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Table Of Contents

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Reflections Of A Non-Abolitionist Admirer Of The Police Abolition Movement, Corey Stoughton

Washington and Lee Journal of Civil Rights and Social Justice

To acknowledge that the abolition movement made reform better is not to reduce the movement to that purpose. For the non-abolitionist, the end of reform is better policing. For the abolitionist, reform is at best “a strategy or tactic toward transformation,” meaning contesting and ultimately eliminating policing. These are not compatible visions. But even if the collaboration between holders of these visions is just a tactical alliance, it is a tactical alliance that is producing good results. Perhaps those good results will lay a foundation for abolition, or perhaps they will seed in abolitionists’ fertile imaginations a positive vision of …

Bivens And Beyond: Creating A Meaningful Remedy For Federal Prisoners In A Post-Boule Landscape, Hannah M. Wilk

Washington and Lee Journal of Civil Rights and Social Justice

For nearly 50 years, the Bivens action served as a vehicle to compensate individuals when their constitutional rights had been infringed on by a federal officer. Bivens actions operated as the federal equivalent of Section 1983 claims in state courts against state officers. But in June 2022, with a conservative majority in the U.S. Supreme Court, the Bivens framework was gutted by Egbert v. Boule. Boule held that if a Bivens claim is filed in a context that differs from the three previously accepted contexts (the Fourth, Fifth, and Eighth Amendments), the claim must fail, as Congress is better equipped …

Skirting The Fourth Amendment: How Law Enforcement Agencies Abuse Technology And Constitutional Exceptions To Surveille The Public, Matthew Lloyd

Washington and Lee Journal of Civil Rights and Social Justice

Existing Fourth Amendment law does not protect against law enforcement use of data gathered through the internet either by private companies who actively search their customer’s data and submit evidence of misconduct to law enforcement or from private companies who acquire the data on behalf of law enforcement. In an effort to pursue criminals, courts have permitted Fourth Amendment jurisprudence to develop in a manner that permits sweeping invasions of privacy without any probable cause through the private search doctrine or without any procedural protections through the third-party doctrine. It will require substantial judicial or legislative action to return the …

The Witch-Hunt For Spies - A Critique Of The China Initiative And National Security’S Outsized Influence In Equal Protection Analysis, Winni Zhang

Washington and Lee Journal of Civil Rights and Social Justice

The U.S. Government has increased its focus on Chinese espionage in the last decade in a randomized and unpredictable way. Primarily targeting Chinese scientists and academics, the “China Initiative” has resulted in widespread targeting of individuals based on their race, ethnicity, and national origin. The program was formally terminated and said to now be a part of a broader approach to nation-state threats. However, the outcomes and effect of the economic espionage charges in the last 15 years has greatly skewed towards prosecuting Chinese individuals irrespective of the name of the program. While protections typically exist in the law to …

Slavery.Ai, Emile Loza De Siles

Washington and Lee Journal of Civil Rights and Social Justice

The artificial intelligence market is swarming. Supercharged start-ups, global tech giants, and increasingly algorithmic governments target diverse use cases with new and stunningly innovative AI applications coming online every day. Where people are the computational subjects of those algorithmic machinations, however, there is no law, present or effective, to protect them against great and propagating harms. Consequently, people become data production units, the commoditized of the Data Industrial Complex and unfree, unpaid inputs to AI production.

This Article shares a new and provocative vision. It theorizes that unregulated AI systems and uses are giving rise to an emergent form of …

Colorblind And Color Mute: Words Unspoken In U.S. Supreme Court Oral Arguments, Chris Chambers Goodman

Washington and Lee Journal of Civil Rights and Social Justice

The U.S. Supreme Court holds oral arguments on 70 to 80 cases each year, with fewer than a dozen most years involving issues around race or ethnicity. When the salience of race is clear, Supreme Court observers would expect to hear racial terms used in the arguments by counsel, as well as in the Justice’s questions.

Surprisingly, this research study demonstrates that is not the case. These racial terms - such as color, discriminate, minority, race, and its various related terms like racial, racially, racist, as well as combinations like race-neutral, and race-blind - only sparsely appear in oral argument …

A Miscarriage Of Justice: How Femtech Apps And Fog Data Evade Fourth Amendment Privacy Protections, Rachel Silver

Washington and Lee Journal of Civil Rights and Social Justice

After the fall of Roe v. Wade, states across the country have enacted extreme abortion bans. Anti-abortion states, emboldened by their new, unrestricted power to regulate women’s bodies, are only broadening the scope of abortion prosecutions. And modern technology provides law enforcement with unprecedented access to women’s most intimate information, including, for example, their menstrual cycle, weight, body temperature, sexual activity, mood, medications, and pregnancy details. Fourth Amendment law fails to protect this sensitive information stored on femtech apps from government searches. In a largely unregulated private market, femtech apps sell health and location data to third parties like Fog …

Takings In Disguise: The Inequity Of Public Nuisance Receiverships In America’S Rust Belt, Anna Kennedy

Washington and Lee Journal of Civil Rights and Social Justice

Since they were created in the 1980s in Cleveland, Ohio, public nuisance receiverships have spread across the American Rust Belt. This Note critically analyzes the legal implications of public nuisance receiverships, which involve the intrusion onto private property for public purposes. Despite claims that these actions align with exceptions to due process or public nuisance principles, a deeper examination reveals their fundamental nature as government takings of private property. This Note dissects the legal framework within the context of the Fifth Amendment, debunking the applicability of the public nuisance exception, establishing that receiverships constitute takings, and highlighting conflicts with Anti-Kelo …

Editor's Note, Peyton Holahan

Washington and Lee Journal of Civil Rights and Social Justice

To commemorate the accomplishment of abolition and to look back at Virginia’s long and complicated history with the death penalty, the Journal of Civil Rights and Social Justice’s 2021–2022 Symposium titled Revoking Irrevocable Punishment centered around Virginia’s long, complex, and sorrowful path toward abolition. From February 10 to February 11 of 2021, the Journal organized and moderated seven panels that addressed various components of the death penalty discourse in Virginia, past and present.

The Court And Capital Punishment On Different Paths: Abolition In Waiting, Carol S. Steiker, Jordan M. Steiker

Washington and Lee Journal of Civil Rights and Social Justice

The American death penalty finds itself in an unusual position. On the ground, the practice is weaker than at any other time in our history. Eleven jurisdictions have abandoned the death penalty over the past fifteen years, almost doubling the number of states without the punishment (twenty-three). Executions have declined substantially, totaling twenty-five or fewer a year nationwide for the past six years, compared to an average of seventy-seven a year during the six-year span around the millennium (1997-2002). Most tellingly, death sentences have fallen off a cliff, with fewer the fifty death sentences a year nationwide over the past …

The Gross Injustices Of Capital Punishment: A Torturous Practice And Justice Thurgood Marshall’S Astute Appraisal Of The Death Penalty’S Cruelty, Discriminatory Use, And Unconstitutionality, John D. Bessler

Washington and Lee Journal of Civil Rights and Social Justice

Through the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. …

Does The Death Penalty Still Matter: Reflections Of A Death Row Lawyer, David I. Bruck

Washington and Lee Journal of Civil Rights and Social Justice

This talk was given by Professor David Bruck for the Frances Lewis Law Center at Washington and Lee University School of Law, April, 2002. It is a follow-up to “Does the Death Penalty Matter?,” given by Professor Bruck as the 1990 Ralph E. Shikes Lecture at Harvard Law School.

Religious Ministers And The Scope Of Their Rights To Non-Discrimination In Employment, R. George Wright

Washington and Lee Journal of Civil Rights and Social Justice

The First Amendment is currently thought to bar ministerial employees from any recourse against their religious employer under a wide variety of non-discrimination statutes and other forms of legal protection. The typical critique of this state of affairs seeks to narrow the class of persons who count as ministerial employees. This paper focuses instead on an important, and peculiar, aspect of the ministerial exception doctrine. At present, the law generally prohibits any recovery by ministerial employees for employment discrimination by their religious employer even where the employer’s reasons for the discrimination have nothing to do with any religious doctrine, belief, …

Bailing On Cash Bail: A Proposal To Restore Indigent Defendants’ Right To Due Process And Innocence Until Proven Guilty, Cydney Clark

Washington and Lee Journal of Civil Rights and Social Justice

The practice of cash bail in the United States is changing. For the past few decades, the cash bail system is abandoning pretrial release and shifting the burden to the defendant thereby abandoning innocence until proven guilty. Bail hearings are increasingly less individualized and discriminatory because of risk assessment tools and judicial discretion without requiring justification, leading to indigent defendants facing unprecedented detainment solely for not being able to afford bail, and thus, violating due process of law. This Note focuses on two 2021 decisions: the California Supreme Court’s decision in In re Humphrey, ruling to partially maintain cash bail, …

Do Not Touch My Data: Exploring A Disclosure-Based Framework To Address Data Access, Francis Morency

Washington and Lee Journal of Civil Rights and Social Justice

Companies have too much control over people’s information. In the data marketplace, companies package and sell individuals’ data, and these individuals have little to no bargaining power over the process. Companies may freely buy and sell people’s data in the private sector for targeted marketing and behavior manipulation. In the justice system, an unchecked data marketplace leaves black and brown communities vulnerable to serious data access issues caused by predictive sentencing, for example. Risk assessment algorithms in predictive sentencing rely on data on individuals and run all relevant data points to provide the likelihood that a defendant will recidivate low …

The Counterintuitive Court: How The Supreme Court’S Punitive Damages Jurisprudence Endangers Marginalized Communities, Anne Rodgers

Washington and Lee Journal of Civil Rights and Social Justice

Punitive damages are awarded in civil suits to deter intentionally reckless and grossly negligent behavior. The goal of punitive damages is to punish the tortfeasor and protect the public from future misconduct. However, the Supreme Court’s recent jurisprudence on punitive damages reflects a shift towards protecting businesses from what the Court perceives as an arbitrary taking under the Due Process Clause. This Note argues that these decisions are dangerous, especially for marginalized communities. This Note begins by defining punitive damages and common criticisms of punitive damages awards. This Note then discusses the role of the Supreme Court in reviewing punitive …

Removing White Hoods From The Blue Line: A Legislative Solution To White Supremacy In Law Enforcement, Hope Elizabeth Barnes

Washington and Lee Journal of Civil Rights and Social Justice

On May 25, 2020, George Floyd took his final breaths. His death at the hands of multiple Minneapolis police officers was recorded by witnesses and viewed by millions. The public response to Floyd’s death was immediate and powerful. Americans were demanding change on a greater scale than ever before. The problem with policing is not Derek Chauvin, or the Minneapolis Police Department, but rather with the very institution. White supremacy is alive and well in American policing. This Note begins by examining the historic connection between white supremacist groups and law enforcement agencies. This Note then evaluates existing standards of …

Policing The College Campus: History, Race, And Law, Vanessa Miller, Katheryn Russell-Brown

Washington and Lee Journal of Civil Rights and Social Justice

The structure, impact, and historical roots of campus policing on the American college campus receives little academic attention. In fact, campus policing is often overlooked in legal analyses and research studies, including its relationship to race. Campus policing and race deserves a critical assessment from legal scholars because race is fixed to the ways the criminal-legal system presents itself on campus. The racialized implications of policing on campus are rooted in historical social and legal contexts that still exist today. However, the lack of research on campus policing is not surprising. American colleges and universities have successfully marketed themselves as …

Table Of Contents

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Perils Of Privatization: Exploring The Side Effects Of Privatized Correctional Health Care In Favor Of A Public Delivery Model, Peyton Holahan

Washington and Lee Journal of Civil Rights and Social Justice

On July 16, 2020, Judge Roslyn Silver of the U.S. District Court for the District of Arizona set a trial between Arizona’s Department of Corrections and a class of Arizona’s prisoners alleging grossly inadequate health care in the state’s prison system. Arizona, like more than half of the states in the U.S., has outsourced prison health care to private correctional healthcare providers. While correctional healthcare providers win states over with promises of cost-effective care and limited liability, ever since the emergence of the correctional healthcare industry in the 1970s, problems with privatized health care in jails and prisons have persisted, …

Behind The Screen: Examining The Human Consequences And Constitutional Ramifications Of The Virtual Criminal Defendant, Mallory Kostroff

Washington and Lee Journal of Civil Rights and Social Justice

Defendants are waiting behind a screen to learn their fate in their criminal proceedings. This Note sounds the alarm that having incarcerated defendants appear virtually for their criminal proceedings will lead the criminal justice system further down a path of mass incarceration and destruction. This Note demonstrates and argues that there are no benefits for having an incarcerated defendant appear virtually because there are no real benefits to the defendant themselves. Courts further try to argue that video appearances are efficient as they save time and money but as this Note shows those arguments are misleading and miss the point …

High Anxiety: Racism, The Law, And Legal Education, Elayne E. Greenberg

Washington and Lee Journal of Civil Rights and Social Justice

Conspicuously absent from the United States’ ongoing discourse about its racist history is a more honest discussion about the individual and personal stressors that are evoked in people when they talk about racism. What if they got it wrong? The fear of being cancelled -- the public shaming for remarks that are deemed racist -- has had a chilling effect on having meaningful conversations about racism. What lost opportunities!

This paper moves this discussion into the law school context. How might law schools rethink their law school curricula to more accurately represent the role systemic racism has played in shaping …

Certain Prosecutors: Geographical Arbitrariness, Unusualness, & The Abolition Of Virginia’S Death Penalty, Bernadette M. Donovan

Washington and Lee Journal of Civil Rights and Social Justice

Virginia’s abolition of the death penalty in 2021 was a historic development. As both a southern state and one of the country’s most active death penalty jurisdictions, Virginia’s transition away from capital punishment represented an important shift in the national landscape. This article considers whether that shift has any constitutional significance, focusing on the effect of Virginia’s abolition on the geographical arbitrariness of the country’s death penalty.

As a starting point, the death penalty in America is primarily regulated by the Eighth Amendment, which bars “cruel and unusual punishments.” The United States Supreme Court has held that the death penalty …

Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle

Washington and Lee Journal of Civil Rights and Social Justice

Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, …

It Just Makes Sense: An Argument For A Uniform Objective Standard For Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983, Pearce Thomson Embrey

Washington and Lee Journal of Civil Rights and Social Justice

In July 2020, the New York Times published an article on a Department of Justice report detailing the systematic abuse of incarcerated individuals by prison guards within the State of Alabama’s Department of Corrections. This report evidences the challenges faced by incarcerated individuals seeking to vindicate their Eighth Amendment rights. In a legal sense, those individuals who turn to the court system for relief face an almost insurmountable burden of proof. This Note begins by surveying the history of excessive force claims under the Fourth, Eighth, and Fourteenth Amendments, as well as deliberate indifference claims under the Eighth and Fourteenth …

Revisiting The Ox-Bow Incident: The Almost Forgotten Western Classic About The Lynching Of Three Innocent Men Is As Relevant As Ever, Marc Bookman

Washington and Lee Journal of Civil Rights and Social Justice

The concept of lynching, several hundred years old and unclear in its origins, has never really left the lexicon. The word itself, however, has taken on different meanings over the years, from a mob’s taking the law into its own hands, to an organized utilization of racial violence as a means of societal control and intimidation; and finally to the more casual and defensive use of the word (“high tech lynching”) by current Supreme Court justices Thomas and Kavanaugh and others after being questioned about their past behaviors. Many academics have opined that the modern system of capital punishment is …

Reproductive Privacy In The World: Critical Examination Of June Medical Services, L.L.C. V. Russo And Buck V. Bell, Kumiko Kitaoka

Washington and Lee Journal of Civil Rights and Social Justice

Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.

Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection …

Senseless Sentencing: The Uneven Application Of The Career Offender Guidelines, Christopher Ethan Watts

Washington and Lee Journal of Civil Rights and Social Justice

Federal appellate courts are currently split on the definition of “controlled substance” in the career offender guideline, with one side using federal law to define the phrase, and the other side allowing standalone state law offenses to trigger the guideline. Allowing state law to define the phrase allows countless substances Congress never intended to penalize to be able to trigger one of the most severe penalties in the Sentencing Guidelines. This Note assesses the landscape of the circuit split and analyzes the arguments for and against federally defining “controlled substance offense.” This Note then proposes a novel way to resolve …

As Fires Blaze Through California, Could They Blaze A New Path For Incarcerated Individuals: A Model For Back-End Abolition, Jacquelyn Kelsey Arnold

Washington and Lee Journal of Civil Rights and Social Justice

This Note provides a critique on the current system of prison labor through the lens of the California wildfires and the lack of inmate labor due to early release in the wake of COVID-19. This Note provides an overview of the relevant history of the Thirteenth Amendment, contextualizes mass incarceration as a product of the “War on Drugs” in the United States, and consequently, discusses the significant and dramatic expansion of the prison industrial complex and the use of prison labor as a growing source of production labor. It concludes with a recommendation for a provisional back-end abolition model that …