Athena D. Mutua

Volume 27.1 (download PDF)

Abstract

The Dobbs decision has been leaked. Gathered outside of New York City’s St. Patrick’s Old Cathedral, pro-choice protesters chant: “Not the church, not the state, the people must decide their fate.” A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: “I am the people, I am the people, I am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you’re having my baby.”

Despicable but not unexpected, this man’s comments provide insight into the meaning of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and the conditions it creates for women, girls, and others capable of pregnancy. Despite the Supreme Court’s assertions that it is returning the decision of abortion back to “the people,” a disingenuous concept from the start, American society currently finds itself facing dueling judicial opinions about whether individuals can access abortion medication (mifepristone) to exercise control over their own bodies and lives. This Article is an exegesis of the statements of this man. His statements and the instincts that support them tell us a great deal about the condition of U.S. society, the state of our democracy, and the relationship of both to the concrete meaning of Dobbs and its “theory of life.” Continue reading →

Kimberly Fong

Volume 26.2 (download PDF)

Abstract

New York City will soon have the distinction of constructing one of the tallest jails—if not the tallest—in the world. The jail will be a new addition to New York City’s skyline at 295 feet tall, even taller than Chicago’s Metropolitan Correctional Center. As part of former Mayor Bill de Blasio’s plan to close Rikers Island as a detention center, this jail is part of the Borough-Based Jail Program intended to accommodate a smaller jail population in four smaller jails located in the Bronx, Manhattan, Brooklyn, and Queens. The impetus for closing Rikers came in part from increased concern that pretrial detention has a disproportionately harmful impact on Black and Latinx people. Former U.S. attorney Preet Bharara’s report on abuses of detainees by Rikers staff put the public on greater notice of the conditions at Rikers. High-profile deaths, such as Kalief Browder’s death by suicide after his three-year detention for allegedly stealing a backpack and Layleen Polanco’s death after suffering an epileptic seizure in solitary confinement, further put a spotlight on Rikers’s culture of abuse against detainees. Under this plan, the massive “mega jail” or “jailscraper” will replace the Manhattan Detention Complex in Manhattan’s historic Chinatown.

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Kyuwon Shim, Michelle David, and Susana Lorenzo-Giguere

Volume 26.2 (download PDF)

Abstract

Under Section 208 of the Voting Rights Act (“VRA”), any voter who is blind, disabled, or unable to read or write is entitled to assistance to vote by a person of the voter’s choice. Section 208 guarantees that such voter may choose a person they trust to assist them in navigating the voting process and cast a ballot, with only two limitations: To prevent financial influence on the voter’s ballot choices, the assistor cannot be the voter’s employer or union representative. In Texas, this law protects millions of limited-English proficient (“LEP”), disabled, and illiterate citizens. In 2015, the Asian American Legal Defense and Education Fund (“AALDEF”) filed suit against Texas under Section 208 of the VRA, challenging the state’s voter assistance laws. These laws prohibited interpreters from providing voter assistance if they were not registered to vote in the same county as the voter needing assistance. The laws also limited voter assistance solely to marking and reading the ballot; this limitation prohibited assistors from answering clarifying questions about the ballot or otherwise providing basic information about the voting process as a whole, information upon which many Asian Americans and voters who are LEP, disabled, or illiterate relied.

In 2017, the Fifth Circuit ruled on Texas’s appeal of AALDEF’s successful 2015 Section 208 challenge to Texas’s voter assistance laws. Preempting Texas’s county residence requirement for voter assistance, the Fifth Circuit also rejected Texas’s narrow interpretation that Section 208 assistance was only permissible for marking and reading the ballot. On remand, the district court permanently enjoined Texas from enforcing its voter assistance laws, among other forms of relief, that limited assistance to merely marking and reading the ballot. Three years later, in the wake of the 2020 election, Texas legislators enacted another broad set of voting restrictions through Senate Bill 1 (“S.B. 1”). Brazenly, S.B. 1 required assistors to take an oath limiting their assistance to merely marking and reading the ballot and used identical language from the Texas Election Code that the district court had enjoined in 2018. This Article delves into AALDEF’s 2022 success modifying the 2018 permanent injunction to strike down S.B. 1’s voter assistance restriction.

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Deema Nagib

Volume 26.2 (download PDF)

Abstract

The United States incarcerates approximately 2 million people on any given day, more than any other country in the world. Over the years, we’ve seen growing emphasis on the rights and human needs of the incarcerated. Specifically, there have been growing movements to end the use of solitary confinement; reduce or eliminate the costs of phone calls, visits, and other methods of communication; end prison slavery and implement living wages for incarcerated people; and increase opportunities for education and other meaningful programming. However, little emphasis has been placed on an incarcerated person’s right and ability to be sexual. A desire for sexual intimacy, like many other human needs, does not disappear with incarceration. People who are in prison should have the right to explore their sexuality and sexual intimacy with consenting partners, regardless of their incarceration. To ignore this is to ignore an integral part of incarcerated individuals’ humanity. This Article argues that incarcerated individuals do have a substantive due process right to have sex with a consenting partner, regardless of marital status, which stems from their fundamental right to make decisions regarding their bodily autonomy.

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Tracy Renee McCarter and Samah Sisay

Volume 26.2 (download PDF)

Abstract

In March 2020, Tracy McCarter defended her life during a domestic violence incident that resulted in the death of her husband. She was arrested and subsequently spent months at Rikers Island during the height of the COVID-19 pandemic after being charged with murder in the second degree by the Manhattan District Attorney’s Office. Tracy McCarter’s case is only one example of how the United States’ criminal legal system deems that certain individuals, particularly Black women, have no claim to self-defense. Discussing Tracy McCarter’s case and other cases of self-defense, this Article provides an overview of the limited applicability of self-defense for survivors of gender-based violence and critiques the level of discretion district attorneys have but often refuse to use in these cases. This Article explores the history of selective applicability of self-defense laws that often particularly fail and exclude Black women who protect themselves against gender-based violence. It argues that: (1) arrest, prosecution, and incarceration cause perpetual trauma and block the healing that survivors of gender-based violence need to rebuild their lives after abuse; and (2) district attorneys can reduce the unjust criminalization of survivors of gender-based violence who act in self-defense by using their discretion to drop charges or refuse to prosecute specific cases.

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