November 19, 2018

How Professor Imwinkelried and I 'reversed' 28 50-year-old convictions last week

By Gabriel J. Chin

Often, the most essential part of lawyering is not brilliant legal analysis, factual investigation, or even winning the case.  Instead, the outcome turns on mundane details such as, say, collecting a judgment, or getting your client out on bail. That lesson was vividly driven home for me last week when I was reading Knight v. State, 161 So.2d 521 (Miss. 1964), a unanimous affirmance by the Mississippi Supreme Court of Freedom Rider Edythe Pauline Knight’s conviction for disturbing the peace after she had been ordered out of the “whites only” section of the Jackson, Mississippi bus terminal.  Based on its clean history on Westlaw, I’ve cited the decision a number of times in my scholarship, in part because of the court’s finding that for many, belief in segregation is “as deep or deeper than religion itself.” But I chanced to browse some other decisions citing the case, and noticed that Justice Douglas in his dissent in City of Greenwood, Mississippi v. Peacock, 384 U.S. 808 (1966), said that Knight had been reversed in Thomas v. Mississippi, 380 U.S. 524 (1965). 

The opinion in Thomas, a per curiam reversal, does not itself mention Knight; the text claims to reverse only Thomas’s case.  But Mabie Law Library reference librarians Peg Durkin and Kristin Brandt obtained the Supreme Court papers in Thomas and, lo and behold, the certiorari petition in Thomas was filed on behalf of Thomas, Knight and 27 other individuals, each convicted in separate cases. 28 cases shown as good law had actually been reversed, but that fact slipped through the cracks of the legal system.

I raised this issue with Professor Ed Inwinkelried, who is technically retired but seems to come to the office every day. As the author of many books and treatises, I suspected he would have contacts with Westlaw. Indeed he did, and when he brought it to the attention of the right editor, Westlaw immediately updated the status of all of the cases. Over fifty years after the fact, Knight and 27 companion cases are now shown as reversed by Thomas, including the conviction of Congress of Racial Equality founder James L. Farmer, who would later receive the Presidential Medal of Freedom.

Of course, these 28 individuals knew their convictions had been reversed in 1965, and now the historical record has been corrected. But there are still consequences. Not just scholars, but also courts and other authorities treated these decisions as valid. As high court decisions, they were influential, and have been cited by other Mississippi courts and administrative authorities, such as attorney general opinions. It would be very difficult to determine the impact of these cases on the development of the law, but is nearly certain that they would not have been cited if it had been clear that they had been reversed.


November 2, 2018

Trump is not above the law

By Kevin R. Johnson

[Cross-posted from the Daily Journal]

Earlier this week President Donald Trump called to abolish birthright citizenship, which few reputable scholars believe would be constitutional. This latest action on immigration demonstrates what is becoming more and more apparent: Trump does not feel bound to the rule of law. His immigration initiatives share two fundamental characteristics. First, he seeks to reduce immigration and specifically to reduce the number of immigrants of color coming to, and living in, the United States. Second, despite the frequent claim that the administration is committed to simply enforcing the immigration laws, he attacks judges that issue rulings that he does not like, calls for changes to our immigration laws that he calls ridiculous, and all-too-often ignores laws with which he disagrees.

In 1965, Congress amended the immigration laws to explicitly prohibit discrimination in the issuance of visas on the basis of "race, sex, nationality, place of birth, or place of residence." Passed on the heels of the Civil Rights Act of 1964, the 1965 amendment repealed laws mandating racial and national origin discrimination in the U.S. immigration laws. In so doing, Congress established a blueprint for immigration diversity, allowing millions of people of color to immigrate to the United States. The trajectory toward a more diverse nation, however, is likely to change due to a myriad of policies embraced by the Trump administration that can be aptly characterized as waging war on immigration diversity and the rule of law.

Trump's racial goals should not be surprising. Unlike any president in modern U.S. history, he regularly makes racially explosive comments about Mexicans as "rapists" and "criminals," Salvadorans as MS-13 gang members, Muslims as "terrorists," and El Salvador, Haiti, and nations in Africa as "s***hole countries." Trump has followed up on the incendiary rhetoric with a number of policies -- many of them in tension with the law -- that aim to restrict noncitizens of color from immigrating to the United States.

Consider a few of the Trump administration policies that emphatically demonstrate the President's desire to restrict immigration diversity and, in many instances, have been found to be unlawful.

First, within days of his inauguration, Trump issued an executive order that was intended to bar immigrants from a number of predominantly Muslim nations from entering the United States. When the first ban was enjoined, another one followed. The second version was struck down by the courts, in no small part because of the failure to comply with the law and because of the President's own venomous anti-Muslim statements. Although the third draft of the Muslim ban was upheld on national security grounds by the Supreme Court in Trump v. Hawaii, four justices found that it was motivated by anti-Muslim animus.

Second, Trump has called for ending "chain migration" by restricting family-based immigration to the United States. He also has expressed support for the RAISE Act, which would reduce legal immigration by one-half through reducing family-based immigration, primarily impacting people from Mexico, India and China. Those nations today send the most immigrants to the United States.

The Trump administration also has sought to restrict legal immigration with a recent proposed rule that would tighten the "public charge" exclusion, which has resulted in many immigrants declining to seek public benefits to which they are lawfully entitled.

Third, the Trump administration's "zero tolerance" policies have been enthusiastically directed at migrants from Mexico and Central America. In response to Central Americans seeking asylum, the Trump administration adopted a harsh detention and family separation policy, blaming it on the Democrats and the courts. A public outcry and persistent litigation compelled the Trump administration to end family separation. Now we see similar rhetoric being used against asylum seekers from Central America -- known as the "migrant caravan" -- who are currently in route to the U.S. border.

Courts have played important roles in stopping the administration from engaging in racially charged policies designed to stop Latino families from immigrating to the United States. In particular, the courts have upheld the rights of immigrant children subject to detention under what is known as the Flores settlement, which the Clinton Justice Department agreed to comply with in the detention of minors. The administration continues to resist this legal precedent. It has proposed to undo the Flores settlement so that the administration can detain immigrant children and their families indefinitely.

The Trump administration has challenged "sanctuary" states and cities for refusing to fully cooperate with the U.S. government. Although blocked by the courts, the administration has tried to halt federal funding from going to "sanctuary" cities.

In addition, the Trump administration has sought to eliminate the Deferred Action for Childhood Arrivals, aka DACA, policy for undocumented youth. The policy benefited hundreds of thousands of young undocumented immigrants, with an especially large percentage from Mexico and Central America. Courts have enjoined the rescission of DACA.

The Trump administration announced the end of Temporary Protected Status for Haitians, Salvadorans, Nicaraguans, and nationals of other developing nations. Litigation has challenged those actions.

The Trump administration has aggressively increased removals and adopted approaches that would ensure that more than 95 percent of the noncitizens removed are from Mexico and Central America.

Collectively, these policies would significantly reduce diversity in the number of immigrants admitted to permanently reside in the United States each year. Importantly, such policies violate the spirit if not the letter of the 1965 amendment to the immigration laws and Congress's goal of promoting diversity in immigration law.

Courts time and again have prohibited the Trump administration from pursuing immigration policies that violate the law. Legal and political attention must continue to be paid to these policies in order to prevent the country from returning to its pre-1965 immigration law policy of establishing a white nation. The unlawful war on immigrant diversity should not be permitted to continue.