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Deportation, Moncrieffe and the Rights of Immigrants

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By Jesse Rockoff & Leila Kang

On the morning of October 10, 2012, we arrived at the front steps of the Supreme Court. Waiting for the doors to open, we formed a small circle with our colleagues in the Immigrant Rights Clinic and our professor Alina Das. Surrounding us were crowds of journalists and activists—but hardly any of them were interested in the argument that we were scheduled to attend. Most of them were there to show their support, in one way or another, for the argument in Fisher v. University of Texas at Austin.[1] The great majority were unaware that Fisher was being preceded by oral argument for Moncrieffe v. Holder,[2] a case that would affect thousands of immigrants facing deportation from the U.S. due to past criminal convictions. After many months of anxious waiting, immigrants’ rights advocates around the country breathed a sigh of relief after reading the Moncrieffe opinion on April 23rd.

At base, Moncrieffe is about a superficially dry question of statutory construction: namely, whether Congress intended the social sharing of a small amount of marijuana to presumptively qualify as an “aggravated felony” for immigration purposes. The result in Moncrieffe, however, signals a welcome recognition that the immigration system treats immigrants with criminal convictions out of all proportion with the acts for which they were originally punished.

To understand the import of Moncrieffe, one must be acquainted with the “categorical approach,” the main interpretive tool for assessing the criminal convictions of noncitizens. For nearly a hundred years,[3] the categorical approach has served to focus immigration adjudications solely on the type of convictions on a noncitizen’s record, rather than the actual conduct that led to these convictions. The primary purpose of the categorical approach is to promote administrability and fairness in civil immigration proceedings, which lack the procedural safeguards of the criminal process.[4] The categorical approach also helps to promote predictability for criminal attorneys seeking to properly advise noncitizens of the consequences of potential criminal dispositions and pleas, as required by the Supreme Court under Padilla v. Kentucky.[5] While the bright-line rules of the categorical approach may sometimes cut against noncitizens, immigration advocates generally seem to be of the opinion that the categorical approach does more good than harm.

 The last several years have seen a series of efforts by the Department of Homeland Security (DHS), with varying degrees of success, to erode the categorical approach.[6] Despite the additional work created for massively backlogged immigration courts in delving into the circumstances of noncitizens’ sometimes ancient criminal convictions, the government has attempted to undermine the categorical approach not only as a way to gather more information on the noncitizens it seeks to deport, but also as a way of imposing an insurmountable burden on respondents. The government’s position, at least until Moncrieffe, was that it could charge respondents with “evidence indicat[ing]” an aggravated felony and then force noncitizens to produce evidence rebutting this presumptive conduct on pain of deportation.[7] This position became the law in three circuits.[8] Essentially, the government’s solution to administrative difficulties caused by its rejection of the categorical approach was to shift the necessary record-building to respondents,[9] many of whom were detained, many of whom were without legal representation, and many of whose convictions occurred decades ago, with the necessary records long since lost or destroyed. The result was a government end run around any reasonable conception of basic fairness for immigrants with criminal convictions.

The detrimental impact of this erosion of the categorical approach became particularly acute for immigrants who were convicted of minor misdemeanor marijuana offenses, like Adrian Moncrieffe. Moncrieffe is a Jamaican national who had been a lawful permanent of the resident (“LPR” or “green card” holder) of the United States since 1984, when he was three years old.[10] During a traffic stop in 2007, police found 1.3 grams of marijuana in his car and he pleaded guilty to possession with intent to distribute, in violation of a Georgia statute.[11] As a first-time offender, Moncrieffe received no jail sentence, but instead was required to complete five years of probation, at the end of which his charge would be expunged.[12] While this plea proceeding may have seemed relatively innocuous to Moncrieffe and his criminal defense attorney at the time, it became the reason for his deportation proceeding: the Department of Homeland Security argued that his conviction was for a drug trafficking aggravated felony, and that Moncrieffe was removable from the United States and ineligible to seek any form of relief from deportation.[13]

Many others before Moncrieffe were unjustly treated as “drug trafficking aggravated felons,” as discussed at length in an amicus brief filed on behalf of immigration law professors[14]:

  • Tam Duy Pham was a Vietnamese refugee who became an LPR in 2001. He pleaded guilty to conspiracy to commit a misdemeanor in violation of a Virginia statute that included the giving of marijuana, received a 12-month suspended sentence, and was placed on probation. Seven years after his guilty plea, he was removed from the United States for being a drug trafficking aggravated felon.[15]
  • Belito Garcia arrived as an LPR in 1982, fleeing persecution and civil war in Angola. His parents, wife, and son were all U.S. citizens. Fourteen years after obtaining his green card, Mr. Garcia pled guilty to two counts of possession with intent to distribute marijuana in violation of Pennsylvania law. He also did not serve a jail sentence but received one year of probation. Even though he faced persecution if returned to Angola, he was prevented from seeking asylum.[16]

In Moncrieffe, the Supreme Court unequivocally held that such convictions do not necessarily constitute aggravated felonies.[17] This is because these convictions, without more, now definitively cannot establish a presumption that the underlying conduct corresponds to ‘drug trafficking’ as defined by the federal Controlled Substances Act.[18] The Court thereby reaffirmed the correct application of the categorical approach: when determining whether a particular criminal conviction renders a noncitizen deportable, immigration courts are to presume that it “rested upon [nothing] more than the least of th[e] acts criminalized.”[19] The Court also admonished the government for its continuous attempts to classify low-level drug offenses as “illicit trafficking aggravated felonies,” noting that such an approach “defies the commonsense conception of these terms.”[20] Moreover, the Court stated that “ambiguity in criminal statutes referenced by the INA [Immigration and Nationality Act] must be construed in the noncitizen’s favor”[21]—a rare affirmation of the rule of lenity in the immigration context.

Before Moncrieffe, lawfully residing immigrants could be deported for sharing a small quantity of marijuana without any opportunity to seek relief.[22] Now, thanks to seven members of the Supreme Court, the government may no longer rely exclusively on such conduct as grounds for separating noncitizens from their families and the only country they may have ever really known. However, while the immigrant rights community is savoring the Moncrieffe victory, the immigration system continues to treat noncitizens with criminal convictions in almost unimaginably harsh ways.[23] Litigation is only one of many tools to finally restore some measure of justice and proportionality to individuals who have long since paid their debts to society—our shared society.

Leila and Jesse are currently  2L Staff Editors on the Review of Law and Social Change. Both are representing noncitizens with criminal convictions in the Immigrants Rights Clinic.


[1] 132 S. Ct. 1536 (2012) (granting certiorari).

[2] No. 11-702, 569 U.S. ___ (Apr. 23, 2013), available at http://www.supremecourt.gov/opinions/12pdf/11-702_9p6b.pdf.

[3] Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669, 1688–1702, 1749–52 (2011). See also Moncrieffe at 6 (citing Das, supra).

[4] Moncrieffe at 15–16 (collecting cases and noting that the categorical approach “promotes judicial and administrative efficiency by precluding the relitigation of past convictions in minitrials conducted long after the fact”).

[5] 559 U.S. 356 (2010).

[6] See, e.g., Nijhawan v. Holder, 557 U.S. 29 (2009); Lanferman, 25 I. & N. Dec. 721 (B.I.A. 2012); Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).

[7] See 8 C.F.R. § 1240.8(d).

[8] See Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc); Salem v. Holder, 647 F.3d 111 (4th Cir. 2011); Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009). But see Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008).

[9] See, e.g., Castro-Rodriguez, 25 I. & N. Dec. 698 (B.I.A. 2012), overruled by Moncrieffe v. Holder, No. 11-702, 569 U.S. ___ (Apr. 23, 2013). Cf. I.N.A. § 240(c)(3)(A) (requiring that the government bear the burden of proving a noncitizen’s removability by clear and convincing evidence).

[10] Moncrieffe at 3.

[11] Id.; Ga. Code Ann. §16-13-30(j)(1) (2007) (“It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.”).

[12] Moncrieffe at 3.

[13] Id. at 3–4.

[14] Brief of Immigration Law Professors as Amici Curiae in Support of Petitioner, Moncrieffe v. Holder, 569 U.S. ___ (2013) (No. 11-702), 2012 WL 2561163 [hereinafter Law Professors]. See also In Upcoming Supreme Court Case, the Immigrant Rights Clinic and the Center for the Administration of Criminal Law Weigh in with Amicus Briefs, N.Y.U. Sch. of L., News, http://ecmappdlv02.law.nyu.edu/nyu_law_website//news/UPCOMING_SUPREME_COURT_CASE_TWO_NYULAW_ENTITIES_WEIGH_IN (last visited May 5, 2013).

[15] Law Professors, supra note 14, at 24–25. See Pham v. Holder, 442 Fed. App’x 62 (4th Cir. 2011).

[16] Law Professors, supra note 14, at 34–35. See Garcia v. Att’y Gen., 462 F.3d 287 (3d Cir. 2006).

[17] Moncrieffe v. Holder, No. 11-702, 569 U.S. ___, slip op. at 1–2, 22 (Apr. 23, 2013).

[18] Id. at 6–9.

[19] Id. at 5 (citing Johnson v. United States, 559 U.S. 133, 137 (2010)) (internal quotation marks omitted).

[20] Id. at 21 (citing Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010)) (internal quotation marks omitted).

[21] Id. at 20–21. See also Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).

[22] As the Court acknowledged in Moncrieffe, the result of the decision is not that Moncrieffe necessarily avoids deportation. His conviction still constitutes a controlled substance violation. At the very least, however, he may apply for cancellation of removal, which allows lawful permanent residents to demonstrate the reasons for why they should not be removed.

[23] See Peter Markowitz, Deportation is Different, 13 U. Penn. J. Const. L. 1299, 1301–03 (2011).

Politics Versus Policy: Plan B’s Place in the Reproductive Rights Movement Today

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By Chelsea Stevens

Reproductive rights do not begin and end with a woman’s legal right to have an abortion. The reproductive rights movement encompasses everything from the need for comprehensive sexual education to the push for more adequate and readily available reproductive health facilities. Recently, in New York, a battle over contraception sparked a reproductive rights controversy. While this may sound surprising since condoms are available at nearly every drug store and are clearly in no short supply, gaining access to hormonal or implantable forms of contraception for women is no easy feat. Birth control pills require a prescription and the recurring monthly cost has made them far more expensive than male condoms.[1] An intrauterine device (IUD) can be costly and requires insertion by a medical professional. And what happens when these methods of birth control, whether condom or contraceptive pill, fail?

In 2006, the Food and Drug Administration (“FDA”) approved non-prescription access to Plan B for women aged 18 and older.[2] Plan B and Plan B One-Step are “emergency contraceptives that can be taken to reduce the risk of pregnancy after unprotected intercourse” and are “most effective when taken immediately after intercourse,” preferably within 24 hours.[3] These contraceptives “have not been shown to cause any change in the uterus that could interfere with implantation of a fertilized egg”[4] and are not to be confused with RU-486, better known as the abortion pill. Instead, Plan B reduces the number of sperm cells in the uterine cavity, immobilizes sperm, impedes further passage of sperm cells into the uterine cavity, and “has the capacity to delay or prevent ovulation from occurring.”[5]

Until recently, women under the age of 18 needed a prescription to obtain Plan B.[6] If the monetary cost of having to go to the doctor for this prescription wasn’t enough of a deterrent for young women attempting to access this emergency contraceptive, the lengthy process of making a doctor’s appointment, getting to the doctor, and picking up a prescription undercut the very effectiveness of Plan B, which grows less effective as time passes. However, on April 4, 2013, in Tummino v. Hamburg (Tummino II), a federal judge ordered that Plan B be made available over-the-counter for women of all ages.[7]

The judge who heard Tummino II, the Honorable Edward R. Korman of the Eastern District of New York, addressed a similar issue in 2009 in Tummino v. Torti (Tummino I).[8] In that case, Judge Korman wrote that the FDA’s failure to respond to the citizen petition seeking over-the-counter access to Plan B for women of all ages was arbitrary and capricious because it was not the result of reasoned and good faith agency decision-making.[9] Judge Korman directed the FDA to make Plan B available to 17-year-old women without a prescription, because the same evidence relied on by the agency to support over-the-counter access to the drug by 18-year-olds applied equally to 17-year-olds.[10] The FDA conceded this point, stating it was “consistent with the scientific findings [the FDA] made in 2005.”[11]

Upon reviewing the citizen petition and the scientific research, the FDA decided to allow the marketing of Plan B without a prescription “for all females of child-bearing potential.”[12] Yet Health and Human Services Secretary Kathleen Sebelius countermanded the move by the FDA, specifically citing the fact that the manufacturer had failed to study whether the drug was safe for 11-year-old girls.[13] President Obama endorsed this decision, explaining that “the reason [Secretary Sebelius] made this decision was she could not be confident that a 10-year-old or an 11-year-old . . . should be able . . . to buy a medication that potentially, if not used properly, could end up having an adverse effect.”[14]

However, in Tummino II, Judge Korman makes it clear that he does not believe this case is about the potential misuse of Plan B by 11-year-olds, only “about 10 percent of whom are physically able to bear children” according to the New York Times.[15] Among other reasons, Judge Korman points out that emergency contraceptives would be among the safest drugs sold over-the-counter, that the number of 11-year-olds using these drugs is likely to be miniscule, and that the FDA permits drugs that it has found to be unsafe for the pediatric population to be sold over-the-counter subject only to labeling restrictions.[16] Judge Korman wrote, instead, that “the secretary’s action was politically motivated, scientifically unjustified, and contrary to agency precedent.”[17]

Aside from the problem of the Secretary of Health and Human Services overruling the FDA in an area which Congress entrusted primarily to the FDA and which “fell within the scope of the authority that the Secretary expressly delegated to the Commissioner,” Judge Korman said the motivation for the Secretary’s action was “obviously political.”[18] This was the first time a cabinet member had ever publicly countermanded a determination by the FDA[19] and it was a decision that “many public health experts saw as a politically motivated effort to avoid riling religious groups and others opposed to making birth control available to girls.”[20] Even looking past the obvious political motivation, Judge Korman said that the reasons Sebelius provided were unpersuasive and failed to offer a coherent justification for denying the over-the-counter sale of Plan B to the “overwhelming majority of women of all ages who may have need for those drugs and who are capable of understanding their correct use.”[21]

It is notable that this debate over access to Plan B takes place at a time that marks the fortieth anniversary of the historic reproductive rights case Roe v. Wade.[22] Now, four decades after the Supreme Court handed down that landmark decision, women are still fighting for reproductive freedom in America. In fact, this year in particular, state legislatures have been taking action not to preserve women’s reproductive rights, but rather to limit, restrict, and in many cases all but eliminate them.[23] For instance, the Arkansas State Senate recently approved a bill prohibiting the state from awarding grants to abortion providers, which could affect “doctors and entities like rape crisis centers if they refer women to abortion providers.”[24] Similarly, North Dakota Governor Jack Dalrymple recently signed into law the nation’s toughest abortion restrictions, forbidding abortion as soon as a fetal heartbeat is “detectable,” which can be as early as six weeks into a pregnancy, and effectively banning nearly all abortions in the state.[25] Meanwhile, Mississippi is on the brink of becoming the only state in the country without an abortion clinic.[26]

Judge Korman’s opinion in Tumino II is not only a much-needed step forward at a time when the reproductive rights movement is in crisis, but it also boldly questions the legitimacy of allowing politically-motivated officials to make decisions regarding a drug’s availability for reasons other than its safety and effectiveness.[27] And, just to be clear, Judge Korman is not simply pushing a liberal agenda: “[h]e clerked for a former Republican congressman, was appointed by Ronald Reagan and served in the Justice Department under President Richard M. Nixon.”[28] Rather, Judge Korman is taking a stand against allowing “politics [to triumph] over policy.”[29]

No matter how controversial the issue of reproductive rights is in America, citizens should have the right to access FDA-approved forms of contraception, such as Plan B. Regardless of whether they come from members of lobbying groups or agents of the Executive Office, personal and subjective opinions about the appropriate age at which one should have access to contraception should not affect what a citizen is legally allowed to do. And while some critics argue that Korman’s decision will encourage women to “be more cavalier and not use more reliable birth control” because they “may bypass birth control pills or IUDs altogether if they know this option is available to them,”[30] the fact of the matter remains that individuals have the right to decide independently what means of contraception they want to use and when. If there is a form of contraception like Plan B that is both FDA-approved and helps avoid unwanted pregnancy in an emergency situation, everyone in America who is sexually active, regardless of age, should have access to it. Judge Korman confirms that all Americans have the right to have this access in Tummino II.

Now, onto the next step: lowering the cost of emergency contraception like Plan B (and contraception geared toward the female body in general) so that all Americans can actually practice the right to reproductive self-determination, regardless of their socioeconomic standing.

Chelsea is currently a 2L at NYU School of Law. She is the Symposium Editor of the Review of Law & Social Change and Co-Chair and Treasurer of Law Students for Reproductive Justice.

[1] The Affordable Care Act is lowering the cost of contraception for women on some forms of birth control. See Patient Protection and Affordable Care Act, Pub.L. No. 111–148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010 (“HCERA”), Pub.L. No. 111–152, 124 Stat. 1029 (2010); U.S. Dep’t of Health & Human Services, Affordable Care Act Rules on Expanding Access to Preventive Services for Women, HealthCare.gov (last visited Apr. 28, 2013), http://www.healthcare.gov/news/factsheets/2011/08/womensprevention08012011a.html.

[2] Tummino v. Hamburg (Tummino II), No. 12-CV-763 (ERK) (VVP), 2013 WL 1348656, at *1 (E.D.N.Y. Apr. 4, 2013).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.at *32.

[8] Tummino v. Torti (Tummino I), 603 F. Supp. 2d 519 (E.D.N.Y. 2009), amended sub nom. Tummino v. Hamburg, No. 05-CV-366 (ERK) (VVP), 2013 WL 865851 (E.D.N.Y. Mar. 6, 2013).

[9]  Id. at 523 n.4.

[10] Id. at 549.

[11] See Food & Drug Admin., Updated FDA Action on Plan B (levonorgestrel) Tablets (Apr. 22, 2009), as cited in Tummino II at *4.

[12] Tummino II at *4.

[13] Pam Belluck, Judge Strikes Down Limits on Morning-After Pill, N.Y. Times (Apr. 5, 2013), http://www.nytimes.com/2013/04/06/health/judge-orders-fda-to-make-morning-after-pill-available-over-the-counter-for-all-ages.html.

[14 Tummino II at *6 (citing Barack H. Obama, President, Statement (Dec. 8, 2011), available at http://www.whitehouse.gov/the-press-office/2011/12/08/statement-president) (internal quotation marks omitted).

[15] Belluck, supra note 13; see Tummino II at *4 (“This case is not about the potential misuse of Plan B by 11-year-olds.”).

[16] Tummino II at *4.

[17] Id. at *26.

[18] Id. at *6–7; see also Delegations of Authority to the Commissioner of Food and Drugs, republished in FDA Staff Manual Guide § 1410.10, available at http://www.fda.gov/downloads/AboutFDA/ReportsManualsForms/StaffManualGuides/UCM273771.pdf.

[19] Gardiner Harris, White House and the FDA Often at Odds, N.Y. Times, Apr. 3, 2012 at A1.

[20] Id.

[21] Tummino II at *7.

[22] 410 U.S. 133 (1973).

[23] See Editorial, The Campaign to Outlaw Abortion, N.Y. Times (Mar. 29, 2013), http://www.nytimes.com/2013/03/30/opinion/the-campaign-to-outlaw-abortion.html; see generally S.B. 818, 89th Gen. Assemb., Reg. Sess. (Ark. 2013), available at http://www.arkleg.state.ar.us/assembly/2013/2013R/Bills/SB818.pdf; Arkansas: Bill Targeting Planned Parenthood Advances, N.Y. Times (Apr. 9, 2013), http://www.nytimes.com/2013/04/10/us/arkansas-bill-targeting-planned-parenthood-advances.html [hereinafter Bill Advances]; John Eligon & Erik Eckholm, New Laws Ban Most Abortions in North Dakota, N.Y. Times (Mar. 26, 2013), http://www.nytimes.com/2013/03/27/us/north-dakota-governor-signs-strict-abortion-limits.html.

[24] S.B. 818, supra note 23; Bill Advances, supra note 23.

[25]Eligon, supra note 23.

[26] Campbell Robertson, Judge Prevents Closing of Mississippi’s Sole Abortion Clinic, N.Y. Times (Apr. 15, 2013), http://www.nytimes.com/2013/04/16/us/ruling-prevents-closing-of-mississippis-only-abortion-clinic.html.

[27] Belluck, supra note 13.

[28] Rachel Weiner, Judge Criticizes Obama Administration in Plan B Decision, Wash. Post (Apr. 5, 2013), http://www.washingtonpost.com/blogs/post-politics/wp/2013/04/05/judge-attacks-obama-administration-in-fda-decision.

[29] Id.

[30] Loren Grush, Plan B Ruling: Doctors Divided Over Lifting Age Restrictions on Morning-After Pill, FOXNews.com (Apr. 5, 2013), http://www.foxnews.com/health/2013/04/05/plan-b-ruling-doctors-divided-over-lifting-age-restrictions-on-morning-after.

Why We Still Need the Voting Rights Act

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by Caitlin Naidoff

I spent Election Day 2012 in Pennsylvania, which was aptly described by media coverage as “ground zero for problems.” Reports recently submitted to the Senate Judiciary Committee accurately reflect what I observed in my own experience: signs and individuals falsely indicating that photo identification would be required, phone messages from unidentified callers directing voters to the incorrect polling locations, and the inexplicable absence of long-time voters from the rolls at polling sites where they had voted for the past 20 years. I also received reports that voters who had registered to vote through their welfare office were never added to the rolls.

It was clear that one major source of confusion was the state’s contested Voter ID law, which had been passed by the state legislature over the summer but was pre-empted by a preliminary injunction just weeks before the election. Judge Robert Simpson of the Commonwealth Court of Pennsylvania found that there was not enough time remaining to close the “gap between the photo IDs issued and the estimated need” and postponed further consideration or enforcement of the law until after the election. However, the court’s decision still allowed poll workers to ask for identification. As a result, I received calls from confused voters who, under the impression that they would not be allowed to vote, turned around and went home.

What impressed me most about my experience was the anger and shame expressed by rightful voters who were impeded by these practices. One of the plaintiffs in a class action suit challenging the Pennsylvania Voter ID law, Gloria Cuttino, explained “I’ve campaigned…I volunteer to do whatever I can to help because I think it’s important…I would really like to cast my opinion to make a difference, you know?…Why can’t I vote anymore? Why now?” Her comments illustrate the way in which identification requirements that effectively deny the right to vote are not just logistically problematic, but fundamentally offensive to dignity.

Proponents of identification requirements contend that the ease of obtaining identification should mitigate any concerns. This argument underestimates the diversity inherent in the American experience. Several of the plaintiffs in the Pennsylvania suit, for example, were delivered by midwives rather than in hospitals and were never able to obtain state identification because they did not have birth certificates. Additionally, for people who live in rural areas or have demanding work schedules, obtaining a so-called free identification card could be prohibitively costly.

A federal court highlighted these concerns when it struck down a similar law in Texas last summer, finding that the law would discriminate against minority voters, particularly those who are poor. The court heard the case as part of a preclearance procedure required by §5 of the Voting Rights Act, which requires jurisdictions with a history of discrimination to get approval from the federal government before amending their election procedures. Currently, nine states as a whole are subject to these restrictions, as are select counties and townships in seven other states.[1] The panel reviewing the Texas voter ID law denied preclearance because it found that “racial minorities in Texas are disproportionally likely to live in poverty” and the proposed law would “weigh more heavily on the poor.” The resulting retrogressive effect on minority voting, the court held, would impermissibly contravene the purposes of the Voting Rights Act.  If Texas were not required, by § 5, to go through this preclearance procedure, then it would have been able to enact this law without federal approval.

This February, the Supreme Court will reexamine the constitutionality of §5 of the Voting Rights Act. The plaintiff in the case, Shelby County, Alabama, argues that Congress exceeded its enforcement authority under the 14th and 15th Amendments when it reauthorized the Act in 2006. Primarily at-issue is the imposition of preclearance requirements on areas where fewer than 50 percent of minorities were registered to vote in 1972. It is important to note, however, that a jurisdiction subject to preclearance procedures under §5 is permitted to “bail out” of its requirements if it is able to demonstrate in front of a three-judge panel in the District Court for the District of Columbia that “for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations.”[2]  Additionally, the jurisdiction must show that it has engaged in efforts to eliminate intimidation of voters and present evidence of minority electoral participation.

Shelby County contends that its minority registration rates are currently above this threshold, and that the law is unconstitutionally arbitrary due to its reliance on outdated information. The District Court for Washington D.C. rejected the suggestion that Congress lacked sufficient evidence when it reauthorized the Act. In fact, the House Judiciary Committee developed “one of the most extensive legislative records” in its history, including 12,000 pages of testimony, documentary evidence, and statistical analyses. The court concluded that Congress responded to what it reasonably perceived to be a continuing history and pattern of unconstitutional conduct by covered jurisdictions, and that the reauthorization conformed to constitutional standards.

Still, the Supreme Court has indicated it may be sympathetic to Shelby County’s argument. In 2009, the Court heard a similar case and, while it declined to decide the merits of the constitutional issue, stated: “the evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by § 5 than it is nationwide.” Paradoxically, the effectiveness of the Voting Rights Act is being used to advocate for its demise.

The Court’s decision could have grave implications for the future of Voter ID laws in states, like Texas, that have been unable to demonstrate during preclearance procedures that identification requirements would not have a retrogressive effect on the “blight of racial discrimination in voting.”  In contrast, the Court’s decision would not directly impact the viability of voter ID laws in states like Pennsylvania, which is not a jurisdiction covered by the special provisions of the Voting Rights Act.

Based on my experience in Pennsylvania on Election Day, I would agree with Shelby County that that the legislature might benefit from ongoing data collection and analysis regarding current efforts to disenfranchise minority voters.  However, unlike Shelby County, I believe that a comprehensive analysis would suggest states should be subject to more rather than less restrictive oversight.  I do not mean to suggest that areas with longstanding history of racism should not be viewed with particularly close skepticism, or that current statistics should be prioritized over anecdotal evidence or documentation of historical trends. But the problems that I witnessed made clear to me that discriminatory voting practices take many forms and are not limited to the American south. Voter identification requirements are no less degrading to Gloria Cuttino simply because she sits in Pennsylvania.

The Supreme Court should uphold the protections offered by the Voting Rights Act, and leave to Congress the policy questions raised by new methods of disenfranchisement and discrimination.

Caitlin is a 2L at NYU, where she is a Staff Editor for the Review of Law and Social Change.

[1] Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia are covered in theirentirety. Select townships and counties are covered in California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.  See http://www.justice.gov/crt/about/vot/sec_5/covered.php.

The History of Voter Suppression and VRA’s Section 5 Today

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by Sean McMahon

The 2012 election cycle was rife with a new crop of voter suppression measures, designed to reduce the access of minorities, the poor, and limited-English speaking citizens to the polls. Despite these well-documented abuses of the electoral process, advocates have emerged arguing that disenfranchisement of minorities is no longer a major concern and that Section 5 of the Voting Rights Act – the federal government’s bulwark against disenfranchisement – is unconstitutional.

The Supreme Court will decide the fate of Section 5 in Shelby County v. Holder, a case brought by a district in Alabama asserting that Section 5′s requirements violate federalism and equal protection. Section 5 requires jurisdictions with a history of racial discrimination to obtain federal preclearance before changing any voting procedure or regulation. This places the burden on state and local governments that fall under the coverage of Section 5 to justify their new electoral procedures as nondiscriminatory.

In considering whether Section 5 is still necessary today, it is worth reflecting on why such a far-reaching measure was adopted originally. Civil rights leaders understood that limiting access to the polls – even with facially neutral laws – could have a grossly disproportionate impact on minority voters and effectively prevented their participation in the political process. Section 5 is designed to prevent such laws from going into effect and is a major reason the Voting Rights Act has been called “the most effective civil rights law ever enacted.”

Disenfranchisement from the Civil War to the Civil Rights Movement

Following the passage of the Fifteenth Amendment in 1870, all men “regardless of of race, color, or previous condition of servitude” were formally ensured the right to vote. Yet for nearly a century, people of color were disenfranchised via literacy tests, poll taxes, and grandfather clauses. Since generations of slavery and racial inequality rendered people of color far less wealthy and educated than whites, these facially neutral laws effectively disenfranchised many African Americans.

After the formation of the NAACP in 1909, African American leaders pursued a strategy to challenge restrictive voting laws. Despite notable victories in cases such as Guinn v. United States, 238 U.S. 347 (1915) (striking down a grandfather clause in Oklahoma and Maryland) and Smith v. Allwright, 321 U.S. 649 (1944) (striking down whites-only Democratic primaries), racist voter suppression was too pervasive to be defeated by individual lawsuits. Furthermore, it was sometimes difficult to prove the government enacted these laws with discriminatory intent, which was necessary to establish an equal protection violation. Compounding the NAACP’s struggle was the fact that a single case could take years to win.

As the Civil Rights Movement gained ground throughout the 1950s and early 1960s, white supremacist tactics evolved and became subtler. Some jurisdictions implemented new facially neutral voting tests purporting to measure understanding of the issues and the character of the voters. Due to longstanding systemic inequality in education and subjective evaluation of good character, these tests effectively barred African Americans from the polls. Incumbent white politicians further disempowered African American voters by gerrymandering voting districts to weaken the black vote and prevent the formation of majority-black districts. In order to halt this deliberate avoidance of the requirements of the Fifteenth Amendment, Congress enacted Section 5 of the Voting Rights Act to force state and local governments across the South to justify any new electoral rules and procedures.

Photograph of President Lyndon Johnson Signs t...

President Lyndon Johnson signs the Voting Rights Act as Martin Luther King, Jr. and other civil rights leaders look on. (Photo credit: The U.S. National Archives)

The Voting Rights Act to Today: Why Section 5 Is Still Needed to Protect Access to the Political Process

Congress renewed the Voting Rights Act in 1982 and again in 2006; both times, it noted the continued importance of Section 5 despite advancements in racial justice. Jurisdictions under Section 5 persist in proposing regulations that restrict minorities’ access to the polls. The number of Section 5 objections (regulations flagged by the Department of Justice as discriminatory) has declined since the 1960s, but the provision has not fallen into disuse. The Lawyers’ Committee’s National Commission on the Voting Rights Act found that between 1965 and 2004, over half of all objections were made after 1982. Surveying data from 1982 to 2004, the Commission found that out of 800 DOJ requests for more information from state and local governments regarding new rule proposals, 205 rule proposals were withdrawn. Columbia law professor Nathaniel Persily notes that this “gives a sense of how many dogs did not bark as a result of the threat of denial of preclearance.”

In this past election cycle, conservative politicians sought new voting rules in order to reduce Democratic voter turnout. Section 5 has been the strongest defense against voter suppression tactics. In the past year, Section 5 prevented the reduction of early-voting hours in some districts in Florida and blocked a voter ID law in Texas. The court that struck down the Texas ID law noted that the required documentation would be enormously burdensome to obtain, and would disproportionately affect minorities and the poor. Recently, federal judges used Section 5 to block a Texas redistricting plan that would have divided a population of African American and Latino voters into new, white-majority districts. Judge Thomas B. Griffith described it as a “deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.”

Jurisdictions under Section 5′s review have complained that it is burdensome and unfair since other jurisdictions do not need to submit to preclearance. However, it is possible to be released from Section 5 preclearance – a jurisdiction simply needs to refrain from proposing a discriminatory electoral law for ten years. Over seventy jurisdictions have successfully done so,and ten jurisdictions in the state of New Hampshire are currently in the process of being released from Section 5 review, which would make it the first entire state to leave Section 5 coverage – though a conservative advocacy group is attempting to block the release as part of a broader strategy to strike down Section 5 as unconstitutional.

Society has changed for the better in the past half-century, and the turnout of minority voters is on the rise. But the amelioration of a problem is not its eradication. Until full and equal participation for people of color in the political process can truly be guaranteed, Section 5 is necessary to enforce their political and civil rights.

Sean is a 2L at NYU and a Staff Editor on the Review of Law & Social Change.

Alleyne and the Future of Mandatory Minimums in the Federal Sentencing System

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by Joe Austin

On Monday, January 14, the Supreme Court will hear oral argument in Alleyne v. United States[1]. In Alleyne, the Court will reconsider whether the Sixth Amendment’s right to a jury trial requires that a jury, not a judge, find those facts that increase the minimum of a sentence.

The Facts in Alleyne

On September 7, 2010 a jury convicted Allen Ryan Alleyne of robbery and using a gun in the commission of a crime of violence. The jurors issued a special verdict finding that Alleyne used or carried a firearm in the commission of the robbery but, notably, had not “brandished” it.[2] Nevertheless, Alleyne is currently serving a seven-year mandatory minimum sentence for “brandishing” a gun.

The firearms statute under which Alleyne was convicted prescribes a five-year mandatory minimum sentence for using a gun in the commission of a crime of violence, including robbery. Brandishing a gun during such a crime, however, triggers a seven-year mandatory minimum sentence. Alleyne is currently serving the longer sentence for aspects of a crime that the jury specifically said he did not commit.

Despite the jury’s findings, the district judge found by a preponderance of the evidence that Alleyne had brandished a gun and sentenced him to the corresponding seven-year mandatory minimum. Citing the Supreme Court’s 2002 decision in Harris v. United States[3], the judge concluded that “brandishing” is a sentencing factor for a judge to determine, not an element of the underlying crime. Had this been considered an element of the crime, the prosecutor would have had to convince a jury, beyond a reasonable doubt, that the defendant “brandished” the weapon.  Instead, the prosecutor only had to convince the judge, under the lower burden of proof for judicial sentencing determinations, to secure the higher sentence.

Legal Landscape

In 2000, the Supreme Court issued a groundbreaking ruling in Apprendi v. New Jersey, holding that juries, not judges, must find “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum . . . .”[4] In Apprendi, the Court barred judicial fact-finding to raise the sentencing ceiling, but just two years later, in Harris, it declined to extend this rationale to cover raising the sentencing floor. In Harris, the Court considered the same firearms statute under which Alleyne was convicted and held that it was not unconstitutional for a judge to find a factor that raised the minimum sentence.

On Monday, the Court will hear arguments in Alleyne and consider whether to overturn Harris.  Justice Breyer, for one, may be willing to reconsider his opinion. He cast the crucial fifth vote in Harris, but conceded in a separate opinion that he “cannot easily distinguish Apprendi . . . from this case in terms of logic.” [5] Nonetheless, he demurred from extending Apprendi because he “[could not] yet accept its rule.” [6] Since Harris, though, Apprendi’s principle that juries must find the “facts that increase the prescribed range of penalties to which a criminal defendant is exposed”[7] has been affirmed in numerous cases.[8] Justice Breyer recognized as much in comments he made during an oral argument in 2010.[9]

Overturning Harris would increase doctrinal consistency and enhance the integrity and fairness of the federal sentencing system.[10]

Significance of Sentencing Minimums

While significant judicial attention has been paid to statutory maximum sentences, it is the minimums that have the greatest impact on the ground. Under some federal statutes prescribing mandatory minimums, the minimum serves as the presumptive penalty; the ceiling is rarely, if ever, reached.

The firearms statute under which Alleyne was charged is a case in point. In Harris, the Court assumed that this statute implied maximum terms of life imprisonment for using or carrying, brandishing, and discharging a gun. But the sentences that are actually imposed for this law hew closely to the enumerated mandatory minimums of five, seven, and ten years. [11] Thus Apprendi’s protection regarding statutory maximums means little. Harris allows an end-run around the jury requirement when applied to the much more salient mandatory minimum sentences.

Mandatory minimums are widely and rightly criticized for their harshness and their inconsistency with the goal of proportionality in punishment. Recent evidence shows that they exacerbate some of the very problems that sentencing reforms like guidelines systems were designed to curb, such as racial disparities in sentencing.  Overturning Harris and requiring that the facts triggering these minimums be proved to a jury would mitigate these harms.

Racial disparities

The reduction of sentencing disparities between defendants of different races was supposed to be one salutary effect of the uniformity that guidelines would bring to sentencing. But the U.S. Sentencing Commission found that despite black defendants making up 48% of those apparently eligible for charging under the firearms law in Alleyne, they actually represented 56% of those charged under the statute and 64% of those convicted under it.[12] Similar patterns exist for drug offenses carrying mandatory minimums.

Two recent empirical studies confirm these disturbing findings. Professors Sonja B. Starr and M. Marit Rehavi found that mandatory minimums were behind racial disparities in sentencing that persisted even after accounting for a host of factors including arrest offense, criminal history, and local crime rates.[13] Another study, by Professors Joshua B. Fischman and Max M. Schanzenbach, concludes that mandatory minimums are a driving cause of increased racial disparity observed in the federal sentencing system in the last five years.[14]

Overturning Harris would result in the imposition of fewer mandatory sentences, as only those whose necessary predicate facts could be proven by a reasonable doubt could be imposed. A reduction in the number of imposed mandatory minimums will in turn reduce differences in sentencing that owe to skin color instead of conduct and culpability.

Unchecked prosecutorial power

In theory, sentencing guidelines should produce sentences that reflect offense and offender characteristics, not the biases and preferences of criminal justice system actors. By reducing judges’ discretion, similar convicted defendants would be treated similarly. However, mandatory minimums do not eliminate sentencing discretion, but rather shift it to prosecutors while tying judges’ hands even when every factor except that one triggering a mandatory minimum suggests that a lower sentence would be appropriate. Moreover, allowing prosecutors to bypass juries removes another check on the extraordinary powers they are granted.

When these checks are removed, injustices can flourish. About the longer sentences black defendants received as compared to similarly situated whites, Starr and Rehavi conclude, “Initial charging is an important driver of these sentencing disparities—especially the decision to bring mandatory minimum charges.”[15]

Decreasing mandatory minimum sentences and allowing judges to consider every relevant factor—not one to the exclusion of all others—under the advisory guidelines can tamp down the differences produced by prosecutorial discretion. Fischman and Schanzenbach found that “judicial discretion likely reduces racial disparities” in this system,[16] while Starr and Rehavi similarly reported, “nothing in these data suggests that judges’ use of their post-Booker discretion exacerbated racial disparity.”

Further, when the exercise of a prosecutor’s discretion in the form of the initial charging decision can have such great impact at sentencing, putting a jury determination and heightened burden of proof between that discretion and the eventual sentence helps control this great power.

Conclusion

Mandatory minimums put prosecutors in the role of sentencers and increase pernicious race-based differences in sentencing. Requiring that juries determine the facts needed to impose such punishments will lessen these risks and reinvigorate public control of the judicial process. If the Court decides to overturn Harris it will deal a blow to the mandatory minimums that are behind some of the worst features of the federal sentencing regime.[17]

Joe is currently a 2L at NYU School of Law.  He is a Staff Editor on the Review of Law & Social Change.

[1] 457 Fed. Appx. 348 (4th Cir. 2011), cert. granted, 133 S. Ct. 420 (Oct. 5, 2012) (No. 11-9335).

[2] Alleyne was convicted of carrying and brandishing a weapon under a theory of complicity.  Alleyne was not accused of carrying the gun himself; instead, his accomplice, who was never identified or charged, was found to have done so. Under complicity theory, a perpetrator may be held legally accountable for the actions of his accomplice in the commission of the crime if he knew or should have known that such actions were likely to be taken.

[3] 536 U.S. 545 (2002).

[4] 530 U.S. 466, 490 (2000).

[5] 536 U.S. at 569 (Breyer, J., concurring).

[6] Id.

[7] 530 U.S. at 490.

[8] See, e.g., United States v. Booker, 543 U.S. 220 (2005) (finding the Federal Sentencing Guidelines unconstitutional for allowing judges to determine facts that increase a defendant’s guideline sentencing range); Southern Union Co. v. United States, 132 S. Ct. 2344 (2012) (extending Apprendi’s holding to the imposition of criminal fines).

[9] See Tr. of Oral Arg. at 20, United States v. O’Brien, 130 S. Ct. 2169 (2010) (No. 08-1569), http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1569.pdf (“[I]n Harris, I said that I thought Apprendi does cover mandatory minimums, but I don’t accept Apprendi. Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time.”) (statement of Justice Breyer).

[10] Alleyne’s secondary statutory argument, which could limit the extent to which a ruling in his favor would alter Harris, contends that the firearms statute creates three distinct offenses with respective fixed-term sentences of five, seven, and ten years. Thus, the statute – but not Harris’s constitutional holding – would run afoul of Apprendi because it allows the judge to increase the sentencing ceiling.

[11] See Harris, 536 U.S. at 578 (Thomas, J., dissenting) (“[T]he sentence imposed when a defendant is found only to have ‘carried’ a firearm ‘in relation to’ a drug trafficking offense appears to be, almost uniformly, if not invariably, five years. Similarly, those found to have brandished a firearm typically, if not always, are sentenced only to 7 years in prison while those found to have discharged a firearm are sentenced only to 10 years.”).

[12] U.S. Sentencing Comm’n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 90 (2004), available at http://www.ussc.gov/Research/Research_Projects/Miscellaneous/15_Year_Study/15_year_study_full.pdf.

[13] Sonja B. Starr & M. Marit Rehavi, Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker (Nov. 1, 2012), available at http://ssrn.com/abstract=2170148.

[14] Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).

[15] Starr & Rehavi, supra note 14, at 19.

[16] Fischman & Schanzenbach, supra note 15, at 730.

[17] Amicus curiae briefs submitted on Alleyne’s behalf by NYU School of Law’s Center on the Administration of Criminal Law and by the Sentencing Project and American Civil Liberties Union alerted me to the studies and reports cited in this article. Those briefs contain a more extensive discussion of those documents and of some of the arguments raised here.