incendiary Anti-Muslim Videos from Controversial Group, NPR: POLITICS (Nov. 29, 2017, 10:07 AM), https://www.npr.org/2017/11/29/ 567159205/trump-retweets-incendiary-anti-muslim-videos-from-controversial-group. 12. Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017). For a procedural history of the three executive actions taken by President Trump to ban or limit noncitizens from specific countries from entering the country, see Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 250–52 (4th Cir. 2018), as amended (Feb. 28, 2018). At the time of this writing, the Supreme Court has heard oral arguments on whether the ban exceeded lawful authority or is otherwise unlawful. Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017), cert. granted, 86 U.S.L.W. 3365 (U.S. Jan. 19, 2018) (No. 17-965). 13. Editorial, Jeff Sessions Keeps Waging His Failing War Against Sanctuary Cities, WASH. POST (Nov. 21, 2017), https://www.washingtonpost.com/opinions/jeff-sessions- keeps-waging-his-failing-war-against-sanctuary-cities/2017/11/21/00add736-ce2d-11e7- 81bc-c55a220c8cbe_story.html?utm_term=.fb3f134622ec. 14. Exec. Order No. 13768, 82 Fed. Reg. 8,799 (Jan. 25, 2017). 15. Steven Dubois, Sessions: ‘Sanctuary Cities’ Undermine Law’s Moral Authority, CHI. TRIBUNE (Sept. 19, 2017, 9:18 PM), http://www.chicagotribune.com/news/nationworld/ politics/ct-sessions-sanctuary-cities-20170919-story.html. 16. Jonathan Swan, Sessions Announces End of DACA, AXIOS (Sept. 5, 2017), https://www.axios.com/sessions-announces-end-of-daca-1513305282-f63c6548-8b19-46a0- ad09-349078fbd989.html; Memorandum from Janet Napolitano, Sec’y of Dep’t of Homeland Sec., on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), https://www.dhs.gov/xlibrary/ assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf. 17. See IMMIGRANT DEFENSE PROJECT, ICE OUT OF THE COURTS (Nov. 17, 2017), https://www.immigrantdefenseproject.org/ice-courts. 22 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI19

Department of Justice began prosecuting activists providing assistance to undocumented immigrants in Arizona, alleging that offering water, food, beds, and clean clothes to immigrants violates federal criminal laws prohibiting the harboring of undocumented individuals.18 That same month, the Department of Justice threatened to subpoena over twenty jurisdictions, indicating it was investigating whether the jurisdictions were violating federal law and suggesting it might be contemplating the withdrawal of federal funding.19 Although the travel ban, sanctuary policies, and the termination of DACA have all been partly blocked by federal courts at the time of this writing, even on grounds that the actions are discriminatory,20 President Trump continues to make front-page news for his anti-immigrant stances. The President has made pejorative categorical comments about the foreign born, such as saying that Haitians “all have AIDS,” and that Nigerians could “go back to their huts.”21 During the course of negotiations over the “Dream” legislation, a piece of legislation aimed at providing a path to legalization for undocumented youth, Trump sparked an outcry when he purportedly claimed that Haiti and certain nations in Africa were “shithole” countries.22 Most recently, President Trump described immigrants involved in MS-13, a gang organization, as “animals,” and the White House soon after issued an official press statement also using the

18. Jacques Billeaud, Volunteer Arrested After Border Agents Seen Dumping Water, ASSOC. PRESS (Jan. 22, 2018), https://www.apnews.com/ ee090a053cb74c18be783053de370c9f/Volunteer-arrested-after-border-agents-seen- dumping-water; Ryan Devereaux, Nine Humanitarian Activists Face Federal Charges After Leaving Water for Migrants in the Arizona Desert, THE INTERCEPT (Jan. 23, 2018, 5:39 PM), https://theintercept.com/2018/01/23/no-more-deaths-arizona-border-littering-charges- immigration. 19. See Press Release, Dep’t of Justice, Justice Department Demands Documents and Threatens to Subpoena 23 Jurisdictions as Part of 8 U.S.C. 1373 Compliance Review, (Jan. 24, 2018), https://www.justice.gov/opa/pr/justice-department-demands-documents-and- threatens-subpoena-23-jurisdictions-part-8-usc-1373. 20. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 602 (4th Cir. 2017), vacated as moot, 138 S. Ct. 353 (2017) (affirming preliminary injunction against second travel ban on religious discrimination grounds); Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 269 (4th Cir. 2018), as amended (Feb. 28, 2018) (same as to third travel ban). 21. Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. TIMES (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html?_r=0. 22. Julie Hirschfeld Davis, Sheryl Gay Stolberg & Thomas Kaplan, Trump Alarms Lawmakers with Disparaging Words for Haiti and Africa, N.Y. TIMES (Jan. 11, 2018), https://www.nytimes.com/2018/01/11/us/politics/trump-shithole-countries.html. I say “purportedly” only because of President Trump’s steadfast denial of making the comment, even though the White House did not disclaim the statements were made. See Seung Min Kim & Matthew Nussbaum, White House Doesn’t Deny Trump’s ‘Shithole’ Immigration Remark, POLITICO (Jan. 11, 2018, 5:56 PM), https://www.politico.com/story/2018/01/11/ trump-shithole-immigration-remark-337070. Of course, President Trump’s denial may merely be a technical one, as reports also indicate that the statement he expressed may have been “shithouse” instead of “shithole.” Andrew Prokop, The “Shithouse Defense,” Explained: How Trump’s Allies Are Trying to Dig Him Out of His “Shithole”, VOX (Jan. 16, 2018, 2:10 PM), https://www.vox.com/2018/1/16/16897016/trump-shithole-shithouse- countries. 2018] LOVE AS RESISTANCE 23 term “animals” to describe this group of people.23 Although the anti-immigrant rhetoric by the Trump Administration is likely aimed at motivating an anti-immigrant base of voters,24 the President’s statements cannot be explained solely as a reflection of the American public. Public perception of immigration in the United States has, over the past ten to fifteen years, trended as pro-immigrant.25 Specific to the most recent election, according to an exit poll, half of Trump voters stated they think that immigrants who had entered the country unlawfully should be allowed to apply for legal status.26 Currently, a majority of Americans support a path to legalization for young undocumented immigrants.27

II. POSITIVE EMOTIONS AND SOCIAL MOVEMENTS

Social movement theory can provide a useful lens through which to view and analyze resilience in immigrant rights movements, as the field studies how social movements “materialize and operate, devoting attention both to the processes of mobilization and to methods of persuasion and survival.”28

23. Scott Neuman, During Roundtable, Trump Calls Some Unauthorized Immigrants ‘Animals’, NPR (May 17, 2018, 6:21 AM), https://www.npr.org/sections/thetwo- way/2018/05/17/611877563/during-roundtable-trump-calls-some-unauthorized-immigrants- animals. See also What You Need to Know About the Violent Animals of MS-13, THE WHITE HOUSE (May 21, 2018), https://www.whitehouse.gov/articles/need-know-violent-animals- ms-13/. 24. See Kurt Bardella, Trump’s ‘Shithole’ Comments Typify How the GOP Uses Immigration to Energize Its Base, NBC NEWS: THINK (Jan. 12, 2018, 2:40 AM), https://www.nbcnews.com/think/opinion/trump-s-shithole-comments-typify-how-gop-uses- immigration-energize-ncna836996 (“Immigration has become a vehicle for conservatives to promote xenophobic and even racist world views.”); Matt Fuller, Conservatives Alarmed by Trump’s ‘Comprehensive Immigration Reform’ Talk, HUFFINGTON POST: POLITICS (Jan. 9, 2018, 9:16 PM), https://www.huffingtonpost.com/entry/conservatives-comprehensive- immigration-reform-alarm_us_5a554dfce4b0b117f88060b4. 25. According to the Pew Research Center, since 1994, the country has seen a 36% decrease in the belief that immigrants are a burden on the country because they “take [] jobs, housing and health care.” Karlyn Bowman, Opinion, Reading the Polls: Welcome to America? What Americans Say About Immigration, FORBES (Feb. 14, 2017, 11:56 AM), https://www.forbes.com/sites/bowmanmarsico/2017/02/14/reading-the-polls-welcome-to- america-what-americans-say-about-immigration/#7b072e6c24e6. During this same time period, the country saw a 32% increase, from 31 to 63%, of individuals saying immigrants strengthen the country “because of their hard work and talents.” Id. In addition, a Quinnipiac poll of registered voters indicated that 59% of them believed that immigrants who had entered the country illegally should be permitted to stay in the United States and apply for citizenship. Id. 26. Id. 27. Harmeet Kamboj & Robert P. Jones, Majorities of Republicans and Democrats Support Basic Policies of DACA Program, PRRI (Aug. 29, 2017), https://www.prri.org /spotlight/trump-dream-act-immigration. 28. Douglas NeJaime, The Legal Mobilization Dilemma, 61 EMORY L.J. 663, 669 (2012). As NeJaime suggests, social movement theory could aid social legal analysis and legal scholarship, since social movement frameworks provide useful insights for social legal work. Id. at 670. 24 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI19

However, until recently, the role that emotions can play in the formation, sustenance, and success of social movements was understudied.29 Social movement theorists Jeff Goodwin, James M. Jasper, and Francesca Polletta call for greater attention to the role of emotions in social movements.30 By pitting emotions as irreconcilable with rational action, these theorists argue that social movement scholars have missed the crucial role emotions can play in effecting positive change.31 According to Goodwin, Jasper, and Polletta, the past few decades indicate a positive trend of theorists analyzing the emotional underpinnings of social movements, engaging with how emotions can fuel social and political activity.32 A few scholars have pointed out how anger, for example, can serve as a politically useful emotion for subordinated groups, helping to form identity and instilling motivation within them.33 In this way, emotions such as anger and frustration are now recognized as action-inducing.34 Although much of the attention has been focused on anger and frustration, what I call “negative emotions,” other emotions, such as love and compassion, which I refer to as

29. Jeff Goodwin, James M. Jasper, and Francesca Polletta chronicle how social movement theorists have traditionally failed to address adequately the role of emotion in social movements despite ample sociological inquiry into how emotions affect social life. Jeff Goodwin, James M. Jasper & Francesca Polletta, The Return of the Repressed: The Fall and Rise of Emotions in Social Movement Theory, 5 MOBILIZATION: AN INT’L Q. 65, 65-83 (2000). As one of these authors has claimed, social movement theory would benefit from “a sociology that recognizes the uniquity of emotions, moods, and affect in social life and which treats emotions as potential causal mechanisms . . . .” JEFF GOODWIN & STEVEN PFAFF, Emotion Work in High-Risk Social Movements: Managing Fear in the U.S. and East German Civil Rights Movements, in PASSIONATE POLITICS: EMOTIONS & SOCIAL MOVEMENTS 282, 283 (Jeff Goodwin, James A. Jasper & Francesca Polletta eds. 2001). 30. Goodwin, Jasper & Polletta, supra note 29, at 77-78. These scholars argue that the same tools used to understand cognitive beliefs and moral visions can be applied to the study of emotions in social movements. See JEFF GOODWIN, JAMES M. JASPER & FRANCESCA POLLETTA, Emotional Dimensions of Social Movements, in THE BLACKWELL COMPANION TO SOCIAL MOVEMENTS 413, 414 (David A. Snow, Sarah A. Soule & Hanspeter Kriesi eds., 2004). 31. Goodwin, Jasper & Polletta, supra note 29, at 66. As Goodwin, Jasper, and Polletta explain, throughout numerous decades, “[p]resenting activists as rational seemed to prevent their being emotional.” Id. at 70. 32. Id at 66. For an analysis of how emotions may influence how individuals process and assert legal rights, see Kathryn Abrams, Emotions in the Mobilization of Rights, 46 HAR. C.R.-C.L. L. REV. 551 (2011). Elisabeth Jean Wood claims that emotional benefits, such as the pleasure derived from exercising agency, can contribute to social mobilization. ELISABETH JEAN WOOD, The Emotional Benefits of Insurgency in El Salvador, in THE SOCIAL MOVEMENTS READER: CASES AND CONCEPTS 143, 149-50 (Jeff Goodwin & James M. Jasper eds., 2015). 33. See, e.g., Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436, 1505 (2005); Janine Young Kim, Racial Emotions and the Feeling of Equality, 87 U. COLO. L. REV. 437, 487-88 (2016). 34. As Tomiko Brown-Nagin writes, “[t]here is an express role for emotion in social movements because breaking mental chains of oppression, creating new forms of cultural expression, and awakening participants from quiescence are fundamental to the initiation, growth, and development of a movement.” Brown-Nagin, supra note 33, at 1504–05. 2018] LOVE AS RESISTANCE 25

“positive emotions,” are now gaining recognition for their mobilizing capabilities.35 This Essay argues that, at a time where most media attention is focused on hate in society, we should not discount the role of positive emotions in countering hate in immigration.36 Two social movements at odds with the Trump Administration’s immigration policies can be illustrative of how positive emotions serve to sustain social and political activity. The sanctuary movement has mobilized as a community-based cluster of religious leaders and activists providing shelter and other assistance to individuals whom federal immigration authorities are actively seeking to remove from the United States. The Dreamer movement engages in political activism in favor of legalizing the immigration status of young undocumented immigrants, as well as other pro- immigrant policies. Together, these two movements highlight the importance of positive emotions in resisting anti-immigrant sentiment and policies and provide lessons about the power of positive emotions for future social mobilization.

III. THE SANCTUARY MOVEMENT

Named after a similar movement from the 1980s, the sanctuary movement today provides assistance to individuals fearing imminent removal from the United States in various forms, including shelter, food, and other basic needs.37 The movement today, like that of the 1980s, is led through faith-based activism and guided by religious teachings of loving the stranger.38 The revival of the sanctuary movement has followed the Trump Administration’s move to aggressive removal priorities and practices.39 Since the election of Donald

35. A few scholars have noted how social mobilization can be rooted in love. See Amy Kapczynski, Why Civil Disobedience, and Why Now?, LAW & POL. ECON. BLOG (Dec. 18, 2017), https://lpeblog.org/2017/12/18/why-civil-disobedience-and-why-now/ (“From the outside, confrontational protests often look angry. On the inside, they are pervaded with love.”). See also Kim, supra note 33, at 487. 36. This is not to suggest that positive emotions function to the exclusion of other motivators or factors or to discount the strategic decision-making involved in immigrant rights social movements. Indeed, legal scholars have argued that immigrant rights movements have or should choose certain strategies using a lens of social movement theory. See, e.g., Jennifer J. Lee, Outsiders Looking in: Advancing the Immigrant Worker Movement Through Strategic Mainstreaming, 2014 UTAH L. REV. 1063, 1068 (2014); Vasanthi Venkatesh, Mobilizing Under “Illegality”: The Arizona Immigrant Rights Movement’s Engagement with the Law, 19 HARV. LATINO L. REV. 165, 188 (2016). 37. Dwyer Gunn, The Sanctuary Movement: How Religious Groups Are Sheltering the Undocumented, GUARDIAN (Feb. 8, 2017, 7:00 AM), https://www.theguardian.com/us- news/2017/feb/08/sanctuary-movement-undocumented-immigrants-america-trump-obama. 38. Id. (“The modern-day sanctuary movement is rooted in deeply held religious values of welcoming the outsider.”) 39. During the Obama Administration, the Department of Homeland Security (DHS) had operative a set of priorities for removal enforcement, prioritizing the removal of individuals who DHS believed posed “threats to national security, public safety, and border security.” Memorandum from Jeh Johnson, Sec’y of Dep’t of Homeland Sec., on Policies for 26 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI19

Trump, the number of religious establishments that officially form part of the sanctuary movement has doubled.40 The sanctuary movement got its start when hundreds of religious establishments opened their doors to undocumented immigrants fearing removal from the United States in the 1980s.41 Civil wars in Central America led to a rush of refugees entering the country through the southern border, and religious leaders’ states near the U.S.-Mexico border began providing refugees basic needs assistance.42 The federal government instituted removal practices that included mass detention and deportations.43 Members of the then-sanctuary movement intentionally provided housing in churches, synagogues, and mosques to those seeking to avoid deportation by immigration officials.44 Soon thereafter, a number of localities declared themselves “cities of refuge,” refusing to turn over undocumented residents to federal authorities or check immigration status.45 The movement strategically used the media to garner public support and call attention to the federal government’s aggressive removal practices.46 After media coverage illuminated the sanctuary movement, the Department of Justice, under the Reagan Administration, began criminally prosecuting religious leaders under the federal anti-harboring law.47 The prosecutions were upheld against constitutional and other challenges,48 and the government the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretio n.pdf. Shortly after the turn in administration, then-Secretary of the DHS, John Kelly, issued a new memorandum rescinding the Obama-era removal priorities and implementing a new policy that DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” Memorandum from John Kelly, Sec’y of Dep’t of Homeland Sec., on Enforcement of the Immigration Laws to Serve the National Interest, (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the- Immigration-Laws-to-Serve-the-National-Interest.pdf. 40. Although the new sanctuary movement formed during the Bush Administration, the number of religious establishments has doubled since Donald J. Trump’s election. Michael Arria, The Sanctuary Movement Was Reignited Under Obama and It’s Growing Under Trump, TRUTHOUT (Apr. 3, 2017), http://www.truth-out.org/news/item/40067-the-sanctuary- movement-was-reignited-under-obama-and-it-s-growing-under-trump; Gunn, supra note 37. 41. Arria, supra note 40. 42. Joseph Darrow, Note, Criminalizing Love of Thy Immigrant Neighbor? The Conflict Between Religious Exercise and Alabama’s Immigration Laws, 26 GEO. IMMIGR. L.J. 161, 164 (2011). 43. Barbara Bezdek, Religious Outlaws: Narratives of Legality and the Politics of Citizen Interpretation, 62 TENN. L. REV. 899, 921 (1995). 44. Judith McDaniel, The Sanctuary Movement, Then and Now, RELIGION & POLS. (Feb. 1, 2017), http://religionandpolitics.org/2017/02/21/the-sanctuary-movement-then-and- now/. 45. Darrow, supra note 42, at 166; McDaniel, supra note 44. 46. Kristina M. Campbell, Humanitarian Aid Is Never a Crime? The Politics of Immigration Enforcement and the Provision of Sanctuary, 63 SYRACUSE L. REV. 71, 102 (2012). 47. Darrow, supra note 42, at 167. 48. Id. at 167–68. 2018] LOVE AS RESISTANCE 27 claimed success over the movement. Some variations on the 1980s sanctuary movement have persisted, including providing shelter to those who protested war.49 During the Bush Administration, a new sanctuary movement was formed to provide shelter to individuals facing removal by immigration authorities, and the movement continued into the Obama Administration.50 Today, it stands as a coalition of over 800 local religious establishments and communities,51 and reports of individuals taking sanctuary in congregations around the country is widely reported.52 And these churches are found not just in Democrat-leaning states, but across the country in states such as North Carolina, Texas, Colorado, and Ohio.53 The movement does not simply bring temporary reprieve; it has additionally garnered successes in resisting removal efforts by the federal government. For example, in October 2017, one organization collecting data indicated that out of thirty-four individuals who had sought sanctuary during the Trump Administration, seven were able to avoid removal orders.54 Positive emotions are central to the identity of the sanctuary movement. In providing guidance to carry out the mission of the movement, members of the sanctuary movement cite religious teachings such as “love[] the stranger[], providing them food and clothing,” and “stand with the oppressed.”55 These positive emotions are, as one social movement scholar describes, shared emotions that help create and fuel a social movement.56 It builds trust to

49. Gregory A. Loken & Lisa R. Babino, Harboring, Sanctuary and the Crime of Charity Under Federal Immigration Law, 28 HARV. C.R.-C.L. L. REV. 119, 122 (1993). 50. Although the new sanctuary movement has garnered media attention as a response to the Trump Administration’s removal enforcement practices, a network of churches formed a “New Sanctuary Movement” in 2006, with individuals taking refuge at religious establishments during the Bush and Obama Administrations. See Emily Breslin, Note, The Road to Liability Is Paved with Humanitarian Intentions: Criminal Liability for Housing Undocumented People Under 8 U.S.C. 1324(a)(1)(A)(III), 11 RUTGERS J.L. & RELIGION 214, 224 (2009) (describing the newly-formed “New Sanctuary Movement”); Arria, supra note 40 (detailing the taking of sanctuary during the Obama Administration); Campbell, supra note 46, at 103 (describing the New Sanctuary Movement formation as a response to an anti- immigrant bill introduced in Congress in 2005). 51. Gunn, supra note 37. 52. For example, in Connecticut, multiple churches served as temporary homes for individuals who ICE had informed it would remove from the United States. See Christopher Peak, Second Immigrant Takes Sanctuary in a New Haven Church, CT MIRROR (Aug. 8, 2017), https://ctmirror.org/2017/08/08/2nd-immigrant-takes-sanctuary-in-a-new-haven- church/. 53. Yonat Shimron, Resisting Trump, Churches Give Sanctuary to Immigrants Facing Deportation, USA TODAY (Nov. 29, 2017, 10:58 AM), https://www.usatoday.com/story/ news/nation/2017/11/29/resisting-trump-churches-give-sanctuary-immigrants-facing- deportation/904889001/. 54. Laurie Goodstein, Immigrant Shielded from Deportation by Philadelphia Church Walks Free, N.Y. TIMES (Oct. 11, 2017), https://www.nytimes.com/2017/10/11/us/sanctuary- church-immigration-philadelphia.html. 55. Arria, supra note 40. 56. See James M. Jasper, The Emotions of Protest: Affective and Reactive Emotions in and Around Social Movements, 13 Soc. F. 397, 412 (1998). 28 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI19 understand that another member of a social movement understands an emotion because she shares it, helping form bonds between members.57 The sanctuary movement illustrates the potential power of positive emotions in social movements. Members of the sanctuary movement today face potential criminal prosecution,58 similar to the prosecution of religious leaders involved in the sanctuary movement in the 1980s. Indeed, the current Administration has shown no signs of playing a timid prosecutorial role against those that resist its aggressive removal agenda.59 Despite awareness of potential future prosecution, the sanctuary movement is thriving and has nevertheless grown significantly during the current Administration.60 The commitment to love the stranger is driving sanctuary movement members to engage in social activity that exposes them to potential prosecution. Love and compassion for undocumented immigrants have provided the sanctuary movement members with such strong convictions to outweigh the risks associated with social activity in the movement.61 Love, in this movement, is the resistance.

IV. THE DREAMER MOVEMENT

The social movement comprised of Dreamers—undocumented young immigrants seeking a path to legalizing their immigration status—is at the forefront of immigration policy today. Despite the prevalence of anti-immigrant rhetoric espoused by the Administration, or the base of conservative voters it supposedly caters to, the Dreamer movement is not only alive, but thriving. A look at how it was built and the characteristics it holds reveal a movement that is compassionate and loving, emotions which ensure commitment among the movement’s members and fuel its success.

57. Id. at 402. 58. Jacob J. Hutt, Under This Law, Encouraging Undocumented Immigrants to Seek Shelter Could Be a Crime, ACLU (Oct. 19, 2017, 1:45 PM), https://www.aclu.org/blog/free- speech/under-law-encouraging-undocumented-immigrants-seek-shelter-could-be-crime. 59. In an oral argument, a Department of Justice attorney recently suggested that providing free legal services to an undocumented immigrant could plausibly violate the federal harboring law used in the 1980s to prosecute sanctuary movement leaders. See Oral Argument at 1:00:10-1:00:49, United States v. Evelyn Sineneng-Smith, No. 15-10614 (9th Cir. 2018), https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000013099. See also Brief for Plaintiff-Appellee at 44-46, United States v. Evelyn Sineneng-Smith, No. 15- 10614 (9th Cir. 2018). 60. The awareness of potential prosecution has led to some congregations being cautious about how they express support for immigrants, and informing others that actions such as providing shelter could expose them to criminal prosecution. Kimberly Winston, Sanctuary for the Undocumented Comes with Legal Consequences, RELIGION NEWS SERV. (Mar. 17, 2017), https://religionnews.com/2017/03/17/sanctuary-for-the-undocumented- comes-with-legal-consequences/. 61. Jeff Goodwin and Steven Pfaff have described how emotions can work to sustain commitment to a social movement, noting the impact that moral support and encouragement have in forming intimate ties in a social movement facing repression. Goodwin & Pfaff, supra note 29, at 287. 2018] LOVE AS RESISTANCE 29

The Dreamer movement began in the early 2000s, and at its roots stems from a piece of legislation called the Development, Relief, and Education for Alien Minors (“DREAM”) Act.62 The first DREAM legislation was introduced in 2000, has been introduced repeatedly since then, but at the time of this writing has not yet been enacted.63 Over time, young immigrants formed local organizations to advocate for legalization and other pro-immigrant policies.64 By 2010, local DREAM groups formed a national coalition called United We Dream (UWD).65 Over a decade since the first DREAM Act, “youth organizing for the DREAM Act [went] from a subsidiary operation to a full-fledged movement.”66 By 2011, Dreamers organized not just lobbying efforts and rallies, but also cross-country walks, such as a 1,500-mile trek from Miami to Washington D.C., and propelled Dreamers’ stories into the national media by “coming out” as undocumented residents.67 By this time, the Dreamer movement had also organized hunger strikes and study sit-ins in Congress and had ventured into civil disobedience.68 In what is known as the first act of civil disobedience by Dreamers, four were arrested in Senator McCain’s office in 2010 as part of an effort to obtain his support for the DREAM Act in that legislative session.69 Three of the four arrested were given deportation orders.70 Today, acts of disobedience by Dreamers are far from unheard of, but instead are constantly in the news. The Trump Administration itself has propelled to the forefront of Congressional politics their effort to obtain permanent legal status. After the Administration announced it was terminating the DACA program in September 2017,71 President Trump stated on multiple occasions on Twitter that it would now be up to Congress to authorize the

62. Elizabeth Keyes, Defining American: The Dream Act, Immigration Reform and Citizenship, 14 NEV. L.J. 101, 103 (2013). 63. After multiple bills failed to pass in the Senate, in March 2018 legislators attempted to negotiate a temporary protection bill for young immigrants who received DACA. Those negotiations stalled after legislators failed to reach an agreement to attach to a spending bill. Aubree Eliza Weaver, Despite No DACA Fix, Mulvaney Praises Immigration Package in House Spending Bill, POLITICO (Mar. 22, 2018, 1:39 PM), https://www.politico.com/story/2018/03/22/immigration-house-spending-bill-mick- mulvaney-479728. But much debate and confusion remains over whether the Trump Administration will support a path to citizenship for Dreamers, as he has both expressed support of such a bill, see id., and rejected bills that contain provisions he has claimed to support. Kim, supra note 4. 64. See Daniel Altschuler, The Dreamers’ Movement Comes of Age, DISSENT MAG. (May 16, 2011), http://www.dissentmagazine.org/online_articles/the-dreamers-movement- comes-of-age. 65. Id. 66. Id. 67. Id. 68. Id. 69. Id. 70. Id. 71. Memorandum from Elaine C. Duke, Acting Sec’y of Dep’t of Homeland Sec., on Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. 30 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI19 protections previously provided by the DACA program.72 The Dreamer movement then called on Democrats to demand that a legalization path be attached to any bill named a “must-pass” bill, such as a spending bill necessary for the government to continue with daily functions.73 Those efforts failed in December when Congress approved a continuing resolution to fund the government temporarily,74 but the demand for legalization in exchange for keeping the government funded again gained traction in January of 2018. On January 19, 2018, the federal government failed to pass a spending bill, halting all but necessary government functions, due to the impasse on a fix to the immigration status of Dreamers.75 But the shutdown lasted only a few days,76 and at the time of this writing, no DREAM-like bill has passed.77 The Dreamer movement is nothing short of remarkable: a group of individuals who lack political power as a result of being undocumented, yet a group that is still able to exert strong force in politics.78 The movement also holds the markers of incredible organization. Dreamers study civil rights movements, discuss them, and share strategies for achieving their political goals.79 But the Dreamer movement is also marked by acts of compassion and love. At a national convening, these young activists shared not only political strategies, but also personal stories of learning that they were undocumented and the obstacles their undocumented status places in their lives.80 One speaker received a 250-person group hug.81 Marches organized by Dreamers have been

72. See Donald J. Trump (@realDonaldTrump), TWITTER (Sept. 5, 2017, 5:38 PM), https://twitter.com/realDonaldTrump/status/905228667336499200 (“Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!”). 73. Suzanne Gamboa, Dreamers, Immigrant Families Ramp Up Pressure for Congress to Pass DREAM Act, NBC NEWS (Dec. 19, 2017, 3:09 PM), https://www.nbcnews.com/news/latino/dreamers-immigrant-families-ramp-pressure- congress-pass-dream-act-n831316; Jim Newell, Democrats Fold on a DACA Fix, SLATE (Dec. 21, 2017, 8:32 PM), http://www.slate.com/articles/news_and_politics/politics/ 2017/12/why_democrats_folded_on_a_daca_fix.html. 74. Newell, supra note 73. 75. Lauren Gambino, Failed Deal over Dreamers at the Heart of US Government Shutdown, GUARDIAN (Jan. 20, 2018, 1:05 PM), https://www.theguardian.com/us- news/2018/jan/20/government-shutdown-dreamers-immigration-democrats-trump. 76. Editorial, Stopgap Bill to End Government Shutdown Passes Congress, N.Y. TIMES (Jan. 22, 2018), https://www.nytimes.com/2018/01/22/us/politics/government- shutdown.html. 77. Jen Herrick, PFAW Calls for a DREAM Act Vote NOW, PEOPLE FOR THE AM. WAY (Apr. 18, 2018), http://www.pfaw.org/blog-posts/pfaw-calls-for-a-dream-act-vote-now/. 78. See generally Altschuler, supra note 64 (describing how, by 2010, “the[] movement had arrived” as it grew from young students who “didn’t have agency” to “youth organizations [capable of] establish[ing] a broad repertoire of contentious action to push the envelope and transform DREAM into a big-ticket item on the congressional agenda”). 79. Id. 80. Id. 81. Id. 2018] LOVE AS RESISTANCE 31 marked by singing, dancing, and crying.82 The Religious Action Center of Reform Judaism, one of the groups involved in recent activism in support of the Dreamer movement, cited love as the basis for this support, noting that “[i]n the Torah, we are called 36 different ways to love the stranger, the orphan, and the widow.”83 The Dreamer movement, at its core, is based on a hopeful message.84 The endurance of the Dreamer movement, as well as its visibility despite social vulnerability, reveal the immense power of the positive emotions on which the movement is based. The movement has only grown, both in numbers and in political power, despite DREAM legislation remaining on the table. Love, through direct expressions such as in the quote introducing this Essay, or through compassionate actions such as a 250-person group hug, has helped the Dreamer movement maintain endurance through many legislative losses. In addition, Dreamers do not simply advocate by calling representatives and holding peaceful marches; they also engage in numerous visible acts of civil disobedience,85 despite potentially exposing themselves to deportation. Given the vulnerable position that Dreamers are in as a result of being undocumented, one might reasonably expect that Trump’s anti-immigrant rhetoric, coupled with the Administration’s policies, could keep undocumented youth at home in the shadows, their political power diminished. The opposite is true. The hope of becoming citizens is fueling Dreamers’ civil disobedience when the costs are extremely high. In taking such actions, Dreamers are illustrating for society the movement’s drive, commitment, and energy. Like the sanctuary movement, this is where the power of love as resistance is revealed.

CONCLUSION

The drive and resilience that love can promote in countering hate in the era of the Trump Administration is noteworthy. The rhetoric used by the President and his Administration suggesting immigrants are criminals, ill, or worth less than American citizens can easily shame and depress immigrants, reducing the

82. Id. 83. Jonah Dov Pesner, Reform Jewish Leader Engages in Civil Disobedience in Support of Dreamers, RELIGIOUS ACTION CTR. REFORM JUDAISM (Jan. 17, 2018), https://rac.org/reform-jewish-leader-engages-civil-disobedience-support-dreamers. 84. Indeed, coining the term “Dreamer” is a nod to the American dream, a fundamentally hopeful narrative of being able to “achieve greatness through hope and tenacity.” Keyes, supra note 62, at 109. 85. See, e.g., Sharon Bernstein, ‘Dreamers’ Disappointed That Congress Deferred DACA Deal, REUTERS: POLITICS (Jan. 22, 2018, 6:01 PM), https://www.reuters.com/article/ us-usa-shutdown-dreamers/dreamers-disappointed-that-congress-deferred-daca-deal- idUSKBN1FC05Q; Elise Foley, More Than 180 Protesters Arrested at Rally for Dreamers as Congress Drags Its Feet, HUFFINGTON POST: POLITICS (Dec. 6, 2017, 7:59 PM), https://www.huffingtonpost.com/entry/dreamers-protest-arrests-luis- gutierrez_us_5a287a60e4b0b185e5393969. 32 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI19 likelihood of social involvement.86 The Trump Administration’s anti- immigration policies plainly strive to instill fear in immigrants.87 Yet the sanctuary movement is alive and active despite the threat of criminal prosecutions. Similarly, young immigrants in the Dreamer movement are invariably in the news and in congressional office, making political demands of Congress and shaping the discourse of immigration policy. And members of both, at their core, are hopeful, compassionate, and loving. At a time when anti- immigrant rhetoric is plentiful, these two movements teach us that love should be plentiful as well.

86. See Kim, supra note 33, at 487. 87. Goodman, supra note 9.

The Dreamer Divide: Aspiring for a More Inclusive Immigrants’ Rights Movement

Adrienne Pon†

INTRODUCTION

On June 16, 2015, real estate mogul and reality television star Donald Trump took the stage to announce he was officially running for President of the United States. Looking out over the crowd at Trump Tower in New York City, the then- candidate delivered one of the most memorable quotes from his campaign: When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.1 This xenophobic and racist rhetoric towards immigrants became a hallmark of the Trump campaign. Trump, for instance, implied that federal judge Gonzalo Curiel, who presided over a class action against the for-profit Trump University, was biased against him because “[h]e’s a Mexican.”2 And as President, Trump has executed a string of anti-immigrant actions. In less than one year into his term, Trump issued a ban on travelers from mostly Muslim-majority countries,3

† J.D. Candidate, Stanford Law School, 2018. My deepest thanks to Jayashri Srikantiah, Shirin Sinnar, Wei Lee, and Katrina Eiland for their insightful advice and comments on earlier drafts. I would also like to thank Mark Harrold and Jamie Walsh for their helpful feedback, as well as the dedicated editors of the Stanford Journal of Civil Rights & Civil Liberties (espe- cially Caroline Cohn, Olamide Abiose, and Kriti Sharma). During the editing of this article, Congress failed to pass a DACA-replacement bill before the March 2018 deadline. Efforts for legislative reform and litigation to protect former DACA-recipients and other undocumented immigrants from deportation are ongoing. 1. Here’s Donald Trump’s Presidential Announcement Speech, TIME (June 16, 2015), http://time.com/3923128/donald-trump-announcement-speech [hereinafter Trump Announce- ment]. 2. Z. Byron Wolf, Read This: How Trump Defended Criticism of Judge for Being ‘Mex- ican’, CNN, http://www.cnn.com/2017/04/20/politics/donald-trump-gonzalo-curiel-jake-tap- per-transcript/index.html (last updated Apr. 20, 2017, 10:21 PM). 3. See Presidential Proclamation Enhancing Vetting Capabilities and Processes for De- tecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 24, 2017), https://www.whitehouse.gov/

33 34 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI33 proposed extreme vetting measures for certain visa applicants,4 slashed the ref- ugee cap to the lowest it has been in decades,5 reinforced his commitment to build a wall along the southern border,6 and pardoned Sheriff Joe Arpaio—who was held in criminal contempt for violating a court order to stop his office’s ag- gressive racial profiling and detention of Hispanic residents.7 The Trump Ad- ministration went one step further in September 2017 by rescinding the Deferred Action for Childhood Arrivals (DACA) program, which had protected approxi- mately 800,000 young undocumented immigrants from deportation.8 To be sure, anti-immigrant rhetoric has existed in America since our found- ing,9 and anti-immigrant efforts today are not isolated to the federal executive branch.10 But the marked increase in anti-immigrant hostility across the nation over the last year—seized upon and intensified by the Trump Administration— has increased the urgency for advocates to fight on behalf of these vulnerable communities. This Essay argues that, as advocates work tirelessly to counter the current surge in hate towards immigrants, it will be increasingly important to employ inclusive strategies that—whenever possible—avoid advancing the interests of some immigrants at the expense of other immigrants. In particular, at the time of writing this article, Congress promises to pass an immigration bill to create a replacement for DACA, and there is a risk that the legislative result will protect some subset of those whom the American public have come to call “Dreamers” but lead to greater enforcement against immigrants overall. Aiming for a more

the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-at- tempted-entry. 4. See BRENNAN CTR. FOR JUSTICE, EXTREME VETTING & THE MUSLIM BAN 1-4, 11-20 (2017), https://www.brennancenter.org/publication/extreme-vetting-and-muslim-ban. 5. See Julie Hirschfeld Davis & Miriam Jordan, Trump Plans 45,000 Limit on Refugees Admitted to U.S., N.Y. TIMES (Sept. 26 2017), https://www.nytimes.com/2017/09/26/us/poli- tics/trump-plans-45000-limit-on-refugees-admitted-to-us.html?_r=0. 6. See Elliot Spagat, Trump’s Border Wall Models Take Shape in San Diego, ASSOCIATED PRESS (Oct. 20, 2017), https://www.apnews.com/3d3e5ad46b7b477ebe0bca- add6ffd591. 7. See Devlin Barrett & Abby Phillip, Trump Pardons Former Arizona Sheriff Joe Ar- paio, WASH. POST (Aug. 25, 2017), http://wapo.st/2ge7wsM?tid=ss_mail&utm_term=.9994ba45e849. 8. Memorandum from Elaine Duke, Acting Sec’y, DHS, to James W. McCament, Act- ing Dir., USCIS, et al. (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum- rescission-daca. 9. See SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY, Immigration and U.S. History—The Evolution of the Open Society, in U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST 161, 167-76 (1981) (discussing efforts in early American history to re- strict immigration). 10. See, e.g., Julián Aguilar, Attorneys Spar Over Texas Immigration Law in Federal Court, TEXAS TRIBUNE (June 26, 2017, 7:00 PM), https://www.texastrib- une.org/2017/06/26/attorneys-spar-over-texas-immigration-law/ (Texas’s anti-sanctuary act, SB 4); Max Morgan, Feds Block Public List Of Immigrants In Georgia With Prior Felonies, GA. PUB. BROADCASTING (June 29, 2017), http://gpbnews.org/post/feds-block-public-list-im- migrants-georgia-prior-felonies (Protect Georgia Act). 2018] THE DREAMER DIVIDE 35 inclusive immigrants’ rights movement might lead to reforms that benefit a broader group of immigrants and better address our society’s long-standing sys- temic discrimination against immigrant communities. Part I provides examples of social movements that chose strategies that harmed the interests of other disadvantaged groups. Part II discusses one divide that has emerged in the current immigrants’ rights movement—namely, the growing debate over whether to use the term “Dreamer.” Finally, Part III pro- poses some ways forward for advocates to try to advance the rights of all immi- grants.

I. LESSONS FROM HISTORY

Historians and legal scholars have documented numerous instances in which a social movement’s campaign to advance the rights of some disadvantaged group ended up using strategies that actively harmed or left behind the interests of other disadvantaged groups. Perhaps the most prominent example is the women’s suffrage movement. There is substantial literature on strategies used by white women suffragists that divided the movement along racial lines. Research by historian Rosalyn Terborg- Penn, for example, demonstrates “white women for the most part campaign for their own enfranchisement,” not universal suffrage.11 These white women suf- fragists often “either avoided the race question or openly opposed including Black women in the suffrage ranks.”12 This choice to not fully include black women in the women’s suffrage movement was strategic, if not a product of ra- cial biases on the part of many white suffragists themselves. Many national suf- frage leaders worried that full inclusion of black women in the movement “would create racial tensions among southern members and jeopardize the passage of the Nineteenth Amendment.”13 Terborg-Penn argues that these strategies had a long- term negative impact on the right of black women to vote, finding that southern states implemented measures to disfranchise black women less than a decade after the Nineteenth Amendment.14 Closely related to the racial divide, mainstream suffragists divided the move- ment by education level and even advanced anti-immigrant arguments. Historian Lisa Tetrault explains that a central message of suffragists was that women’s “intelligent votes and moral influence” were necessary to counter the “incoming tide of ignorant voters from Southern plantations and from the nations of the Old World.”15 Tetrault also argues that prominent suffragists like Elizabeth Cady Stanton and Susan B. Anthony advanced a limited view of suffrage that included

11. ROSALYN TERBORG-PENN, AFRICAN AMERICAN WOMEN IN THE STRUGGLE FOR THE VOTE, 1850-1920 9 (1998). 12. Id. at 11. 13. Id. 14. Id. 15. LISA TETRAULT, THE MYTH OF SENECA FALLS: MEMORY AND THE WOMEN’S SUFFRAGE MOVEMENT, 1848-1898 131 (2014). 36 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI33 literary tests—that is, they tolerated “just” disenfranchisement through means testing, compared to “unjust” disenfranchisement based on categories such as gender.16 In addition, legal scholar Rabia Belt explains that the women’s suffrage movement harmed the rights of the mentally disabled. Belt argues that suffragists employed rhetoric that “deployed and reified the category of compulsory ablemindedness.”17 Women suffragists argued, for instance, that they should not “forever . . . be regarded as children or as lower than persons, along with crimi- nals, idiots, and the insane.”18 Such discrimination continues today as “nearly forty states disenfranchise people based on their mental status.”19 This dynamic has played out across many social movements. A more recent example is the gay rights movement’s struggle over whether and how to include transgender issues. Advocate Shannon Minter presented one influential account of this phenomenon, explaining that there was an active debate over the question: “Should the gay rights movement expand its borders to include transgender peo- ple?”20 Minter argues that the mainstream gay rights movement excluded transgender people over time because the model of gay identity pushed by activ- ists “shift[ed] from an older model of homosexuality as gender inversion to the dominant contemporary model of sexual object choice.”21 In other words, the strategic focus in the gay rights movement on sexual orientation increased the isolation of gender-variant people, even though “a sizable percentage of transgender people also identify as lesbian, gay, or bisexual.”22 Some of the pres- sures behind this shift, according to Minter, were leading activists who wanted to present a gender-normalizing model of gay identity—for instance, the image of someone who is lesbian, gay, or bisexual but embraces “straight middle-class conventions of decorum in their dress and style.23 This increased marginalization of gender-variant people led to the emergence of a “distinct constituency, or . . . what is now known as the transgender movement.”24 Minter observes that the “established gay groups have not responded to the sudden emergence of a ‘transgender’ constituency with immediate understanding or acceptance.”25 This resistance is not necessarily out of animus, according to

16. Id. at 132. 17. Rabia Belt, Mental Disability and the Right to Vote 4 (2015) (Ph.D. dissertation) (on file with University of Michigan). 18. Id. at 31. 19. Id. at 1. 20. Shannon Minter, Do Transsexuals Dream of Gay Rights? Getting Real About Transgender Inclusion in the Gay Rights Movement, 17 N.Y.L. SCH. J. HUM. RTS. 589, 589 (2000). 21. Id. at 608. 22. Id. at 591. 23. Id. at 603. 24. Id. at 607. 25. Id. at 612. 2018] THE DREAMER DIVIDE 37

Minter, but instead “reflects genuine confusion and concern about how to recon- cile transgender issues with the modern, non-transgender model of gay identity that has dominated legal and political advocacy.”26 Some gay advocates have gone so far as to argue that “transgender people must wait their turn and cannot expect to ‘piggyback’ or ‘ride on the coattails’ of the gay movement”—though Minter points out that “these arguments fail to acknowledge that transgender people have been present in gay liberation and gay rights struggles from the be- ginning.”27 Perhaps these strategies by the women’s suffrage and gay rights move- ments—choices that excluded certain marginalized groups—were important to achieve pivotal victories. And to be sure, this dynamic seems inherent in any social movement, as advocates are often pressured to assert some limiting prin- ciple to not seem unreasonable and to win over the general public and policy- makers. But advocates should nonetheless learn from this history to at least think critically about whether certain strategies will ultimately pave a path towards greater equality for all or possibly leave some disadvantaged group even more disadvantaged.

II. CURRENT IMMIGRATION REFORM EFFORTS & THE DREAMER DEBATE

These lessons from history are important to keep in mind today as the immi- grants’ rights movement has a window to possibly pass momentous immigration reform, and, at the time of writing this article, Congress is debating whether to protect hundreds of thousands of young undocumented immigrants from depor- tation and possibly provide a path to citizenship. However, an increasing number of community members are speaking out against using one of the arguably most effective strategies to gain sympathy for immigrants—the “Dreamer” narrative. President Trump recently reignited the potential for immigration reform when he rescinded the Deferred Action for Childhood Arrivals (DACA) pro- gram.28 The Obama Administration created the DACA program in June 2012 after Congress failed to pass the then-most-recent version of the Development, Relief, and Education for Alien Minors (DREAM) Act and many advocates and activists kept up pressure for reform.29 The DACA program, an exercise of pros-

26. Id. 27. Id. at 599-600; see also Taylor Flynn, Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 101 COLUM. L. REV. 392 (2001). 28. Memorandum from Elaine Duke, supra, note 8. 29. See Scott Wong & Shira Toeplitz, DREAM Act Dies in Senate, POLITICO (Dec. 18, 2010, 11:39 AM), https://www.politico.com/story/2010/12/dream-act-dies-in-senate-046573; Remarks by the President on Immigration, THE OBAMA WHITE HOUSE (June 12, 2012), https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immi- gration. 38 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI33 ecutorial discretion, provided temporary relief from deportation and work au- thorization for roughly 800,000 young undocumented immigrants.30 Despite being a very popular program among the public and many leading business executives,31 DACA had powerful opponents. Trump repeatedly prom- ised throughout his campaign to end DACA.32 When he did not do so immedi- ately upon entering office, ten states threatened to sue the federal government if the Trump Administration did not end DACA by September 5, 2017.33 On Sep- tember 5, 2017, Attorney General Jeff Sessions announced DACA’s rescission.34 He argued that the program was “unconstitutional” and in effect had “denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.”35 The Trump Administration clarified that the official end to DACA would be in six months—that is, March 2018—giving Congress the op- portunity to act to protect these young immigrants.36 As Congress scrambles under this six-month deadline to try to create a re- placement for DACA in a broader immigration reform bill, all eyes are on whether Congress will protect the group of immigrants the American public has come to call “Dreamers.” Since the first version of the DREAM Act was intro- duced in 2001,37 young undocumented immigrants have generally been called

30. Jens Manuel Krogstad, DACA Has Shielded Nearly 790,000 Young Unauthorized Immigrants From Deportation, PEW RESEARCH CTR. (Sept. 1, 2017), http://www.pewre- search.org/fact-tank/2017/09/01/unauthorized-immigrants-covered-by-daca-face-uncertain- future. 31. See, e.g., Rob Suls, Less Than Half the Public Views Border Wall as an Important Goal for U.S. Immigration Policy, PEW RESEARCH CTR. (Jan. 6, 2017) (72% of Americans support DACA), http://www.pewresearch.org/fact-tank/2017/01/06/less-than-half-the-public- views-border-wall-as-an-important-goal-for-u-s-immigration-policy/; Steven Stepard, Poll: Majority Opposes Deporting Dreamers, POLITICO (Sept. 5, 2017), http://www.polit- ico.com/story/2017/09/05/poll-trump-deporting-daca-dreamers-242343 (76% of voters think Dreamers should be allowed to stay); Tracy Jan, Hundreds of Business Leaders Call on Trump to Protect ‘Dreamers’, WASH. POST (Sept. 1, 2017, 5:00 PM), https://www.washing- tonpost.com/news/wonk/wp/2017/09/01/hundreds-of-business-leaders-call-on-trump-to-pro- tect-dreamers/?utm_term=.a6e2862195f4 (letter from hundreds of business leaders). 32. See, e.g., “Trump Announcement,” supra note 1 (“I will immediately terminate Pres- ident Obama’s illegal executive order on immigration, immediately.”). 33. The states included Texas, Alabama, Arkansas, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee, and West Virginia. See Letter from Ken Paxton, Att’y Gen. of Tex., et al., to Jeff Sessions, Att’y Gen., Dep’t of Justice (June 29, 2017), https://www.tex- asattorneygeneral.gov/files/epress/DACA_letter_6_29_2017.pdf. Tennessee later backed out, citing the “human element” of the issue. Letter from Herbert H. Slatery III, Att’y Gen. of Tenn., to Senators Lamar Alexander & Bob Corker (Sep. 1, 2017), http://i2.cdn.turner.com/cnn/2017/images/09/01/dacaletter9-1-2017.pdf. 34. Ryan Teague Backwith, ‘We Cannot Admit Everyone.’ Read a Transcript of Jeff Sessions’ Remarks on Ending the DACA Program, TIME (Sept. 5, 2017), http://time.com/ 4927426/daca-dreamers-jeff-sessions-transcript. 35. Id. 36. President Donald J. Trump Restores Responsibility and the Rule of Law to Immigra- tion, WHITE HOUSE (Sept. 5, 2017), https://www.whitehouse.gov/briefings-statements/presi- dent-donald-j-trump-restores-responsibility-rule-law-immigration. 37. Immigrant Children’s Educational Advancement and Dropout Prevention Act of 2018] THE DREAMER DIVIDE 39

“Dreamers.” Since Obama created the DACA program, the media has discussed “DACA-recipients” and “Dreamers” mostly synonymously to generally refer to undocumented immigrants who came to the United States as children.38 The term “Dreamer” was originally employed by immigrants’ rights advo- cates and activists as a strategy to humanize and garner empathy for immigrants. In past efforts to pass the DREAM Act, leading advocacy groups highlighted immigrants who came to the United States as young children and went on to become high school valedictorians, Ivy League college students, and military members.39 And when a group of undocumented youth staged a sit-in in Senator John McCain’s office, they wore their caps and gowns.40 Such framing might have been necessary to win over policymakers and members of the public who were not initially supportive of immigration reform, and this strategy is credited with successfully raising the visibility of undocumented youth. But this reliance on the Dreamer image has grown increasingly divisive in the current immigrants’ rights movement. This new debate was on full display at a press conference last fall by House Minority Leader Nancy Pelosi, where un- documented activists staged a protest. As Pelosi responded by saying that she has “been fighting the fight for the Dreamers,” protestors angrily shouted back, “We are not Dreamers!”41 The protestors also chanted, “We are not a bargaining chip!” and later on Twitter declared, “All of us or none of us!”42 Why is this happening? Many of the same immigrants’ rights activists who identified and presented themselves as Dreamers during the last push for the DREAM Act are now speaking out against the term.43 The problem, they say, is that the term Dreamers ultimately “may do more harm than good because the concept is rooted in exceptionalism.”44 That is, the Dreamer narrative is a limited one of high-achieving youth with clean records and who strongly contribute to the economy. Some activists have come to believe that—instead of the public acceptance of Dreamers serving as a stepping-stone to less discrimination against

2001, H.R. 1582, 107th Cong. § 2(b) (2001). 38. See John Daniszewski, AP Style on ‘Dreamers’, ASSOCIATED PRESS: THE DEFINITIVE SOURCE (Sept. 6, 2017), https://blog.ap.org/behind-the-news/ap-style-on-dreamers. 39. See, e.g., THE DREAM IS NOW (Organizing for Action Apr. 14, 2013). 40. Julia Preston, Illegal Immigrant Students Protest at McCain Office, N.Y. TIMES (May 17, 2010), http://www.nytimes.com/2010/05/18/us/18dream.html. 41. Roxana Kopetman & Alejandra Molina, DACA Debate: Don’t Call Them ‘Dream- ers,’ or Pawns, ORANGE CTY. REG. (Sept. 22, 2017, 1:44 PM), http://www.ocregis- ter.com/2017/09/22/daca-debate-dont-call-them-dreamers-or-pawns/. 42. Ed O’Keefe, Nancy Pelosi Confronted by Immigration Rights Protesters About Her DACA Talks with Trump, WASH. POST (Sept. 18, 2017), https://www.washing- tonpost.com/news/powerpost/wp/2017/09/18/nancy-pelosi-confronted-by-daca-recipients- protesting-her-agreement-with-trump/?utm_term=.ea7f760c187b. 43. Jorge Rivas, Why You Should Stop Using the Term DREAMer, SPLINTER NEWS (Aug. 25, 2017, 1:30 PM), https://splinternews.com/why-you-should-stop-using-the-term-dreamer- 1797908148. 44. Id. 40 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI33 all immigrants—the term Dreamer might be used to the detriment of non-Dream- ers. After all, if Dreamers are “deserving” of mercy from deportation because of these characteristics, the implication might be that other groups of immigrants are “less deserving.” This potential problem with the Dreamer narrative plays out in two ways. First, youth who do not fit the Dreamer criteria might be shut out. As one undoc- umented activist explained, “We soon realized that Dreamer, instead of being something empowering, set a standard for undocumented youth.”45 The millions of youth who do not fit into this mold are left vulnerable. For example, the 2010 DREAM Act would have limited the path to citizenship to undocumented immi- grants who have earned a high school diploma, GED certificate, or were cur- rently enrolled in college; came to the United States before they were 16 years old but were no older than 31 years old; and have not been convicted of a felony or certain misdemeanors.46 DACA eligibility criteria largely mirrored the DREAM Act’s requirements.47 These requirements left hundreds of thousands of undocumented youth with- out protection. The high school diploma or GED criteria alone disqualified an estimated 426,000 undocumented youth who would have otherwise qualified for DACA.48 Many youths with a criminal record were also ineligible for DACA. Convictions of misdemeanors such as drug sales, driving under the influence, or burglary were automatic disqualifiers.49 Also, multiple minor run-ins with the law, including juvenile delinquencies or minor traffic offenses, served as possi- ble bases for discretionary denial.50 These criminal bars to DACA are in line with the broader hostility towards so-called “criminal aliens.” For instance, legal scholar Jennifer Chacón argues that such “problematically constructed notions of criminality” are central to the “longstanding false dichotomy of ‘good and bad immigrants,’” and do not take into account the reality that many immigrants live in “heavily policed, low-income neighborhoods.”51 Second, the Dreamer narrative might drive a wedge between young immi- grants and older immigrants. The focus on immigrant youth has the potential to

45. See Jonathan Perez, Challenging the “DREAMer” Narrative, HUFFINGTON POST (Nov. 16, 2014, 12:54 PM), http://www.huffingtonpost.com/jonathan-perez/challenging-the- dreamerna_b_6163008.html. 46. DREAM Act of 2010, S. 3992, 111th Cong. § 4(a)(1) (2010). 47. See Frequently Asked Questions, U.S. CITIZENSHIP & IMMIGR. SERVS., https://www.uscis.gov/archive/frequently-asked-questions#initial%20request (last updated Mar. 8, 2018). 48. Cindy Carcamo, Education Requirements Deter Many Would-be ‘Dreamers,’ Activ- ists Say, L.A. TIMES (Aug. 29, 2014), http://www.latimes.com/nation/immigration/la-na-ff- dreamers-left-behind-20140830-story.html. 49. UNDERSTANDING THE CRIMINAL BARS TO DEFERRED ACTION FOR CHILDHOOD ARRIVALS, IMMIGR. LEGAL RESOURCE CTR. 50. Id. 51. Jennifer M. Chacón, Immigration and the Bully Pulpit, 130 HARV. L. REV. F. 243, 252 (2017). 2018] THE DREAMER DIVIDE 41 deprioritize reforms that would benefit older immigrants. In addition, a key as- pect of the Dreamer narrative is that these youths are blameless—they were brought to the United States when they were children. As an undocumented ac- tivist described, “Nonprofits pushed a narrative in which we had no agency in coming to this country. So who was to blame? Our parents.”52 This characteris- tic, for some members of the public and policymakers, is another way to separate the “good” and “bad” immigrants, casting in negative light undocumented im- migrants who arrived as adults. These potential consequences for immigrants’ rights advocates employing the Dreamer narrative are important to consider as legislators make imprecise and loose promises of “protecting Dreamers.” As Congress pushes to pass an immigration bill before the six-month deadline, much has to be determined— including exactly who will receive protection, the kind of protection they will receive, and what compromises will be made to get these protections. This could play out in a number of ways. For example, some bills would create complicated paths to citizenships that would be available to fewer individ- uals than DACA protected and take over a decade.53 And such limited paths would come with significant tradeoffs, such as expressly prohibiting these youth from ever sponsoring family members to stay in the United States and requiring certain visa holders to sign waivers to give up their rights to a hearing or any discretionary relief if they ever overstayed their visas.54 One activist summarized this approach as one that “leaves out many immigrant youth, requires us to sign away our day in court and walk on eggshells for 15 years.”55 Such proposals do not include enough enforcement measures for President Trump, however, who issued a long list of additional must-have demands for legislation that replaced DACA—including funding the construction of a border wall, hiring 10,000 new Immigration and Customs Enforcement officers, tight- ening standards for asylum-seekers, and imposing greater restrictions on lawful immigration.56 When the undocumented activists confronted Congresswoman Pelosi at her

52. Jonathan Perez, Challenging the “DREAMer” Narrative, HUFFINGTON POST (Nov. 16, 2014, 12:54 PM), http://www.huffingtonpost.com/jonathan-perez/challenging-the-dream- erna_b_6163008.html. 53. One example is The Solution for Undocumented Children Through Careers, Em- ployment, Education, and Defending Our Nation (SUCCEED) Act. See SUCCEED Act, S. 1852, 115th Cong. (2017); THE SUCCEED ACT, THOM TILLIS: U.S. SENATOR FOR N.C. (ex- plaining the path would take 15 years, include “rigorous” background checks that opened them up to being rejected for a myriad of possible reasons, and create many complicated conditions). 54. See Seung Min Kim, GOP Senators Unveil New ‘Dreamers’ Bill, POLITICO (Sept. 25, 2017, 12:00 PM), http://www.politico.com/story/2017/09/25/dreamers-republican-new- bill-243100. 55. See Yamiche Alcindor, Republicans Present Conservative Vision for ‘Dreamer’ Protection, N.Y. TIMES (Sept. 25, 2017), https://www.nytimes.com/2017/09/25/us/politics/re- publicans-daca-citizenship.html. 56. Trump Administration Immigration Policy Priorities, WHITE HOUSE (Oct. 8, 2017), https://www.whitehouse.gov/briefings-statements/trump-administration-immigration-policy- priorities. 42 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI33 press conference, they were expressing their frustration about how the current push for immigration reform risks leaving behind—or actively disadvantaging— many immigrants in pursuit of protecting Dreamers. The creation of a path to legal status or citizenship for a subset of undocumented immigrants could cer- tainly be a tremendous win for the immigrants’ rights movement, but many ac- tivists are increasingly concerned that these efforts might lose sight of the bigger goal of a more sensible and humane immigration system overall.

III. POSSIBLE STEPS FOR A MORE INCLUSIVE IMMIGRANTS’ RIGHTS MOVEMENT

To address systemic issues of hate and discrimination towards immigrants within society, advocates should continuously question the long-term impact of strategies that perhaps unavoidably draw a line that excludes some immigrants from the reach of our advocacy. In this Part, I briefly offer three ideas for how advocates might cultivate a more inclusive movement. First, advocates should try to focus on reforms that increase the pie, instead of making tradeoffs, if at all possible. Even the most recent version of the DREAM Act, which proposed increasing the number of immigrants who would receive protection from deportation, still excluded many seemingly less sympa- thetic immigrant groups, such as older undocumented immigrants, high school dropouts, and immigrants with criminal records.57 Where to draw the line has always been a difficult task for immigrants’ rights advocates, who generally both accept the legitimacy and inevitability of national borders, but simultaneously fight for less restrictive immigration policies.58 Advocates should nonetheless rigorously examine the terms of any legislative deal to see how it affects all im- migrants and be conscious of the immigrants’ rights movement’s long-term goals. Sustaining such focus will, in part, involve fighting human nature. After all, social psychology literature on “moral licensing” shows that after people do something “good” that demonstrates their lack of prejudice, people are more willing to let themselves off the hook to possibly do something prejudicial next time.59 Advocates should remind the public and policymakers that one victory, such as a path to citizenship for a subset of undocumented youth, should not provide a license to disadvantage other marginalized immigrants—and that leg- islation alone is not enough to address society’s systemic discrimination against immigrants.

57. Dream Act of 2017, S. 1615, 115th Cong. § 4(b) (2017). 58. See, e.g., Linda S. Bosniak, Opposing Prop. 187: Undocumented Immigrants and the National Imagination, 28 CONN. L. REV. 555, 573-96 (1996) (opponents to California Proposition 187, which denied public services to undocumented residents, were “constrained in the arguments they c[ould] make” because of “their own predominantly ‘national imagina- tions’”). 59. See Daniel A. Effron et al., Endorsing Obama Licenses Favoring Whites, 45 J. EXPERIMENTAL SOC. PSYCHOL. 590, 590 (2009); Benoît Monin & Dale T. Miller, Moral Cre- dentials and the Expression of Prejudice, 81 J. PERS. & SOC. PSYCHOL. 33, 40 (2001). 2018] THE DREAMER DIVIDE 43

Second, advocates must always be talking directly with the communities they serve. Given that needs and priorities of immigrant communities undoubt- edly change over time, the immigrants’ rights movement leaders should be aware of such changes and be willing to consider adapting strategies. Civil rights leader and legal scholar Derrick Bell discussed this need for advocates to stay connected to communities in his famous and controversial critique of the school desegrega- tion campaign.60 Bell argued that civil rights lawyers’ tactics in hard-fought de- segregation cases worked for a decade, but the lawyers’ “single-minded commit- ment to racial balanc[ing]” over time fell out of sync with community needs.61 As the school desegregation efforts lost momentum in the courts, “civil rights lawyers have not recognized the shift of black parental priorities” from racial balancing to educational improvements.62 Similarly here, the complexities of im- migration reform raise questions of a potentially “higher standard of professional responsibility”63 for advocates to stay continuously attuned to their communities. Thus, as undocumented activists are now speaking out against the term Dream- ers, advocates should pause to try to understand this resistance and grapple with whether they should alter any strategies. Third, advocates should work together, across the many immigrants’ rights organizations and individual practitioners. This is especially important because there is a practical limit to the capacity of a single advocate or organization, and advocates have an obligation to zealously represent clients—which might even include employing strategies such as the Dreamer narrative to prevail. As legal scholar Gerald López argues, advocates are better problem solvers when engag- ing in “extraordinary teamwork.”64 López’s vision for “rebellious lawyering” re- quires that “co-eminent collaborators routinely engage and learn from one an- other and all other pragmatic practitioners.”65 Regardless of whether one believes in López’s vision for change, it is clear that no individual can meaningfully rep- resent the interests of all immigrants given the multitude of diverse communities and the reality that advocates must prioritize their clients’ interests. Thus advo- cates who represent particular immigrant communities should regularly come to- gether—informally in one-off meetings or formally through coalitions—to learn from each other and find overlapping interests. When legislative proposals for immigration reform are on the table, for instance, such collaboration might lead to stronger unified efforts to, whenever possible, push for the reforms that ad- vance the rights of all immigrants.

60. Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L. J. 470, 490-91 (1976). 61. Id. at 515-16. 62. Id. at 471-72, 516. 63. Id. at 471. 64. Gerald P. López, Keynote Address: Living and Lawyering Rebelliously, 73 FORDHAM L. REV. 2041, 2048 (2005). 65. Id. at 2043. 44 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI33

CONCLUSION

Should advocates use the term “Dreamers”? The answer is not straightfor- ward, especially since employing the Dreamer narrative might be an effective strategy to help protect hundreds of thousands of immigrant youth from depor- tation. But advocates should at least think critically about what the term means and recognize that the growing opposition to the term reflects a broader objection to perpetuating a narrative that excludes relatively less sympathetic immigrants. After all, aiming for a more inclusive immigrants’ rights movement might help ensure that the strategies used today not only help immigrants weather the current storm as much as possible, but also chip away at the systemic discrimination against immigrants in our society.

REFLECTIONS ON CHARLOTTESVILLE

Steven R. Shapiro† I began my legal career as a young staff lawyer at the New York State af- filiate of the American Civil Liberties Union (ACLU) in 1976. Shortly thereaf- ter, the ACLU was embroiled in controversy when it agreed to represent a group of neo-Nazis that had been denied permission to march in the village of Skokie, Illinois, a Chicago bedroom community that was home to a significant number of Holocaust survivors. I left the ACLU four decades later, in 2016, ending a twenty-three-year tenure as the organization’s national legal director. A few months after I left, the ACLU was again embroiled in controversy for its decision to represent a group of White supremacists in Charlottesville, Virginia, after the city revoked their original demonstration permit at the downtown site of the Robert E. Lee memorial and sought to move their protest to a different city park several miles away. I was not directly involved in either case but the two cases bracket my time at the ACLU. Each provoked what I regard as a healthy national discussion about the meaning of free speech. That debate is never permanently settled, nor should it be. Why do we tolerate hate speech? What is the alternative? What makes speech dangerous? Are judgments about speech necessarily contextual? Do time and place matter? Should we be less tolerant of intolerant speech when those views are gaining political momentum than when they are confined to the political margins? Who do we trust to draw the lines? What does history teach us about the perils of free speech and the perils of its suppression? These are important questions that need to be asked by each generation. And precisely because these questions are so important, we should never assume the answers. Before addressing those questions directly, it is helpful to separate the ac- tual legal controversies in Skokie and Charlottesville from the broader public discussions they ultimately generated. The litigation in Skokie challenged three village ordinances enacted after local officials learned that a small group of neo-Nazis planned to march through town wearing Nazi uniforms.1 The first

† National Legal Director, American Civil Liberties Union (1993-2016); Lecturer-in- Law at Stanford Law School, Columbia Law School, and NYU School of Law. While in- formed by my experiences at the ACLU, the views expressed in this Essay are entirely my own. 1. See Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978).

45 46 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI45 ordinance required any group seeking a parade permit to obtain $300,000 in li- ability insurance and $50,000 in property insurance.2 The second ordinance prohibited the dissemination of any material that “promote[d] and incite[d] ha- tred against persons by reason of their race, national origin, or religion, and [was] intended to do so.”3 The third ordinance prohibited demonstrators from wearing “military-style” uniforms.4 All three ordinances were struck down.5 Indeed, by the time the case reached the Seventh Circuit, the Village had agreed that the insurance requirement represented an insuperable barrier for many demonstrators and was no longer seeking to apply it against the Nazi march. It had also conceded the unconstitutionality of a total ban on military- style uniforms at all demonstration.6 The Village’s remaining argument—that Nazi uniforms and swastikas could still be banned from the proposed demon- stration because they promoted religious hatred in violation of the second of the three ordinances—was rejected by the Seventh Circuit on the theory that the First Amendment does not permit the suppression of speech merely because it is offensive or hurtful.7 The ordinances in Skokie were written in neutral terms. None specifically referred to Nazism or any other particular ideology. That was not enough to save the ordinances in the end, but it did have one interesting and ironic conse- quence. The only group that was ever prevented from marching in Skokie as a result of the challenged ordinances was the American Jewish War Veterans, who wanted to march in their own military uniforms as a response to the planned Nazi march but were not allowed to do so during the pendency of the litigation.8 In contrast to Skokie, the legal dispute in Charlottesville focused on where the White supremacists would be allowed to march, not whether they would be allowed to march. The organizers initially sought and obtained a permit to rally in Emancipation Park, located downtown. The park, previously known as Lee Park, was the site of a Robert E. Lee statue. The stated purpose of the rally was to express opposition to the renaming of the park and support for the statue, which others were urging the City to take down. Over the next few weeks, the City also issued permits to several groups of counter-demonstrators to rally in other public parks a few blocks away. Then, five days before the scheduled demonstration, the City notified the organizers that it had revoked the original permit and issued a new one, moving the demonstration to a different park more than a mile away. The counter-demonstrators were allowed to remain at their originally designated sites.

2. Id. at 1199. 3. Id. 4. Id. at 1200. 5. Id. at 1207-09. 6. Id. at 1207. 7. Id. 8. See PHILIPPA STRUM, WHEN THE NAZIS CAME TO SKOKIE: FREEDOM FOR SPEECH WE HATE 145 (1999). 2018] REFLECTIONS ON CHARLOTTESVILLE 47

Responding to a motion for a preliminary injunction, the City explained its decision by noting that the number of people it now expected to attend the demonstration and counter-demonstration had raised “safety concerns.”9 The City never elaborated on those safety concerns, however, and never explained in its response to the preliminary injunction why whatever safety concerns it had justified moving the demonstrators but not the counter-demonstrators.10 Based on that sparse record, the district court concluded that the City’s decision reflected hostility toward the demonstrator’s White supremacist message and could not survive First Amendment scrutiny.11 The judicial rulings in both Skokie and Charlottesville rested on the same legal principle of content and viewpoint neutrality. As the Supreme Court has explained, “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”12 Were the decisions in Charlottesville and Skokie both right? Were they both wrong? Are there meaningful differences between the two situ- ations? As things turned out, the demonstration in Skokie never took place.13 The demonstration in Charlottesville did take place and led to tragedy when Heather Heyer was killed by a car that had been driven into a crowd of counter- demonstrators by a self-professed neo-Nazi, who has since been charged with first-degree murder.14 Given the current political climate, it is important to begin with a proposi- tion that should be self-evident. The argument that those who espouse racial hatred and those who oppose it are both protected by the First Amendment does not imply a moral equivalency between the two. When President Trump sug- gested otherwise by stating that there were “very fine people” on both sides at Charlottesville,15 he was widely and appropriately criticized.16 The Supreme

9. Kessler v. City of Charlottesville, No. 3:17CV00056, 2017 WL 3474071, at *1 (W.D. Va. Aug. 11, 2017). 10. Id. 11. Id. at *2 (“The disparity in treatment between the two groups with opposing views suggests that the defendants’ decision to revoke Kessler’s permit was based on the content of his speech rather than other neutral factors that would be equally applicable to Kessler and those protesting against him.”). 12. Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972). 13. After winning their case, the Nazis decided to relocate their demonstration from Skokie to Chicago. Strum, supra note 8, at 154. 14. Paul Duggan, Charge Upgraded to First-Degree Murder for Driver Accused of Ramming Charlottesville Crowd, WASH. POST (Dec. 14, 2017), https://www.washingtonpost.com/local/crime/driver-accused-of-plowing-into- charlottesville-crowd-killing-heather-heyer-due-in-court/2017/12/13/6cbb4ce8-e029-11e7- 89e8-edec16379010_story.html?utm_term=.14dc50bc5ed1. 15. President Donald J. Trump, Remarks by President Trump on Infrastructure (Aug. 15, 2017) (transcript available at https://www.whitehouse.gov/briefings-statements/ remarks-president-trump-infrastructure/). 16. See Eli Blumenthal, Trump’s Remarks on Charlottesville Draw Strong Reactions Across Political Spectrum, USA TODAY (Aug. 12, 2017, 11:31 PM), https://www.usatoday.com/story/news/2017/08/12/the-latest-trumps-remarks-on-clashes- 48 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI45

Court has said that “there is no such thing as a false idea,” as opposed to a false statement of fact.17 But recognizing the distinction between fact and opinion should not prevent us from acknowledging that certain ideas have been discred- ited by history. White supremacy and Nazism are high on that list. We fought a civil war to combat the former and a world war to defeat the latter. Those who seek to revive those discredited ideas cannot be equated with those who resist them on any credible scale of moral values. It is equally important to distinguish between speech and violence. The First Amendment protects “the right of the people peaceably to assemble.”18 Violence, conspiracy to engage in violence, incitement to violence, and true threats of violence, are not constitutionally protected. There is no constitutional impediment, therefore, to imposing civil and/or criminal liability on anyone who engaged in such activities at Charlottesville or any other political protest. Political motivation does not immunize unlawful activity.19 I also have no difficulty with a related proposition that has been the subject of some discussion in the wake of Charlottesville. In my view, cities can ban guns from mass gatherings, including political protests, even in places that oth- erwise permit the carrying of guns in public (whether open or concealed). It is true, as a general principle, that the government cannot require the sacrifice of one constitutional right for another.20 But the Supreme Court’s recognition of an individual right to bear arms under the Second Amendment, misguided as I believe it to be, does not exempt guns and gun possession from all regulation.21 Banning guns and other weapons from mass demonstrations strikes me as a reasonable regulatory response to the increased possibility of lethal violence when large numbers of people gather in a public space. The debate over Charlottesville would not be nearly so intense, however, if the only call were to investigate and punish those who engaged in violence. It is

draw-strong-reactions/104540810/. 17. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). 18. U.S. CONST. amend. I. 19. See generally Nat’l Org. for Women v. Scheidler, 510 U.S. 249 (1994). Civil law- suits have been filed against the organizers of the Charlottesville protest on precisely this theory, including one brought on behalf of eleven people injured during the event. See Com- plaint, Sines v. Kessler, No. 3:17CV00072, 2017 WL 4586839, (W.D. Va. Nov. 30, 2017). 20. The unconstitutional conditions doctrine prohibits the government from demanding the relinquishment of a constitutional right in order to receive an otherwise available gov- ernment benefit. For example, the Supreme Court ruled more than a half-century ago that California could not condition a property tax exemption for veterans on the signing of a loy- alty oath. Speiser v. Randall, 357 U.S. 513 (1958). That is true even when there is no enti- tlement to the benefit, see Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 674-75 (1996) (collecting cases), let alone when two constitutional rights are at stake. 21. The Supreme Court upheld an individual right to bear arms in District of Columbia v. Heller, 554 U.S. 570 (2008), but recognized that the right is “not unlimited” and does not imply “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. See also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion) (asserting that Heller “does not imperil every law regulating fire- arms”). 2018] REFLECTIONS ON CHARLOTTESVILLE 49

America’s constitutional tolerance for hate speech, even when divorced from actual violence, that has now been called into question, just as it was two gen- erations ago following the controversy in Skokie. The principle that hate speech is a protected form of free speech is almost uniquely an American one. Interna- tional law not only condemns hate speech, it requires all countries to prohibit it.22 The United States has chosen instead to opt out of that aspect of the inter- national legal framework and the obligations it imposes.23 It is fair to ask why, and whether that stance can be justified in a country whose Constitution and ethos purport to value equality as well as liberty. Platitudes about the First Amendment are not sufficient. Nor can we pre- tend that the consequences of hate speech are harmless. At an individual level, it can cause emotional and psychic injuries that are more enduring than physi- cal injuries. At a social level, it can impact public policies and attitudes in a way that reinforces and purportedly rationalizes racial, religious, and ethnic in- equalities that stubbornly persist in such critical areas of American life as vot- ing, education, housing, criminal justice, income, and wealth, among others.24 Traditional First Amendment theory offers a variety of justifications for our robust protection of free speech.25 The question in my mind is not whether those justifications makes sense in general, but whether they make sense with regard to hate speech in particular. In other words, Charlottesville and Skokie do not present a facial challenge to free speech but an as-applied one. With that in mind, it is worth measuring each of the traditional justifications for free speech against the specific harms that can be (and often are) occasioned by hate speech. First, the right to believe what we want and say what we believe is a basic attribute of our humanity. Free speech is an expression of our individual con- sciousness. It defines who we are as separate and distinct from other human be- ings, and respect for those differences promotes human dignity. Under this the- ory, we protect free speech as a good in itself and not merely for its instrumental value in achieving other desired ends. Rights of conscience have never been treated as absolute, however. The government’s ability to accom- modate the free exercise of religion, for example, is limited by the impact of

22. Article 20 of the International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171 (adopted Dec. 19, 1966) provides: “Any advocacy of national, racial, or reli- gious hatred that constitutes incitement to discrimination, hostility or violence shall be pro- hibited by law.” 23. The U.S. ratification of the ICCPR contained an express reservation to Article 20, which was regarded as inconsistent with the First Amendment. S. COMM. ON FOREIGN RELATIONS, REPORT ON THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, S. EXEC. REP. NO. 102-23, at 6-7 (2d Sess. 1992). 24. For an influential discussion of these impacts, see MARI J. MATSUDA, CHARLES R. LAWRENCE III, RICHARD DELGADO & KIMBERLE WILLIAMS CRENSHAW, WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH AND THE FIRST AMENDMENT (1993). 25. See generally THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1970) (explaining the functions freedom of expression plays in a democratic society). 50 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI45 that accommodation on third parties.26 It is not immediately obvious why the impact on others should not also be relevant in assessing possible limits on free speech. And, indeed, that is the entire basis for treating defamation as outside the protection of the First Amendment entirely. To be sure, defamation law al- lows recovery for false statements of fact, not false opinions or ideas. And even with regard to false statements of fact, we require a showing of constitutional malice when the defamation plaintiff is either a public official or public figure- i.e., knowledge that the statement is false or reckless disregard of whether it is true or falsein order to minimize the chill on public discourse.27 But these First Amendment safeguards, important as they are, have less to do with indi- vidual autonomy than the communitarian value we attach to uninhibited politi- cal exchange. Second, it is said that free speech drives the search for truth. In the words of Justice Brandeis, the remedy for speech is “more speech, not enforced si- lence.”28 Under this theory, ideas are tested and improved through the market- place of ideas. This process, it is claimed, weeds out pernicious ideas and re- fines socially beneficial ones. This may well be true with regard to scientific inquiry and it would be nice if it were true in the political realm, as well. Histo- ry, however, offers too many examples of despotic regimes for me to take com- fort in the assumption that good ideas will inevitably triumph over evil ones so long as there is a free and open debate. And, even if that is true over the long course of history in the belief that the arc of the moral universe bends toward justice, as Dr. Martin Luther King, Jr. so often said,29 there can be much dam- age done in the short run. Take the resurgence of neo-Nazi ideologies in Europe and elsewhere. Do we really need to engage in a free and open debate with those who embrace that ideology to appreciate its dangers and discard it again? One can and should be encouraged by the response to neo-Nazism and White supremacy that we have seen in Charlottesville and other cities. But can we re- ally be certain that we know what the future holds so long as we trust in the process? Certainly, Europe has made a different judgment. Third, and relatedly, a strong First Amendment has been deemed essential to a functioning democracy.30 There is undoubtedly logic to the notion that de- mocracy cannot flourish without an informed electorate, and an informed elec- torate is not possible without the free flow of information and ideas. But, is it

26. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708-09 (1985) (holding unconsti- tutional under the Establishment Clause a Connecticut statute guaranteeing every employee the right to observe her own Sabbath because it left no room to consider the “burden or in- convenience this imposes on the employer or fellow workers”). 27. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). 28. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). 29. Our God Is Marching On! (Mar. 25, 1965) (transcript available at https://kinginstitute.stanford.edu/our-god-marching) (speech delivered at the conclusion of the Selma-to-Montgomery march). 30. E.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF- GOVERNMENT 93-94 (1948) (“[T]he principle of freedom of speech is derived . . . from the necessities of self-government by universal suffrage.”). 2018] REFLECTIONS ON CHARLOTTESVILLE 51 really true that the suppression of any ideas, no matter how anti-democratic, will necessarily stifle democracy? Again, Europe offers a counter-example. Hate speech has been widely banned;31 yet, it would be hard to argue that Eng- land, France and Germany—to take just three examples—do not have function- ing democracies. If anything, the range of political discourse in each of those countries strikes me as even broader than in the United States, extending fur- ther on the political spectrum to both the left and the right. This is not to en- dorse the regulation of hate speech as Europe has practiced it,32 but merely to raise questions about the often implicit assumption in the United States that any regulation of hate speech is, ipso facto, incompatible with democracy. Fourth, the First Amendment has been regarded as a political safety valve in two ways. Permitting dissident and even hateful groups to voice their views publicly allows time and opportunity for the opposition to galvanize. Converse- ly, suppressing such groups only drives them underground where their anger can fester and they are more difficult to monitor. Perhaps that is true, but it is also true that mighty oaks from little acorns grow. Hitler started with only a handful of supporters but ultimately took over Germany and ravaged Europe. Hate speech can be like a match thrown in the woods. It can either expire harmlessly or lead to a raging forest fire. History offers examples of both. In addition to these affirmative First Amendment theories, there is what may be described as a negative rationale for our belief in a system of free ex- pression: distrust of the government’s ability to draw a line between protected and unprotected speech that does not favor the powerful and popular over the vulnerable and unpopular. The Supreme Court may have written that free speech “best serve[s] its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to an- ger.”33 And Thomas Jefferson may have believed that “a little rebellion now and then is a good thing.”34 Those in power rarely share either sentiment; they are far more likely to perceive challenges to their own authority or majority opinion as engines of instability and threats to the social order. The rule against content and viewpoint discrimination was developed to safeguard against that natural human tendency.35 Likewise, the Supreme Court has held that speech can only be punished as an incitement to violence if it is intended and likely to

31. A collection of European hate speech laws is available at European Hate Speech Laws, THE LEGAL SPEECH PROJECT, http://www.legal-project.org/issues/european-hate- speech-laws. 32. For example, France’s highest court recently upheld the conviction of twelve pro- Palestinians activists for violating France’s hate speech laws by wearing T-shirts that read: “Long Live Palestine – Boycott Israel.” See Glenn Greenwald, In Europe, Hate Speech Laws Are Often Used to Suppress and Punish Left-Wing Viewpoints, THE INTERCEPT (Aug. 29, 2017, 8:42 AM), https://theintercept.com/2017/08/29/in-europe-hate-speech-laws-are-often- used-to-suppress-and-punish-left-wing-viewpoints/. 33. Terminiello v. City of Chi., 337 U.S. 1, 4 (1949). 34. Letter from Thomas Jefferson to James Madison, (Jan. 30, 1787) (available at https://www.monticello.org/site/jefferson/little-rebellionquotation). 35. See Mosley, supra note 12 (and accompanying text). 52 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI45 cause imminent lawless action.36 Beyond the general proposition that censorship powers are almost always abused if for no other reason than “the business of the censor is to censor,”37 history amply demonstrates the risk of allowing government officials to sup- press speech deemed too dangerous to tolerate. Throughout the early part of the twentieth century, war protestors, labor picketers, civil rights activists, and fem- inists were routinely arrested and jailed for engaging in speech (or such expres- sive activities as picketing) that were viewed by those with the power to decide as presenting “a clear and present danger . . . [of] substantive evils that Con- gress ha[d] a right to prevent.”38 Margaret Sanger, who went on to found Planned Parenthood, was the subject of an arrest warrant in 1914 on the ground that she had violated the obscenity laws by publishing a sex education column entitled “What Every Girl Should Know.”39 In 1919, Eugene Debs, a prominent labor leader and five-time presidential candidate, was convicted under the Es- pionage Act of 1917 and sentenced to ten years in prison for giving a speech in praise of socialism, on the theory that its anti-war sentiments would discourage others from joining the Army and thus interfere with the government’s recruit- ment efforts.40 As recently as 1962, Dr. Martin Luther King, Jr. was sentenced to forty-five days in jail in Albany, Georgia (after refusing to pay a fine) for praying outside city hall as part of an anti-segregation campaign.41 The development of the modern First Amendment, with its emphasis on content and viewpoint neutrality, helped propel the great social movements of our time and the so-called rights revolution. That was true for the labor move- ment,42 and it was true for the civil rights movement. The greatest legislative achievements of the civil rights era—the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Fair Housing Act of 1968—were the result of a sus- tained political effort, much of which took place in the streets. Not coinci- dentally, many of the Court’s most important civil rights decisions following Brown v. Board of Education43 involved the First Amendment. For example, in Edwards v. South Carolina, civil rights protestors were ar- rested for breach of the peace while engaged in a non-violent demonstration

36. Brandenberg v. Ohio, 395 U.S. 444, 447 (1969). By requiring a close nexus be- tween speech and any unlawful conduct that may occur afterwards, the decision in Branden- burg provided constitutional protection for “mere advocacy,” which “our Constitution has immunized from government control.” Id. at 448. 37. Freedman v. State of Md., 380 U.S. 51, 57 (1965). 38. Schenck v. U.S., 249 U.S. 47, 52 (1919). 39. See Gloria Feldt, Margaret Sanger’s Obscenity, N.Y. TIMES (Oct. 15, 2006), http://www.nytimes.com/2006/10/15/opinion/nyregionopinions/15CIfeldt.html. 40. Debs v. U.S., 249 U.S. 211, 215 (1919). 41. Taylor Branch, PARTING THE WATERS: AMERICA IN THE KING YEARS 600 (1988). 42. E.g., Thornhill v. Alabama, 310 U.S. 88 (1940) (upholding the First Amendment right to engage in peaceful labor picketing); Hague v. CIO, 307 U.S. 496 (1939) (affirming the right of a labor union to hold public meetings in Jersey City). 43. 347 U.S. 483 (1954). 2018] REFLECTIONS ON CHARLOTTESVILLE 53 outside the statehouse.44 Their convictions were reversed by the Supreme Court. In Shuttlesworth v. City of Birmingham, civil rights protestors were ar- rested for marching without a permit in violation of an ordinance that gave city officials unfettered discretion to grant or deny such permits.45 Their convic- tions, too, were overturned by the Supreme Court. In Gregory v. City of Chica- go, civil rights protestors were arrested for refusing to suspend their peaceful march despite a police order to disperse.46 The Supreme Court again reversed, calling it a “simple case.”47 And, in NAACP v. Claiborne Hardware Co., the Court overturned what would have been a crippling damages award against the Mississippi chapter of the NAACP and its leader, Charles Evers, holding that the First Amendment protected their right to organize a peaceful boycott of lo- cal merchants in support of integration, and that they could not be held liable for violence associated with the boycott despite their “emotionally charged rhetoric,” absent evidence that they had participated in the violence or unlaw- fully incited it.48 Not all of these decisions explicitly rested on the neutrality principle, but the Court’s reliance on other doctrines was nonetheless informed by its skepticism that the government decisions under review were in fact moti- vated by ideological hostility toward disfavored speakers.49 Is any of this history relevant to the current hate speech debate? My answer is yes. The power to suppress hate speech (assuming it is expressed peacefully) necessarily assumes the power to suppress ideas that are deemed unacceptable. The decision of what ideas are suitable for public expression will never be made by those who need the First Amendment most—the politically marginal- ized and “discrete and insular” minorities that cannot rely on the political sys- tem to vindicate their rights.50 It will be made by the politically powerful, who have a self-interest in perpetuating their own power. Is hate speech different? Can it be treated as an exception to the rule that political advocacy is constitutionally protected? For me, the relevant question is not whether hate speech has uniquely harmful consequences that distinguish it from other political advocacy, but whether those who will be drawing the lines are likely to recognize the same limiting principles. Neither history nor con- temporary events fill me with confidence. Only a few months ago, in Novem- ber 2017, a leaked report revealed that the FBI had created a new counter- terrorism label for Black Identity Extremists, which led to fears that the FBI would then use that label to justify political surveillance of Black Lives Matter

44. 372 U.S. 229, 235-36 (1963). 45. 394 U.S. 147, 150-51 (1969) 46. 394 U.S. 111 (1969). 47. Id. at 111. 48. 458 U.S. 886, 928 (1982). 49. See Elena Kagan, Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 414 (1996) (arguing that “First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives”). 50. U.S. v. Carolene Products, 304 U.S. 144, 153 n.4 (1938). 54 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI45 and other groups protesting police brutality and discriminatory law enforce- ment (although the FBI denied that any such surveillance was taking place at the moment).51 There is peril in opening Pandora’s box. The country is not in the same place today that it was in the late 1970s when the Nazis tried to march in Skokie and we should not pretend otherwise. Justice Holmes once explained his disagreement with a 20-year sentence im- posed on two defendants who had been convicted under the Espionage Act for distributing anti-war leaflets during World War I by describing them as “puny anonymities.”52 That same characterization could have been applied with more justification to Frank Collins and his handful of neo-Nazi cohorts at the center of the Skokie controversy.53 Sadly, it is impossible to dismiss the White su- premacists who gathered in Charlottesville quite so easily. Their numbers have grown, in part due to the organizing capacity of social media, and we now have major party politicians, including President Trump, who seem quite willing to exploit racial division for political gain. That growing strength is cause for serious concern, but also highlights the risk of creating exceptions to the First Amendment that can then be used like a boomerang against those seeking to protest in favor of progressive causes. Al- ready, we have seen a record number of anti-protest bills introduced in state legislatures around the country, and they are not directed at the White suprema- cists.54 More than one hundred people who participated in a protest in Wash- ington, D.C. on the day of President Trump’s inauguration were charged with rioting despite little or no evidence that they had engaged in any violent activi- ty.55 There are no easy answers or guaranteed outcomes to the hate speech prob- lem. Permitting hate speech carries the risk that it will be persuasive, leading to further inequality (or worse) and an even more divided society. Changing the free speech rules to suppress hate speech carries the risk that a diluted First Amendment will no longer protect those who seek to oppose hate speech with more speech, and may produce other unintended consequences as well, espe- cially if those whose core ideology is hostile to civil liberties achieve greater political power. In the end, I am more willing to trust in a strong First Amend-

51. Adam Goldman & Nicholas Fandos, Lawmakers Confront F.B.I. Director Over Report on Black Extremists, N.Y. TIMES (Nov. 29, 2017), https://www.nytimes.com/ 2017/11/29/us/politics/fbi-black-identity-extremist-report.html. 52. Abrams v. U.S., 250 U.S. 616, 629 (1919) (Holmes, J., dissenting). 53. See generally Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978). 54. Lee Rowland & Vera Eidelman, Where Protests Flourish, Anti-Protest Bills Fol- low, ACLU (Feb. 17, 2017, 2:00 PM), https://www.aclu.org/blog/free-speech/rights- protesters/where-protests-flourish-anti-protest-bills-follow. 55. Keith L. Alexander, Judge Dismisses Lead Rioting Charge Against Defendants in Inauguration Day Protest Trial, WASH. POST (Dec. 13, 2017), https://www.washingtonpost.com/local/public-safety/judge-dismisses-lead-rioting-charge- against-six-defendants-in-inauguration-day-rioting-trial/2017/12/13/38db9382-e020-11e7- 8679-a9728984779c_story.html?utm_term=.b3a303e1da41. 2018] REFLECTIONS ON CHARLOTTESVILLE 55 ment and an independent judiciary. It is, I recognize, as much a leap of faith as an exercise in reason. As Justice Holmes wisely observed many years ago: The Constitution “is an experiment, as all life is an experiment.”56 A century later, the experiment continues.

56. Abrams, 250 U.S. at 630. 56 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI45

IS IT A MAN’S WORLD? RECONCEPTUALIZING THE RIGHT TO BE HEARD IN THE AFTERMATH OF THE CHARLOTTESVILLE TRAGEDY

Camille Gear Rich†

SYNOPSIS1

This forthcoming Essay draws upon the racial conflict spurred by the “Unite the Right” rally in Charlottesville, Virginia, to explore the unspoken relationship between gender, protest, and violence in contemporary American society. It posits that the anemic response from the ACLU and government to the threat posed by the Unite the Right rally in Charlottesville stems from various gendered limitations in traditional First Amendment analysis. Armed with insights from masculinity studies, feminist legal theory, and Critical Race Theory, the Essay highlights some of these limitations. It aims to prompt more searching inquiry into the ways gender constructs inform seemingly gender- neutral areas of First Amendment law. The Essay identifies two problems revealed by the responses to the Charlottesville events. First, it posits that our free speech jurisprudence was, as a matter of history, created in a “man’s world” with limited female participation. As a consequence, First Amendment doctrine encodes certain gendered cultural assumptions that assume a close relationship between passionate political protest and violence. This standard appeared to have required Charlottesville officials to protect protestors’ speech up to and until it constituted a call for immediate violence, or amounted to a concrete threat of tangible harm. This approach, in effect, subsidizes the interests of a specific identity construct called “protest masculinity,” which sociologists have recognized as a threat to minority communities and society more generally. The Essay argues that free speech doctrine focused on incitement and “true threats” of violence as the primary threats to democracy fails to adequately credit the harms inflicted by other forms of political intimidation.

† Professor of Law and Sociology, U.S.C. Gould School of Law. 1. Essay forthcoming.

57 58 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XIV:SI57

Second, the essay shows that our traditional doctrinal focus on individual rights—rather than community concerns—is masculine-gendered, and has tangible consequences for the quality of American political debate. It argues that First Amendment law needs more nuanced constructs that can accommodate the various fiduciary duties government officials have to local residents, stemming from captive audience considerations, including being used as props, foils, or forced witnesses to intentionally demeaning and traumatizing public speech. It emphasizes the need for a doctrine that permits a historically contextualized inquiry into targeted attempts at intimidation, as this approach would far better subsidize the expression of free speech interests that are valuable to democracy. The Essay concludes by examining areas of First Amendment doctrine that could be reimagined with more sensitivity to the risks posed by hidden masculinity norms. It shows that existing underdetermined and underdeveloped First Amendment doctrinal concepts can be interpreted to address fiduciary and communitarian interests. More broadly, the Essay claims that the time has come for First Amendment scholars to face the hidden gender norms in our doctrine, and to raise questions about how these standards compromise political debate. Once these norms are revealed, scholars can have far richer conversations about how First Amendment doctrine can be improved to ensure full participation by a broader range of speakers.