Columbia Undergraduate Law Review: Summer 2020 Journal

COLUMBIA UNDERGRADUATE LAW REVIEW Volume XVI

Summer 2020

Issue III

ARTICLES

Implications of Jones v DeSantis and the Modern-Day Poll Tax Freedom from Fear: Liberty and Gendered Violence

Olivia Choi

Sarah Lu

COLUMBIA UNDERGRADUATE LAW REVIEW VOLUME XVI | ISSUE III | Summer 2020 Editors-in-Chief Zain Athar Sonia Mahajan Executive Editor, Print Matthew Sidler

Publisher David Jung

Executive Editors, Online Jake Gray Abhishek Hariharan

Business Director Danielle Mikaelian Communications Director Claire Choi Lead Editors Kay Barber Natalia Vasylyk Editorial Staff Samuel Braun Isabel Coberly Gabriel Fernandez Jeannie Ren Emma Schartz Anushka Thorat Jack Walker April Wang Sarah Wang Simon Yang

Copyright © 2020 Columbia Undergraduate Law Review

LETTER FROM THE EXECUTIVE EDITOR

Dear Reader,

On behalf of the Editorial Board, I am proud to present the Summer 2020 issue of the Columbia Undergraduate Law Review’s print journal.

This issue marks the inaugural year of CULR’s Print Summer Publishing Program, which seeks to publish works by current CULR print members and alumni. Our summer editing staff is composed of dedicated freshmen eager to get involved in the Columbia community. We are excited to publish the following articles, which offer fresh perspectives on current legal problems.

In her article “Implications of Jones v DeSantis and the ModernDay Poll Tax,” Olivia Choi explores the recent ruling in Jones v DeSantis, which struck down legal financial obligation disenfranchisement as an unlawful poll tax. She argues that the Jones ruling will shape voting rights across the nation for decades to come. With the November 2020 election rapidly approaching, Choi asserts that Jones’ progression through the appellate process is especially urgent as hundreds of thousands of votes are held in the balance.

In “Freedom from Fear: Liberty and Gendered Violence,” Sarah Lu investigates the role of the state in enabling gendered violence.

Analyzing feminist responses to Isaiah Berlin’s conceptions of liberty, Lu finds that cases including DeShaney v Winnebago County and Town of Castle Rock v Jessica Gonzales prioritize a negative conception of liberty.

Lu argues, however, that we need to critically question the concept of liberty to endeavor toward gender justice.

With each successive publication, the Columbia Undergraduate Law Review strives to cultivate debate and discussion of legal issues, especially among undergraduates. We hope that you enjoy reading our print journal.

Sincerely, Matthew Sidler Executive Editor, Print

MISSION STATEMENT The goal of the Columbia Undergraduate Law Review is to provide Columbia University, and the public, with an opportunity for the discussion of law-related ideas and the publication of undergraduate legal scholarship. It is our mission to enrich the academic life of our undergraduate community by providing a forum where intellectual debate, augmented by scholarly research, can flourish. To accomplish this, it is essential that we: i) Provide the necessary resources by which all undergraduate students who are interested in scholarly debate can express their views in an outlet that reaches the Columbia community. ii) Be an organization that uplifts each of its individual members through communal support. Our editorial process is collaborative and encourages all members to explore the fullest extent of their ideas in writing. iii) Encourage submissions of articles, research papers, and essays that embrace a wide range of topics and viewpoints related to the field of law. When appropriate, interesting diversions into related fields such as sociology, economics, philosophy, history, and political science will also be considered. iv) Uphold the spirit of intellectual discourse, scholarly research, and academic integrity in the finest traditions of our alma mater, Columbia University.

SUBMISSIONS The submissions of articles must adhere to the following guidelines: i) All work must be original. ii) We will consider submissions of any length. Quantity is never a substitute for quality. iii) All work must include a title and author biography (including name, college, year of graduation, and major). iv) We accept articles on a continuing basis.

Please send inquiries to culreboard@columbia.edu and visit our website at www.culawreview.org.

TABLE OF CONTENTS

Implications of Jones v DeSantis and the Modern-Day Poll Tax Olivia Choi

Freedom from Fear: Liberty and Gendered Violence Sarah Lu

1

22

COLUMBIA UNDERGRADUATE LAW REVIEW

Implications of Jones v DeSantis and the Modern-Day Poll Tax Olivia Choi | Columbia University Edited By: Natalia Vasylyk, Samuel Braun, Jeannie Ren, Emma Schartz, April Wang, Simon Yang

Abstract Pursuant to the 1974 U.S. Supreme Court ruling in Richardson v Ramirez, the practice of criminal disenfranchisement, lamentably, remains wholly legal in the United States. States across the country continue to deprive millions of men and women of their democratic right to vote as a penalty for past criminal convictions. However, perhaps an even more pernicious force is the de facto disenfranchisement of felons in states that allow for the restoration of voting rights. Various structural barriers and misinformation attempts frustrate eligible felons’ access to the franchise in both implicit and explicit manners. One of the most overtly discriminatory forms is the requisite payment of all legal financial obligations (LFOs) before restoration of voting rights, a practice that unjustly disadvantages low-income and predominantly minority citizens long after their sentences have been served.

Nonetheless, this practice amounts to nothing less than a modern-day poll tax, an unlawful tool expressly employed to disenfranchise low-income men and women of color. While long-standing legal precedent has preserved LFO precondition statutes, the May 2020 Florida federal district court decision in Jones v DeSantis, which struck down an existing Florida law, bears striking implications for future cases. Ruling the LFO disenfranchisement law to be an unlawful poll tax in violation of the Twenty-Fourth Amendment, Jones broke through years of failed attempts to overturn LFO laws and a longstanding silence regarding legal usage of the Twenty-Fourth Amendment.

As the case makes its way through the appellate process alongside the countdown to a contentious November 2020 election, the fate of Jones bears the weight of the 750,000 Florida voters to be disenfranchised, as well as the fates of similar LFO laws in adjacent jurisdictions.

1

COLUMBIA UNDERGRADUATE LAW REVIEW I. Introduction and Background

Contrary to popular misconception, American citizens do not possess a constitutionally guaranteed right to vote. While certain protections, such as the Fifteenth and the Nineteenth Amendments, may outlaw discriminatory disenfranchisement on the basis of race and sex, nowhere in the Constitution or any federally binding statute is there a guarantee of every citizen’s right to political franchise.1 Primarily among excluded classes are individuals convicted of criminal offenses, who have historically been disbarred from voting and continue to be disenfranchised in both explicit and implicit manners across the country. While many states have taken measures to restore and protect felon voting rights, the disenfranchisement of formerly incarcerated individuals remains entirely legal at the federal level.

The basis of nearly all modern criminal disenfranchisement law rests chiefly upon the 1974 ruling in Richardson v Ramirez.

After three individual felons (who had served out their respective sentences and paroles) were barred from registering to vote in the state of California, they brought a class action suit against California’s Secretary of State, arguing that statutes disenfranchising ex-convicts violated the Equal Protection Clause of the Fourteenth Amendment.

While the California Supreme Court ruled in the plaintiffs favor, on appeal, the U.S. Supreme Court reversed the ruling. In the landmark decision, the U.S. Supreme Court held that convicted felons possess no constitutional right to the franchise.2 Justice William Rehnquist, writing for the majority, cited the language in Section 2 of the Fourteenth Amendment, which states that a state’s congressional representation shall be diminished if the state is found to abridge its citizens’ right to vote on any grounds “except for participation in rebellion, or other crime.”3 By this logic, maintained Rehnquist in the 6-3 ruling, individuals convicted of a crime fundamentally possess no right to vote; thus, this privilege may not be infringed upon as it was never granted. Since then, Richardson has been cited as the legal 2

COLUMBIA UNDERGRADUATE LAW REVIEW precedent to indicate that felons are precluded from any constitutional protections prohibiting encroachment upon voting rights.

Ironically, the Court’s highly textual interpretation is entirely antithetical to the original intent of Section 2 of the Fourteenth Amendment. At the time of the Amendment’s ratification, Section 2 was instituted primarily to protect African American voters from encroachment by former Confederate states out of compliance with federal law.4 As Justice Marshall described in his dissenting opinion:

The historical purpose for § 2 itself is, however, relatively clear and, in my view, dispositive of this case…It is clear that § 2 was not intended and should not be construed to be a limitation on the other sections of the Fourteenth Amendment.

Section 2 provides a special remedy—reduced representation—to cure a particular form of electoral abuse—the disenfranchisement of Negroes. There is no indication that the framers of the provisions intended that special penalty to be the exclusive remedy for all forms of electoral discrimination.5

Nonetheless, as a result of the Court’s interpretation in Richardson, Section 2 has been presented as an ostensibly racialneutral provision used to deny voting rights to incarcerated—and predominantly African American—individuals. The reality is that there is indeed nothing neutral about the American criminal justice system, as it disproportionately causes injury to low-income men and women of color. Today, national averages find Black men and women are incarcerated at rates 5.1 times that of whites.6 80 percent of prisoners qualify for indigent legal services.7 In light of these facts, it would be remiss to overlook the prejudicial disproportionality among the 6.1 million Americans currently stripped of voting rights 3

COLUMBIA UNDERGRADUATE LAW REVIEW due to prior felony convictions.8 While post-conviction voting rights restoration has become common practice in some states, forty-eight states and the District of Columbia continue to maintain some form of restriction on that restoration.9 II. Legal Financial Obligations and the Modern-Day Poll Tax In the states which grant felony voting rights restoration, the right to the franchise continues to be unjustly withheld on the basis of wealth. Many states currently employ laws requiring felons to pay off all outstanding legal financial obligations prior to the restoration of their voting rights. In 2019, at least thirty states maintained LFO laws disenfranchising formerly incarcerated individuals on the basis of this outstanding carceral debt.10 For indigent felons released from prison, these financial obligations—which range from $1,000 to tens of thousands of dollars—may in practice disenfranchise felons for the duration of their lifetimes.11 Criminal records radically diminish employment prospects post-conviction, as criminal background checks are a routine employment practice and states across the country maintain more than 13,000 documented licensing restrictions for individuals with a criminal record.12 Indeed, while federal laws prohibit discrimination on the basis of criminal history, applicants with a criminal record are 50 percent less likely to receive a callback or job offer than those without. When broken down by race, this number surges to 60 percent for Black applicants and reaches just 30 percent for whites.13 Given the preexisting indigency of many incarcerated individuals and the fact that prior criminal convictions pose a primary barrier to employment, outstanding carceral debt proves impossible for many felons to repay.

Legal financial obligations primarily take three forms: restitution, fines, and fees. Restitution is a court-ordered sum required to compensate crime victims for their monetary loss as 4

COLUMBIA UNDERGRADUATE LAW REVIEW in the case of robbery or destruction of goods. Fines are monetary penalties which serve an expressly punitive purpose. Finally, fees, perhaps the most unjust of such expenses, are costs incurred by criminal defendants for their use of resources as custody of the state: probation supervision fees, attorney fees, costs of incarceration, and court costs.14 Upon release, fees effectively require indigent felons to pay for their own incarceration, costs which may reach tens of thousands of dollars. Failure to do so strips them of their most fundamental democratic right.15 The withholding of this right solely based upon an inability to pay restitution, fines, and fees amounts to nothing less than a modern-day poll tax. The ratification of the Twenty-Fourth Amendment in 1964 may have outlawed poll taxes, but the notion that access to the franchise may be contingent upon wealth continues to be pervasive across the United States.

States codify wealth-based disenfranchisement by both explicit and implicit mechanisms. Of the thirty states that engage in LFO disenfranchisement, seven states explicitly disenfranchise indigent voters by statutorily requiring payment of outstanding LFOs as a precondition to voting. Alabama, Arizona, Arkansas, Tennessee, Georgia, Connecticut, Washington, and, until recently, Florida currently maintain laws proscribing this form of overt wealth-based disenfranchisement.16 While other states may not include this language in existing statute, they do require completion of probation or parole prior to restoration of voting rights and LFO payment as a condition of that completion.17 In Mississippi, for example, failure to pay monthly obligations can result in a loss of earned time credits requisite to completion of parole, and Mississippi trial courts possess broad authority to terminate probation early or extend its term.18 Additionally, in Iowa and Kentucky, voting rights may only be restored through executive clemency, which requires an application for pardon by the governor or president of the United States. Payment of all fines, fees, and restitution are a prerequisite to this pardon.19 5

COLUMBIA UNDERGRADUATE LAW REVIEW Regardless of method, the tangible repercussions of these policies, in practice, are identical: disproportionate disenfranchisement of indigent African American individuals who have in every other manner served out the terms of their sentence. The Campaign Legal Center estimates that currently 10 million individuals in the United States owe a sum of greater than $50 billion in fines and fees related to criminal convictions.20 The vast majority of these states require completion of parole and probation before voting rights restoration but include legal debt as a condition of that parole or probation.21 III. The Poll Tax, Equal Protections, and “The Silent Amendment” The prejudicial nature of Legal Financial Obligations may only be understood within the context of the intrinsically racialized and discriminatory history of poll taxes. After the Fifteenth Amendment secured African Americans’ right to vote in 1870, Southern states took swift measures to suppress and effectively eliminate the Black vote. In addition to rampant lynching, statesanctioned forms of voter suppression ensued. Literacy tests, grandfather clauses, and other forms of legal disenfranchisement became commonplace. Chiefly among such weapons of choice was the poll tax, a requisite voting fee as small as one or two dollars that was nonetheless insurmountable for countless low-income citizens of color. By 1904, every former Confederate state had established a poll tax.22 In Louisiana, poll taxes nearly eliminated the Black vote, slashing the number of registered Black voters from 130,000 in 1896 to 1,340 in 1904, post-poll tax.23 In 1964, the ratification of the Twenty-Fourth Amendment sought to end this profoundly prejudicial practice, prohibiting the use of poll taxes in federal elections. As the Amendment states: The right of citizens of the United States to vote in 6

COLUMBIA UNDERGRADUATE LAW REVIEW any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.24 Given that all formal state-sanctioned poll taxes have been deemed unlawful for decades, the Twenty-Fourth Amendment today initially appears to possess limited application. Since its ratification, the Supreme Court has directly interpreted the Twenty-Fourth Amendment only once in legal history, thus earning its designation as “the forgotten amendment” among legal scholars.25 In the 1965 case Harman v Forssenius, the Court struck down a Virginia state-level poll tax, thus extending the reach of the Amendment’s prohibition to local elections.26 Despite its seemingly limited utility, Harman bears salience with regard to future application of the Twenty-Fourth Amendment.

A critical pillar of Harman is its distinction that the intent of the Twenty-Fourth Amendment is not merely wealth-based but inherently racialized as well. Writing for the majority, Chief Justice Earl Warren ruled the Virginia tax unconstitutional not merely upon its intent to discriminate on the basis of wealth, but because “[t]he Virginia poll tax was born of a desire to disenfranchise the Negro.”27 In support, Justice Warren noted the brazen candor of legislators at the Virginia Constitutional Convention of 1902, where the tax was born. In the legislators’ words: Discrimination! Why, that is precisely what we propose; that, exactly, is what this Convention was elected for—to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination 7

COLUMBIA UNDERGRADUATE LAW REVIEW of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.28 Thus, the Court established that the discriminatory intent of the poll tax—both racial and financial—together constitute the unlawful practice barred by the Twenty-Fourth Amendment.

However, what is perhaps the most critical component of Harman’s ruling is the considerable space it allows for future interpretation of what form such an unlawful “tax” may take. Indeed, as the Court stipulates, not only are statutorily explicit poll taxes unconstitutional, but, “no equivalent or milder substitute may be imposed.”29 Harman thus established to a broad degree that wealth is in no manner germane to voting qualifications. “Any material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the U.S. Const. amend. 24 and must fall under its ban,” wrote Justice Warren.30 It is this critical distinction which bears salience long after explicitly codified Jim-Crow-era poll taxes have been eliminated at both the state and federal level. Given the capacious language of the ruling in Harman, it remains enigmatic why the Twenty-Fourth Amendment fails to attract further application in legal discourse.

While it appears the Twenty-Fourth Amendment may have fallen out of favor, poll tax claims have additionally been brought forward under the Equal Protection Clause of the Fourteenth Amendment, which reads: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.31 8

COLUMBIA UNDERGRADUATE LAW REVIEW

In the 1966 case of Harper v Virginia State Board of Elections, the Supreme Court struck down a Virginia state-level poll tax utilizing the Equal Protection Clause. The opinion of the Court, delivered by Justice William O. Douglas, held that “the right to vote is too precious, too fundamental to be so burdened or conditioned,” and argued that “wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.”32 Indeed, maintained Justice Douglas, a “[s]tate violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.”33 Harper thus critically established that the Fourteenth Amendment provides a secondary avenue to investigate discriminatory poll tax claims. Current statutes disbarring indigent felons from voting restoration thus constitute an unlawful poll tax in accordance with the criteria established in both Harman and Harper.

IV. Legal Precedent Regarding Legal Financial Obligations Despite the potential for broader poll tax claims within the Twenty-Fourth and Fourteenth Amendments, such arguments have largely failed to garner success at the federal level. In the 2010 U.S. Ninth District Court of Appeals decision in Harvey v Brewer,34 plaintiffs argued that Arizona Revised Statutes Section 13-912, an Arizona state law requiring felons to pay fines and restitution prior to the restoration of their voting rights, unlawfully disenfranchised felons on the basis of their wealth.35 Debra Harvey and Catherine Beddard were two formerly convicted felons who had served out the terms of their sentence and probation but remained barred from voting rights restoration as a result of their outstanding fines and restitution. They alleged the Arizona law to be an unlawful poll tax under both Equal Protection and Twenty-Fourth Amendment 9

COLUMBIA UNDERGRADUATE LAW REVIEW claims. The Court rejected these claims, arguing that restitution and fines comprised portions of their sentences: Plaintiffs’ right to vote was not abridged because they failed to pay a poll tax; it was abridged because they were convicted of felonies. Having lost their right to vote, they now have no cognizable TwentyFourth Amendment claim until their voting rights are restored. That restoration of their voting rights requires them to pay all debts owed under their criminal sentences does not transform their criminal fines into poll taxes.36 Critically, the Court here determined that, pursuant to Richardson, felons possess no right to the franchise and thus are precluded from all constitutional protections to such a right.

Accordingly, the government bears no responsibility in restoration of ballot access.

In the 2010 Sixth Circuit decision in Johnson v Bredesen,37 plaintiffs challenged Tennessee Code Annotated Section 40-29-202, a Tennessee state law which requires felons to complete payment of LFOs, this time as restitution and child support obligations, prior to restoration of voting rights.38 The plaintiffs again challenged the government under both Equal Protection and Twenty-Fourth Amendment claims.

The Court rejected both, finding that the law failed to target a suspect class and asserting that “[h]aving lost their voting rights, Plaintiffs lack any fundamental interest to assert,” as pursuant to Richardson v Ramirez.39 Echoing the logic of Harvey, the Court maintained that, although Tennessee law allows for voting restoration of many of its felons, by virtue of the federal lack of felony voting rights, the U.S. Constitution has no bearing in protecting these otherwise eligible voters. The Court further ruled against Twenty10

COLUMBIA UNDERGRADUATE LAW REVIEW Fourth Amendment claims by arguing that paying restitution and child support constitutes a component of the sentence. “Unlike poll taxes,” the Court stated, “restitution and child support represent legal financial obligations Plaintiffs themselves incurred.”40 Critical to note in Johnson is that child support obligations do not bear the same punitive quality associated with fines and restitution, nor are they in any manner germane to one’s conviction. All three plaintiffs possessed pre-existing child support fees as a matter of coincidence, rather than any necessary attachment to their felonies committed.

Thus, the Court’s determination that such costs constitute an essential portion of the sentence is a significantly broader reading of state discretion than Harvey. Once again, Richardson provided the basis for the ruling. Applying Richardson’s logic, felons possess no constitutionally protected right to the franchise, and thus the State is in no manner bound to regulate this right.

While it did not directly address LFOs, related precedent set in Bearden v Georgia nonetheless bears particular salience in light of the aforementioned implicit methods of LFO disenfranchisement.

Writing “[t]his Court has long been sensitive to the treatment of indigents in our criminal justice system,” the Court ruled that the state must assess an individual’s indigency by employing “careful inquiry” before leveraging punitive measures for failure to pay carceral fees.41 The petitioner, an individual previously incarcerated for burglary and theft by receiving stolen property, had his probation revoked and was ordered to return to prison for his inability to pay the outstanding $500 fine and $250 restitution despite efforts to seek employment. While the Georgia Court of Appeals rejected the petitioner’s Equal Protection claim, upon appeal, the U.S. Supreme Court ultimately ruled that an individual may not be punished if he has made bona fide efforts to seek employment or borrow money to pay his crime. “If the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own,” maintained Justice Sandra Day O’Connor, writing 11

COLUMBIA UNDERGRADUATE LAW REVIEW for the majority, “it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.”42 Until recently, no existing legal precedent had found success in federal court directly addressing the discriminatory practice of LFOs either by Twenty-Fourth or Fourteenth Amendment claims.

Nonetheless, the predominant cases brought forward, Johnson and Harvey, both addressed fines and restitution but neglected to bring forward claims regarding fees. Because they possess no punitive quality and relate only to functionary costs of incarceration, fees are to a significantly greater degree extraneous to the sentence. A case directly addressing fees in relation to voting rights had yet to find success at the federal level until a recent decision in the Florida case Jones v DeSantis, which radically changed this precedent.

V. Implications of Jones v DeSantis In a historic decision in May 2020, a Florida federal district court ruled that while payment of fines and restitution as a precondition to voting may be permissible, the levying of fees does indeed constitute an unlawful poll tax. While criminal disenfranchisement was previously legal under the Florida State Constitution, in 2018, Florida voters passed the ballot initiative Amendment 4, restoring voting rights to the state’s formerly incarcerated individuals upon completion of their sentence.43 In response, the Florida state legislature passed Senate Bill (SB) 7066, stipulating restoration to be granted only “upon completion of all terms of sentence including parole or probation” and including payment of all outstanding legal financial obligations as a condition to that parole, regardless of indigency.44 In a class-action lawsuit brought forward by a coalition of civil rights groups including the American Civil Liberties Union, the Brennan Center for Justice, the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund, 12

COLUMBIA UNDERGRADUATE LAW REVIEW the Southern Poverty Law Center, and the Campaign Legal Center, the plaintiffs challenged SB 7066, citing both Twenty-Fourth Amendment and Equal Protections claims, among others.

Ruling in favor of the plaintiffs, federal district court judge Robert Hinkle for the first time held that carceral debt constitutes a discriminatory and unlawful poll tax in violation of both the Equal Protection Clause and the Twenty-Fourth Amendment. Denouncing such a “pay-to-vote” system, the Court held that, while restitution and fines do not constitute a tax, fees are without question a tax: The fees are assessed regardless of whether a defendant is adjudged guilty, bear no relation to culpability, and are assessed for the sole or at least primary purpose of raising revenue to pay for government operations—for things the state must provide, such as a criminal-justice system, or things the state chooses to provide, such as a victimcompensation fund. A tax by any other name.45

Furthermore, the ruling in Jones critically did away with the recurring legal doctrine cited in both Harvey and Johnson that felons possess no right to vote of which to be abridged. This settled the false notion that state bears no culpability in encroachment upon the rights of its eligible felon voters: When a state decides to restore the right to vote to some felons but not others, the state must comply with the United States Constitution, including the First, Fourteenth, Fifteenth, Nineteenth, and TwentyFourth Amendments. It is no answer to say, as the State does, that a felon has no right to vote at all, so a state can restore the right to vote or not in the state’s unfettered discretion.46 13

COLUMBIA UNDERGRADUATE LAW REVIEW

Clarifying the ruling in Richardson, the Court stipulated that while federal law does not guarantee a felon’s right to vote, states such as Florida that do grant felon voting restoration are nonetheless constitutionally bound to regulate and protect that right: “when a state allows some felons to vote but not others, the disparate treatment must survive review under the Equal Protection Clause.”47 This ruling thus corrects the erroneously applied doctrine in Harvey and Johnson.

However, the battle waged in Jones to take on the modern day poll tax is far from over. The district court ruling has since been appealed and will likely make its way to the Supreme Court.

Notably, what makes Jones such a critical case is the ticking clock of the impending November elections, adding a heightened sense of urgency to the cases’s progression through the appellate process.

On July 1, Eleventh Circuit judges granted the State’s petition to stay a previously ordered permanent injunction pending appeal.48 On July 16, after plaintiffs appealed the Eleventh Circuit’s stay, the Supreme Court voted 6-3 to uphold the stay. The Court’s decision to stay the injunction barred 750,000 eligible voters from registering for Florida’s July 20 deadline. The Eleventh Circuit scheduled the appellate hearing for August 18, the same day as Florida’s primary elections, further disenfranchising these voters despite the favorable district court ruling.

In her dissenting opinion, joined by Justice’s Kagan and Ginsburg, Justice Sonia Sotomayor staunchly criticized the decision, writing, “there is no question that these people would suffer irreparable harm were they denied the vote.”49 Her concluding assertion that “This Court’s inaction continues a trend of condoning disfranchisement,” suggests the Justice’s support, were the case as a whole to reach the Supreme Court.50 The ruling in Jones will determine the future of voting rights in related jurisdictions throughout the country. Already, 14

COLUMBIA UNDERGRADUATE LAW REVIEW in the ongoing case of Thompson v Alabama brought forward by the Campaign Legal Center, the plaintiffs have similarly sought to strike down an Alabama LFO voting law, citing in their motion for a preliminary injunction, “The Jones decision controls this case…

Alabama’s voting rights restoration laws are indistinguishable from Florida’s in any respect relevant to the Eleventh Circuit’s reasoning.”51 On June 9, the attorneys general of Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Nebraska, South Carolina, and Texas, states which all maintain discriminatory laws requiring payment of LFOs as a precondition to voting, filed a joint brief of amicus curiae in support of the Jones defendants.52 On August 3, a coalition of 20 state attorneys general including the District of Columbia, California, and New York, filed an opposing brief of amicus curiae in favor of the plaintiffs-appellees.53 Such public concern on the part of relevant states attests to the far-reaching weight of the ruling. The Court’s ultimate determination in Jones may likely spark parallel suits in the 29 other states which currently maintain LFO laws disenfranchising eligible voters.

VI. Conclusion Jones bears far-reaching implications for the future of voting rights restoration. Not only did the district court’s ruling break through pre-existing struggles to strike down a more broadly understood form of poll tax, but it also did so under both TwentyFourth Amendment and Equal Protection claims, a rarity for the longtime “forgotten amendment.” Additionally, it rejected the previous misreadings of Richardson in Harvey and Johnson that felons possess no federal right to vote and thus their otherwise state eligibility is not constitutionally protected. As the case makes its way through the appellate process, the Jones ruling will doubtlessly shape voting rights in jurisdictions across the nation for decades to come. The legal battle is far from over, as forms of implicit 15

COLUMBIA UNDERGRADUATE LAW REVIEW and explicit disenfranchisement continue to pervade the country.

Nonetheless, for the twenty-nine states across the country which currently continue to disenfranchise voters on the basis of wealth, Jones marks a milestone in the legal battle against the modern-day poll tax.

16

COLUMBIA UNDERGRADUATE LAW REVIEW Amendment 15, USCS Const. Amend. 15; Amendment 19, USCS Const.

Amend. 19.

2 Richardson v. Ramirez, 418 U.S. 24 (1974).

3 Ibid.

4 Ann Cammett, “Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt,” Penn State Law Review 349, 356 (2012). https://advance-lexis-com.ezproxy.cul.columbia.edu/api/ document?collection=analytical-materials&id=urn:contentItem:5XB3-GNP1DXJ3-X0CD-00000-00&context=1516831.

5 Richardson v Ramirez, 418 U.S. 24 (1974).

6 Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, (The Sentencing Project June 14, 2016), online at https://www. sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparityin-state-prisons/.

7 Cammett, “Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt,” 369.

8 Campaign Legal Center and Georgetown Law Civil Rights Clinic, Can’t Pay, Can’t Vote: A National Survey on the Modern Poll Tax (Campaign Legal Center and Georgetown Law Civil Rights Clinic 2019), online at https://campaignlegal. org/sites/default/files/2019-07/CLC_CPCV_Report_Final_0.pdf,.

9 Ibid, 19.

10 Ryan Partelow, “The Twenty-First Century Poll Tax,” 47 Hastings Constitutional Law Quarterly 425, 452 (2020), https://advance-lexis-com. ezproxy.cul.columbia.edu/api/document?collection=analytical-materials&id=urn :contentItem:5YNH-VKR1-JFSV-G16S-00000-00&context=1516831.

11 Campaign Legal Center and Georgetown Law Civil Rights Clinic, Can’t Pay, Can’t Vote: A National Survey on the Modern Poll Tax, 20.

12 United States Commission on Civil Rights, Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities (United States Commission on Civil Rights: 2019), https://www.usccr.gov/pubs/2019/0613-Collateral-Consequences.pdf, 50.

13 Ibid, 35-36.

14 Patrick Liu, Ryan Nunn, and Jay Shambaugh, Nine Facts About Monetary Sanctions in the Criminal Justice System (Brookings: 2019), https://www. brookings.edu/wp-content/uploads/2019/03/BailFacts_20190314.pdf, 2.

15 Cammett, “Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt,” 381.

16 Campaign Legal Center and Georgetown Law Civil Rights Clinic, Can’t Pay, Can’t Vote: A National Survey on the Modern Poll Tax, 21.

1

17

COLUMBIA UNDERGRADUATE LAW REVIEW Beth Colgan, “Wealth-Based Penal Disenfranchisement,” 72 Vanderbilt Law Review 55, 69 (January, 2019), https://advance-lexis-com.ezproxy.cul.columbia. edu/api/document?collection=analytical-materials&id=urn:contentItem:5VJPC440-02BN-10RN-00000-00&context=1516831.

18 Ibid, 78.

19 Campaign Legal Center and Georgetown Law Civil Rights Clinic, Can’t Pay, Can’t Vote: A National Survey on the Modern Poll Tax, 25.

20 Ibid, 19.

21 Ibid, 18.

22 Partelow, “The Twenty-First Century Poll Tax,” 428.

23 Ibid, 431.

24 US Const Amend XXIV, § 1.

25 Partelow, “The Twenty-First Century Poll Tax,” 432.

26 Harman v. Forssenius, 380 U.S. 528 (1965).

27 Ibid.

28 Virginia Constitutional Convention (Proceedings and Debates, 1901-1902) 2937-3080.

29 Harman v. Forssenius, 380 U.S. 528 (1965).

30 Ibid.

31 US Const Amend XXIV, § 1.

32 Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966).

33 Ibid.

34 Harvey v. Brewer, 605 F.3d 1067 (9th Cir 2010).

35 Arizona Code § 13-912.

36 Harvey v. Brewer, 605 F.3d 1067 (9th Cir 2010).

37 Johnson v. Bredeson, 624 F.3d 742 (6th Cir 2010).

38 Tennessee Code § 40-29-202.

39 Johnson v. Bredeson, 624 F.3d 742 (6th Cir 2010).

40 Ibid.

41 Bearden v. Georgia, 461 U.S. 660 (1983).

42 Ibid.

43 Fl. Const Art VI, § 4.

44 Fl. S.B. 7066, (2019).

45 Jones v. DeSantis, 410 F. Supp. 3d 1284, (ND Fl 2020).

46 Ibid.

47 Ibid.

48 Defendants-Appellants’ Petition for Initial Hearing En Banc, Jones v. DeSantis ,no. 20-12003, 2020 http://www.ca11.uscourts.gov/sites/default/files/enbanc_ cases/20-12003%20Order.pdf.

17

18

COLUMBIA UNDERGRADUATE LAW REVIEW Raysor v DeSantis, 591 U.S. ___ (2020).

Ibid.

51 Plaintiffs Treva Thompson, Darius Gamble, and Greater Birmingham Ministries’ Motion for Preliminary Injunction and Memorandum of Law in Support, Thompson v. Alabama. https://campaignlegal.org/sites/default/ files/2020-05/Alabama%20Motion%20for%20Preliminary%20Injunction.pdf.

52 Brief of Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Nebraska, South Carolina, and Texas as Amici Curiae in Support of DefendantsAppellants’ Petition for Initial Hearing En Banc, Jones v. DeSantis, No. 20-12003, (filed June 9, 2020). https://www.brennancenter.org/sites/default/ files/2020-06/2020-06-09%20-%20Amicus%20Brief%20of%20Alabama%20 et%20al.%20in%20support%20of%20Defendants-Appellants%20Petition%20 for%20Initial%20Hearing%20En%20Banc.pdf.

53 En Banc Brief of Amici Curiae The District of Columbia, Illinois, California, Colorado, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Vermont, Virginia, and Washington in Support of PlaintiffsAppellees Jones v. DeSantis, No. 20-12003, (filed August 3, 2020). https://www. marylandattorneygeneral.gov/news%20documents/080320_Jones_v_DeSantis_ Amicus.pdf.

49 50

19

COLUMBIA UNDERGRADUATE LAW REVIEW Works Cited Ann Cammett, “Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt,” Penn State Law Review, 117, 349 (Fall, 2012). https://advance-lexis com.ezproxy.cul.columbia.edu/api/ document?collection=analytical-materials&id=urn:contentItem:5XB3GNP1-DXJ3-X0CD-00000-00&context=1516831.

Beth A. Colgan, “Wealth-Based Penal Disenfranchisement,” Vanderbilt Law Review, 72, 57 (January, 2019). https://advance-lexis-com.ezproxy.cul. columbia.edu/api/document?collection=analytical-materials&id=urn:co ntentItem:5VJP-C440-02BN-10RN-00000-00&context=1516831.

Brief of Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Nebraska, South Carolina, and Texas as Amici Curiae in Support of Defendants-Appellants’ Petition for Initial Hearing En Banc, Jones v. DeSantis, No. 20-12003, (filed June 9, 2020) https://www. brennancenter.org/sites/default/files/2020-06/2020-06-09%20-%20 Amicus%20Brief%20of%20Alabama%20et%20al.%20in%20 support%20of%20Defendants-Appellants%20Petition%20for%20 Initial%20Hearing%20En%20Banc.pdf.

Campaign Legal Center and Georgetown Law Civil Rights Clinic. Can’t Pay, Can’t Vote: A National Survey on the Modern Poll Tax. Campaign Legal Center and Georgetown Law Civil Rights Clinic, 2019. https:// campaignlegal.org/sites/default/files/2019-07/CLC_CPCV_Report_ Final_0.pdf.

David Schultz and Sarah Clark, “Wealth v. Democracy: The Unfulfilled Promise of the Twenty-Fourth Amendment,” Quinnipiac Law Review, 29, 375 (2011). https://advance-lexis com.ezproxy.cul.columbia.edu/api/ document?collection=analytical-materials&id=urn:contentItem:533J6XJ0-00CV-V0HD-00000-00&context=1516831.

En Banc Brief of Amici Curiae The District of Columbia, Illinois, California, Colorado, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Vermont, Virginia, and Washington in Support of Plaintiffs-Appellees Jones v. DeSantis, No. 2012003, (filed August 3, 2020). https://www.brennancenter.org/sites/ default/files/2020-08/2020-08-03%20Amicus%20Brief%20of%20 Washington%2C%20D.C.%20et%20al.%20in%20support%20of%20 Plaintiffs-Appellees.pdf.

Patrick Liu, Ryan Nunn, and Jay Shambaugh. Nine Facts About Monetary

20

COLUMBIA UNDERGRADUATE LAW REVIEW Sanctions in the Criminal Justice System. Brookings, 2019. https:// www.brookings.edu/wp-content/uploads/2019/03/BailFacts_20190314. pdf.

Ryan A. Partelow, “The Twenty-First Century Poll Tax,” Hastings Constitutional Law Quarterly, 47, 425 (Spring, 2020). https://advance-lexis-com. ezproxy.cul.columbia.edu/api/document?collection=analytical-ma terials&id=urn:contentItem:5YNH-VKR1-JFSV-G16S-0000000&context=1516831.

The Sentencing Project. The Color of Justice: Racial and Ethnic Disparity in State Prisons. The Sentencing Project, 2016. https://www. sentencingproject.org/publications/color-of-justice-racial-and-ethnicdisparity-in-state-prisons/.

United States Commission on Civil Rights. Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities. United States Commission on Civil Rights, 2019. https:// www.usccr.gov/pubs/2019/06-13-Collateral-Consequences.pdf.

21

COLUMBIA UNDERGRADUATE LAW REVIEW

Freedom from Fear: Liberty and Gendered Violence Sarah Lu | Columbia University Edited by: Kay Barber, Isabel Coberly, Gabriel Fernandez, Anushka Thorat, Jack Walker, Sarah Wang

I. Introduction and Background

What does it mean to be free? The words “liberty” or “freedom” are particularly difficult to evaluate in light of their relation to the state, disseminating conflicting meanings when it comes to analyzing normative claims of liberty. In debates regarding gender justice, there is always the central issue of collective liberation. Collective liberation exists as an ideal that will inevitably produce internal contestations amongst its advocates; liberty for one woman may not be representative of liberty for another. Recent debates have also shifted the meaning of liberation away from conceptions of the state, emphasizing reliance on the community in areas where the state has failed. This paper seeks to investigate the relationship between negative and positive liberty, a distinction articulated by political theorist Isaiah Berlin. I analyze feminist responses to Berlin’s conceptions of liberty, as well as the role of the state in perpetuating or failing to prevent gendered violence in light of the private/public distinction. I also interrogate how cases like DeShaney v Winnebago County and Town of Castle Rock v Jessica Gonzales enforce and prioritize a negative conception of liberty, enforcing the seemingly irreconcilable divide between negative and positive liberty. In our vision for gender justice, however, it is essential that we look beyond how such conceptions of liberty arise

22

COLUMBIA UNDERGRADUATE LAW REVIEW in reference to state intervention and non-intervention alone.

Isaiah Berlin asked the question of what it meant to be free in the context of the Cold War, offering two opposing concepts of freedom defined as either “negative freedom” or “positive freedom,” or negative liberty and positive liberty, respectively. In Two Concepts of Liberty, Berlin refers to negative freedom as the state of being wherein one can act unobstructed by others, with “no man or body of men interfer[ing] with my activity.”1 If one is prevented by others from doing what they could do, then they are “unfree,” and lack negative liberty. Berlin attributes this conception of freedom as the fundamental concept underlying the political philosophy of English political philosophers, and from this conception follows that there be a line “drawn between the area of private life and that of public authority,”2 as there exists a demarcated space or “area of personal freedom” that cannot ever be violated. In the political theory tradition, we enter varying debates on how “wide” this area should be drawn.

Positive freedom, on the other hand, is slightly more complicated; broadly speaking, it indicates a freedom for one’s life and decisions to depend on yourself and not on negative or external forces of any kind.3 When we have positive liberty, we act in a way to control one’s life and to realize one’s fundamental purposes. Positive liberty therefore asks what one is free to be or by whom they are ruled.

The difference between negative and positive liberty entails that the desire for a “free area for action” is not the same as the desire to be governed by one’s self, or what Berlin delineates as “freedom from” in the negative conception, and “freedom to” in the positive conception. When I refer to a positive conception of liberty, it does not necessarily entail the freedom one secured by being protected to the state. Rather, I aim to evaluate whether and how the state may operate in relation to enforcing certain types of liberty over others.

Berlin’s mid-century conception of freedom can be useful in articulating larger claims of gender justice. Constitutional crises ranging from pandemic population control to torture interrogation 23

COLUMBIA UNDERGRADUATE LAW REVIEW tactics have brought into question what it really means to have liberty, and in most debates, it has centered around the idea of negative liberty. We seek to be free from state despotism; from state censorship and control; LGBTQ+ people seek the freedom to be with whichever partner they choose; women seek the freedom to be free from state intervention in private health procedures such as abortion. But feminist responses to Berlin’s conception of freedom, such as those penned by Carol Gould or Nancy Hirschmann, raise the question of what it means to frame liberty as purely unobstructed choice, and what it means to delineate an “area of personal freedom” that is often relegated to the feminized, private realm. As Iris Marion Young and Catherine MacKinnon emphasize, the division of the public and private realms relies on the funneling of needs and desires into the private realm. The public citizen is defined in relation to the “womanly” nature of the private realm, a realm that appears to embrace “feeling, sexuality, birth, and death.”4 Such a configuration has contributed to the subordination of women in general, wherein unacceptable rates of violence against women flourish in the context of intimate relationships that have been pushed to the so-called private realm.5 The following section will analyze how feminist interventions in the public/private distinction play out in DeShaney and Town of Castle Rock, and what that entails for our theoretical conceptions of freedom.

II. Liberty is Gendered: Town of Castle Rock and DeShaney

In 2011, the Inter-American Commission on Human Rights (IACHR) issued an astonishing decision on the case of Jessica Lenahan (formerly Gonzales) v United States of America. The IACHR found the United States responsible for human rights violations against Lenahan, challenging the principles upheld in DeShaney v Winnebago County and Town of Castle Rock v Jessica Gonzales that the government had no duty to protect individuals 24

COLUMBIA UNDERGRADUATE LAW REVIEW from private acts of violence. As stated in the IACHR report, the United States had violated Articles I, II, V, VI, VII, IX, XVII, and XXIV of the American Declaration, “by failing to exercise due diligence to protect Jessica Lenahan and her daughters from acts of domestic violence.”6 Some of these Articles include the right “to life, liberty, and the security of his person” (Article I), “to the protection of the law against abusive attacks upon his...private and family life” (Article V), and “to the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights” (Article XVII).7

The IACHR decision resulted from an international appeal following the decision of Town of Castle Rock v Jessica Gonzales (Lenahan) (“Town of Castle Rock”).8 Town of Castle Rock was both a tragic and shocking example of how the state failed to prevent a terrible act of gendered violence. In June 1999, Lenahan’s husband abducted her three daughters while they were playing outside the family home. Lenahan and her children had previously filed a temporary restraining order (“TRO”) against her husband for domestic abuse, and upon suspecting that her husband had taken her children, Lenahan called the Castle Rock Police Department (“CRPD”), requesting that the police enforce the TRO against her husband. The police told her there was nothing they could do and proceeded to ignore multiple concerned calls and requests for investigation made by Lenahan during the course of the night. A couple of hours later, Lenahan’s husband showed up to the police station with a semi-automatic rifle and opened fire, before being shot down by the police. CRPD found the bodies of Lenahan’s three murdered children, Leslie (7), Katheryn (8), and Rebecca (10) in the back of his car.

Lenahan filed suit under 42 U.S.C. § 1983 in Town of Castle Rock, alleging that the CRPD had violated the Fourteenth Amendment’s Due Process Clause when its police officers failed to respond to her repeated reports that her husband had taken her 25

COLUMBIA UNDERGRADUATE LAW REVIEW children. The §1983 statute provides a mechanism for individuals to sue state government employees and seek remedies for violations of their constitutional rights, so long as the person was acting “under color of statute.” Lenahan brought a § 1983 claim that the Castle Rock Police Department had an official policy or custom of failing to respond properly to complaints of restraining order violations and tolerated the non-enforcement of restraining orders by its police officers. These willful and reckless actions were taken with such gross negligence so as to “indicate wanton disregard and deliberate indifference to respondent’s [Lenahan’s] civil rights.”9

The Supreme Court decision that followed in Town of Castle Rock emphasized a specific conception of negative liberty found in judicial interpretations of the Due Process Clause of the Fourteenth Amendment. The Due Process Clause states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.” Scalia’s majority opinion affirmed lower court decisions and emphasized that the “substantive” component of the Due Process Clause did not require the State to protect the life, liberty and property of its citizens against invasion by private actors.10 In other words, the Court did not believe that certain provisions of Colorado law made the enforcement of the TRO against Lenahan’s husband necessary.

By centering the Court’s interpretation of the Due Process Clause on the lack of deprivation or lack of action by the state to interfere in Lenahan’s situation, the Court’s decision appears to be a reasonable one. In reference to a negative conception of liberty where the state should not interfere with Lenahan’s private actions, the actions of the town of Castle Rock and CRPD certainly do not constitute a violation at all. Under Berlin’s conception of negative liberty and a choice-based conception of feminist freedom, Lenahan was free to contact the police and request them to intervene—she could, in principle, make a series of choices to secure her and her children’s 26

COLUMBIA UNDERGRADUATE LAW REVIEW freedom without obstacle. The police simply failed to intervene.

But let us look at a different construction of freedom to analyze this case. What makes the decision in Town of Castle Rock so egregious is the relegation of domestic violence and gendered violence to the private realm, in addition to framing the actions of the police as non-depriving. As Scalia notes in majority opinion, there is a “well-established tradition of police discretion” in regards to enforcing a TRO, and state law did not give Lenahan an entitlement to the enforcement of such an injunction because the State does not have an obligation to intervene in private affairs.11 “The serving of the public rather than private ends [Lenahan’s domestic dispute] is the normal course of the criminal law because criminal acts....strike at the very being of society.”12 In “Berlin, Feminism, and Positive Liberty,” Nancy Hirschmann highlights the issue of labeling an instance such as Lenahan’s repeated outcries for police intervention as a private, internal matter in reference to Berlin’s conceptions of liberty. Hirschmann’s theory articulates a feminist critique of Berlin, in which she discusses the following: In situations where courts and police openly disbelieve women who report abuse and violence, the feelings of shame, guilt, anger, and helplessness that may arise in a woman are labeled as “internal feelings that come out of the self as an isolated identity.”13 Young and MacKinnon have similarly discussed the notion of pushing public desires into the area of the private, wherein the private is designated as the particularistic and feminine. Town of Castle Rock follows a similar axis of compartmentalization as outlined by Hirschmann, Young, and MacKinnon. The case isolates Lenahan’s husband’s actions as a personal domestic squabble, a private affair that the police have no imperative to intervene in. It treats Lenahan’s feelings of fear towards her husband and personal motivations for calling the police as simply immaterial to the case. But as Hirschmann would argue, Lenahan’s feelings are not simply personal; nor can they be confined to the private realm.

27

COLUMBIA UNDERGRADUATE LAW REVIEW Rather, they are manifestations and expressions of public policy, attitudes, political structures, and decisions. Like the actions of her husband, Lenahan’s calls for help “reflect particular, even if frequently unrecognized, values and relationships of power that systematically privilege some over others.”14

Berlin’s negative conception of freedom is therefore insufficient to justify the theoretical underpinnings of Town of Castle Rock as well as our analysis of how exactly Lenahan was violated. Berlin’s conception of positive liberty, on the other hand, is one that resonates in Justice Stevens and Justice Ginsburg’s dissent: the failure to observe minimal procedural safeguards in a matter of gendered violence could indeed lead to “erroneous deprivation” of freedom. While the dissent focuses on whether the TRO could create a “property interest” that is protected from arbitrary deprivation by the Due Process Clause, Stevens outlines the central question in reference to the positive entitlement of police protection. The question at the heart of the case, then, lies here: “Did respondent have a right to police assistance comparable to the right she would have possessed to any other service the government or private firm might have undertaken to provide?” If the CRPD offered a certain set of services and guarantees, then Lenahan’s reliance on the guarantee of police protection meant that CRPD’s actions were indeed a failure to adhere to Due Process. Stevens and Ginsburg’s analysis reveals their positive conception of the freedom that Lenahan herself was entitled to.

Recall that the decision in Town of Castle Rock promotes an understanding of freedom that is limited to negative liberty: the state did not intervene or violate Lenahan’s “area of personal freedom,”15 and as a result, there is no positive entitlement to any citizen in having their family secured and protected from violence.

However, as Carol Gould discusses in “Retrieving Positive Freedom and Why It Matters,” a citizen’s entitlements should not only be protected by the liberty of non-intervention. Rather, the power of 28

COLUMBIA UNDERGRADUATE LAW REVIEW choice or conscious activity in securing one’s own ends, concepts that both negative and positive liberty appear to promote, are found in individuals who are necessarily socially intertwined. “[B]ut individuals are fundamentally interdependent, such that their activity depends on the care and nurturance of others, on solidarity with others, and on a set of social, economic and political institutions that provide for the conditions of free activity and self-transformation.”16 This feminist interpretation of what it means to have freedom in the context of choice suggests for our analysis of Town of Castle Rock that CRPD did not only fail to intervene in a socially dependent issue that should concern the public, i.e. domestic violence, they also deprived Lenahan of the ability to care for her children. When “the line between action and inaction [is] often in the eyes of the beholder,”17 the line between positive and negative liberty, as well as the distinction between the public and private, become increasingly blurred. Town of Castle Rock is just one case out of many that exemplify heavily gendered conceptions of liberty and privacy in the law.

In fact, Town of Castle Rock draws much of its constitutional reasoning from DeShaney v Winnebago County Department of Social Services, et al. (“DeShaney”),18 a case which similarly relies on Berlin’s negative conception of freedom. The suit also involved § 1983 claims that Melody DeShaney brought on behalf of her son, Joshua DeShaney. Joshua was abused and physically beaten by his father, Randy DeShaney, for years. Winnebago County authorities first learned that Joshua may have been a victim of child abuse in January 1982, when the father’s second wife notified the police that the father had previously hit Joshua. The father denied the allegations brought forth by the Winnebago Department of Social Services (“DSS”). In 1983, Joshua was admitted to a local hospital with multiple bruises and abrasions, upon which a physician at the hospital suspected child abuse and notified DSS. DSS obtained an order from a juvenile court to place Joshua in temporary custody of 29

COLUMBIA UNDERGRADUATE LAW REVIEW the hospital, but an ad hoc committee consisting of psychologists, police detectives, county lawyers, and DSS caseworkers decided that there was insufficient evidence of child abuse to retain Joshua in custody of the Court. The juvenile court dismissed the case. A continuous cycle of abuse by Joshua’s father and dismissal by DSS authorities followed until March 1984, when Randy DeShaney beat Joshua so severely that he fell into a life-threatening coma. The medical scans in the record revealed brain hemorrhages caused by traumatic injuries to the head that were consistent with years of physical abuse; Joshua was so severely brain damaged that he was expected to spend the rest of his life institutionalized. Joshua’s mother then proceeded to bring the § 1983 claim that respondents had “deprived petitioner of his liberty interest in bodily integrity, in violation of his rights under the substantive component of the Fourteenth Amendment’s Due Process Clause, by failing to intervene to protect him against his father’s violence.”19 The district court ruled in favor of Winnebago County and the other respondents in its decision for summary judgment, which was subsequently affirmed by the Court of Appeals.

DeShaney conveys a similar separation between the public and the private as emphasized in Town of Castle Rock. In DeShaney, the Supreme Court affirmed the Seventh Circuit’s decision that DeShaney had not made an actionable § 1983 claim, under the reasoning that the Due Process Clause does not require state or local governmental entities to protect its citizens from “private violence and other mishaps not attributable to the conduct of its employees.”20 Again there appears a fundamental separation between the public and private realm when it comes to notions of seemingly interpersonal violence and conflict; from the case, we garner that child abuse is not something that the state has a duty to intervene in or prevent. “Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.”21 While child 30

COLUMBIA UNDERGRADUATE LAW REVIEW abuse does not necessarily equate to gendered violence, the public/ private distinction again serves to articulate a masculinized sense of negative liberty in which the only freedom that matters is that “man can act unobstructed by others.”22 In a feminized private realm that embraces “feeling, sexuality, birth, and death,”23 it becomes obvious where the mother and Joshua’s justified grievances stand in relation to an overemphasized conception of negative liberty. The maternal care and love in a mother attempting to right the wrongs of her child’s abuse are depicted as nothing more than an interpersonal grudge. In fact, cases like DeShaney suggest this grievance should be confined to the private realm.

Further, it is clear that the Supreme Court does not characterize DSS’ failures to intervene as affirmative, depriving acts. Laura Oren discusses the nature of the state-created danger doctrine in cases like Town of Castle Rock and DeShaney, noting that these cases are especially disheartening because they depend on the “narrow distinctions between mere passivity and more affirmative acts.”24 According to Oren, most § 1983 claims regarding state-created danger fail, because the requisite “affirmative act” was missing (citing Kneipp v Tedder, Dwares v the City of New York). But in looking at the facts regarding DeShaney, it is quite clear that there were a series of affirmative actions or steps taken that explicitly deprived Joshua in his future ability to develop various capacities, widen and deepen relationships, and realize long-term projects and goals.25 This sense of positive liberty, as articulated by Gould, is how Joshua’s deprivation of liberty should have been framed.

Randy DeShaney’s cycle of abuse was severely limiting for Joshua, and such a cycle was intensely exacerbated by the DSS’ intentional negligence when it came to Joshua’s case. The respondents did not merely fail to protect Joshua once. After his first hospital admission and release, Joshua was treated for abuse-like injuries a month later, which the DSS caseworker concluded that there was no basis for action.26 The DSS caseworker made monthly visits to the DeShaney 31

COLUMBIA UNDERGRADUATE LAW REVIEW home in the next six months, noticing that Joshua had suspicious injuries on his head and had not been enrolled in school, but took no action.27 In November of that same year, the emergency room notified DSS that Joshua had been treated again for injuries they believed to be caused by child abuse, and DSS still took no action.

Yet, according to the Court, the state’s awareness of such abuse “played no part in their creation, nor did it do anything to render him more vulnerable to them.”28

As Justice Marshall and Justice Blackmun’s dissent outlined, the Court’s baseline in DeShaney is the absence of positive rights in the Constitution, and a “concomitant suspicion of any claim that seems to depend on such rights.”29 The Court construes Melody DeShaney’s claims as focusing on inaction and only tangentially about action, but it is wrong to simply say that the state “stood by and did nothing.”30 It in fact actively intervened in Joshua’s life through the DSS child protection program, and acquired more certain knowledge that Joshua was in grave danger.31 Joshua was deprived of the usual state interventions against violence and the promise that the child protection system, as carried out by DSS caseworkers, would protect him. And in that sense, Joshua “got neither end of the bargain,”32 experiencing a double deprivation of positive liberty in which he lost 1) the enabling conditions of freedom33 to live without violence and harm, and 2) the equality of agency34 in which all his future possibilities of conscious choice and activity to realize one’s life purposes became severely limited by traumatic brain injury.

This deprivation is largely ignored in favor of determining whether there was a causal link between the actions of Winnebago authorities and their deprivation of Joshua’s negative constitutional liberty.

Joshua’s rights to live and have access to government services in order to carry out a meaningful life are construed as “an entitlement to government aid,”35 as opposed to feminist conceptions of freedom wherein people should have prima facie equal positive liberty in order to sustain the conditions of self-development. The former type 32

COLUMBIA UNDERGRADUATE LAW REVIEW of reasoning is directly cited by Justice Scalia in Town of Castle Rock, where he notes that the procedural component of the Due Process Clause does not protect everything that might be described as a “benefit.”

When looking at Town of Castle Rock and DeShaney, we must critically examine how ideas of liberty or freedom become evaluated against the gendered axes of public and private. For § 1983 claims, there are typically three levels of fault for state action: negligence, deliberate indifference, and conduct that shocks the conscience. The “shocks the conscience” standard is the highest standard to apply in Fourteenth Amendment cases,36 but as Oren notes, “It can take a lot to shock the conscience of some courts.”37 The absorbance of conscience-shocking behaviors such as domestic abuse, child abuse, and murder is partly due to the notion that negative liberty is to be prioritized above all else in constitutional claims, and partly due to how freedom becomes divided in reference to a public/ private distinction. One’s freedom to care for their children or live out a meaningful life without fear of violence and abuse is negated in favor of the idea that freedom without state obstruction should be prioritized above all else. Town of Castle Rock and DeShaney demonstrate the difficulty in determining what is truly conscienceshocking when filtered through the gendered lens of liberty.

III. Gendered Violence and Police Power

I have so far emphasized the lack of state protection in cases involving severe violence and/or abuse. While the natural tendency is to point towards stronger state protections, more intervention on behalf survivors of gendered violence, and significant legal reforms, I further argue that we should push back on this framework, especially in light of gender justice goals that are better served by abolitionist and decarceral frameworks that seek to deconstruct notions of a police state. Amna Akbar, for example, discusses an abolitionist 33

COLUMBIA UNDERGRADUATE LAW REVIEW approach in relation to policing to transform the relationship between the state and society; violence is “endemic to police” and all police departments participate in the enforcement of racialized, gendered, and classed violence.38 Katherine Franke’s work on the moral hazards of pursuing LGBTQ+ rights in tandem with the interests of the state also articulates how strategies from certain movements can be co-opted to obscure statist goals and motivations.39 With these frameworks in mind, it is necessary to propose a vision of both negative and positive freedom beyond increased policing and state intervention. This section explores several cases in which police intervention and state action not only failed to prevent gendered violence, but also exacerbated it, punishing survivors simply for surviving. How can we promote a sense of collective liberty that exists beyond the state?

When we examine gendered violence in relation to policing, we see that the most “conscience-shocking” and egregious forms of violence often involve the re-traumatization that the survivor has to endure after attempting to find justice within the confines of the law. Many of these cases cycle through the legal system without ever making it to the Supreme Court as Town of Castle Rock and DeShaney did, and the police are usually the worst perpetrators of additional traumatization and violence. In “An Unbelievable Story of Rape,” journalists Christian Miller and Ken Armstrong investigate and publish the story of a rape survivor named “Marie.”

Marie was raped in her bedroom when she was 18 years old. She was bound, gagged, raped, and asked to shower—the man had done this before with deft expertise. Marie called the Lynwood County Police Department for help but the two investigating detectives found several “inconsistencies” they thought to be evidence that Marie was making the rape up: the order in which Marie had indicated she called a friend after the rape was stated differently from when she had provided a written statement.40 A couple days later, the two male detectives confronted Marie, telling her that there 34

COLUMBIA UNDERGRADUATE LAW REVIEW were inconsistencies and discrepancies in her statement. The story and the evidence didn’t match. The detectives asked why she was making the story up, why she would lie about rape, and, was she “pretty positive or actually positive” that the rape had happened?41

Marie didn’t want to spend time at the police station. She had spent her entire life in the foster care system and had been abused by those who she thought she could trust. Miller and Armstrong recounts how she “flipped the switch…suppressing all the feelings she didn’t know what to do with,” and proceeded to write another statement in which she left “no doubt” that the rape was a lie.42 Later that year, Marie had received a letter from Lynwood County that she had been charged with filing a false report, which was punishable by up to a year in jail. Wanting to put the incident behind her, Marie eventually took a plea deal that required mandatory mental health counseling, supervised probation, and a $500 fine to cover the court’s costs. The criminal citation was signed by one of the detectives who worked on the case, who was “certain” that Marie had lied. “The police had spent a lot of resources chasing that lie.

The law said her lie was a crime. Really, it was as simple as that.”

Two and a half years later, a man named Marc Patrick O’Leary was arrested in Colorado for serial rape.43 He had raped several women in the same fashion he had raped Marie: bound and gagged them, telling them to shower and taking their sheets after. O’Leary was only found due to coincidence: a female police officer in Golden, Colorado, had realized that a case she was working on was similar to a case in her husband’s jurisdiction.

Marie’s case reveals the extent to which state involvement and intervention in acts of gendered violence can perpetuate further violence against survivors. This is not something that police or legal reform will simply solve. Rather, the occupational culture, sexism, and “highly masculine organizational hierarchy” of police form a context that promotes sex discrimination, harassment, and violence against women.44 Policing is a systemic issue of gendered violence 35

COLUMBIA UNDERGRADUATE LAW REVIEW that extends beyond just Lynwood; according to FBI statistics, Marie’s initial case brought to the police was one of the four labeled as “unfounded” by the Lynwood police. From 2008 to 2012, Lynwood classified 10 out of the 47 rapes reported in that county as unfounded, or a staggering 21.3 percent.45 National figures drawn from agencies covering similar-sized populations for false rape accusations is approximately 4.3 percent—Lynwood’s figure was five times higher than this reported average.46 Even if widespread reforms were implemented to encourage police to intervene and fully investigate issues of gendered violence, whether it be the actions of Lenahan’s husband or Marie’s rapist, they simply do not address the root of the cause: why have we allowed the police such a broad swath of agency and power in determining when and why women’s trauma should be believed? The extent to which “police discretion” plays such a prominent role in dictating the amount of negative and positive liberty that a woman should have is the root of the disease, and bad policing or lack thereof are just its core symptoms.

Of course, it is helpful to analyze such symptoms. The bizarre nature in how we treat policing and the criminal legal system as the false bedrocks for justice become even more contradictory when we discuss the issue of police sexual violence. According to a 2015 national-scale study on police sexual misconduct, “Police work is conducive to sexual misconduct. The job affords unique opportunities for rogue police officers to engage in acts of sexual deviance and crimes against citizens they encounter.” This is not only due to the police officers themselves, but also because of “the context of police work—the same framework that provides the basis for legitimate policing.”47 In the same study, criminologists identified 548 cases in which police were arrested for sex-related crimes from 2005 to 2007. The identified cases involved police that were employed by 328 state, local, and special law enforcement agencies located in 265 counties and independent cities spanning 43 states and Washington, D.C.48 Other notably terrible findings include the 36

COLUMBIA UNDERGRADUATE LAW REVIEW fact that survivors of police sexual violence are disproportionately young, with 73 percent of cases studied involving survivors who were less than 18 years of age.49 48 percent of the cases investigated included officers that were off-duty, and more than 25 percent of cases involved an officer who had been named individually as a party defendant in at least one federal civil court action pursuant to 42 U.S.C. § 1983.50 The likelihood that a police officer will lose their job is only 1.2 times greater if the arrested officer had already been sued pursuant to §1983. Other parallel investigations included a study compiled by Buffalo News, which had combed through news reports and court records to compile a database of over 700 credible cases of police sexual misconduct from 2005 to 2015. In fact, police sexual misconduct is so rampant that it generates more citizens than any other factor except for excessive force, and one law enforcement official was involved in a case of sexual abuse or sexual misconduct at least every five days.51

The cases that illuminate this issue highlight that gendered violence exists because of what is deemed as legitimate policing.

Police intrusion into the “private area of freedom” that is supposed to guide any evaluation of constitutional deprivation is ignored, and to a large extent, legalized. Police act alone and remain largely free from direct supervision, commonly encounter vulnerable citizens who are subject to the power and coercive authority granted to police, and operate during hours at night that provide low public visibility.52 Barriers to reporting and the widespread legal doctrine of qualified immunity mean that survivors face an unnecessarily difficult process in holding police accountable.53 Take, for example, the case of 18-year-old Anna Chambers: Anna’s case was widely publicized on BuzzFeed in 2018, after she had been raped by NYPD detectives Eddie Martins and Richard Hall.54 Martins and Hall stopped Anna and her friends for marijuana possession while they off-duty and in their car. Anna’s friends were let go, but Anna was handcuffed, driven away, and placed in the back of a police van, 37

COLUMBIA UNDERGRADUATE LAW REVIEW where the officers had taken turns raping her. A loophole in New York State law permitted the NYPD’s conduct in Anna’s case as legal, and charges against her rapists were dropped due to “credibility issues.”55 Or take the case of Lukasz Skorzewski, a NYPD police officer who failed to properly investigate the sexual assault of a woman named Rachael Stirling. After he allowed Stirling’s rapist to go free, Skorzewski proceeded to botch another sexual assault investigation; he had attempted to rape the victim whose sexual assault he was assigned to investigate (and was subsequently named as a defendant in a §1983 suit filed by that victim).56 From domestic violence victims who themselves were sexually assaulted by the investigating officers,57 to an underage girl who was raped repeatedly by officers investigating the sex trafficking ring she was a part of,58 to police officers who chased an immigrant massage worker to her death,59 gendered violence amongst the police is indeed endemic. As of 2019, thirty-one states had a loophole in their laws that allowed for police officers to legally have consensual sex with individuals in custody,60 despite the obvious imbalances in coercive power that the police ultimately retain.

As Akbar emphasizes, “Policing works differently for differently situated people. Police play a function of social control and regulation along gender, sex, race, and class.”61 Aside from considerations of intersectionality where policing should be framed as both a gendered and racial issue, ensuring collective liberation for women means operating beyond the criminal-legal system where policing is still viewed as a neutralizing force of justice. Many of the cases mentioned above were unveiled or brought to light by journalists. We know of them and seek to remedy their injustice not because they were rendered intelligible through legal claims, criminal complaints, or successfully seeking remedy in a civil liability system in which behavior that “shocks the conscience” is in the eye of the beholder. Many of them were dropped. Any formal conception of liberty within the larger gender justice movement therefore falters 38

COLUMBIA UNDERGRADUATE LAW REVIEW without the necessary analysis of a woman’s existence in a coercive police state.

IV. Conclusion

To be free is not necessarily to only be free from government intrusion. While Berlin’s concepts of negative and positive liberty present a series of contradictions within themselves, they can be helpful to articulate gender justice goals of collective liberation by analyzing how these meanings of liberty become socially embedded through the law. Feminist critiques of positive liberty as requiring a set of baseline conditions to pursue a meaningful life with opportunities and choices can help us build a better conception of freedom. This is not to imply that every action by the state should function as something that it can be constitutionally liable for or that state intervention in issues of gendered violence is absolutely necessary to be free. In the context of Town of Castle Rock, liberty was wielded as a false signifier for freedom from the state; with Marie, the police arm of the state reduced her story to silence.

Instead, I argue for a vision in which we critically question concepts like liberty, freedom, justice, and policing in the context of what goals those terms have been used to carry out, because they are often distorted by our existing discourses on gender and freedom.

39

COLUMBIA UNDERGRADUATE LAW REVIEW Isaiah Berlin, “Two Concepts of Liberty,” Four Essays On Liberty (1958), 2.

Ibid, 4.

3 Ibid, 8.

4 Iris Marion Young, cited in Kelly, Domestic Violence and the Politics of Privacy (2003), 37.

5 Catherine Mackinnon, cited in Kelly, 39.

6 Jessica Lenahan (Gonzales) et al. v United States, Case 12.626, Inter-Am. Comm’n H.R., Report No. 7/98, ¶ 2 (2011).

7 Inter-American Commission on Human Rights (IACHR), American Declaration of the Rights and Duties of Man, 2 May 1948, available at: https://www.refworld. org/docid/3ae6b3710.html [accessed 13 May 2020].

8 Town of Castle Rock v Gonzales, 545 U.S. 748 (2005).

9 Town of Castle Rock v Gonzales, 545 U.S. 748 (2005), 754.

10 Town of Castle Rock v Gonzales, 545 U.S. 748 (2005), 759.

11 Town of Castle Rock v Gonzales, 545 U.S. 748 (2005), 760.

12 Town of Castle Rock v Gonzales, 545 U.S. 748 (2005), 765.

13 Nancy J. Hirschmann, “Berlin, Feminism, and Positive Liberty” in Isaiah Berlin and the Politics of Freedom: Two Concepts of Liberty 50 Years Later, ed. Bruce David Baum and Robert Nichols (Routledge 2013), 196.

14 Ibid.

15 Isaiah Berlin, “Two Concepts of Liberty,” Four Essays On Liberty (1958).

16 Carol Gould, “Retrieving Positive Freedom and Why It Matters” in Isaiah Berlin and the Politics of Freedom: Two Concepts of Liberty 50 Years Later, ed.

Bruce David Baum and Robert Nichols (Routledge 2013).

17 Laura Oren, “Some Thoughts on the State-Created Danger Doctrine: Deshaney is Still Wrong and Castle Rock is More of the Same,” Temple Political & Civil Rights Law Review 16, 1 (2006), 53 18 DeShaney v Winnebago County Department of Social Services, 489 U.S. 189 (7th Cir. 1989).

19 DeShaney v Winnebago County Department of Social Services, 489 U.S. 189 (7th Cir. 1989), 1000.

20 Ibid, 1002.

21 Ibid, 1003.

22 Isaiah Berlin, “Two Concepts of Liberty,” Four Essays On Liberty (1958), 3.

23 Iris Marion Young, cited in Kelly, Domestic Violence and the Politics of Privacy (2003), 37.

24 Laura Oren, “Some Thoughts on the State-Created Danger Doctrine: DeShaney is Still Wrong and Castle Rock is More of the Same,” 58.

25 Carol Gould, “Retrieving Positive Freedom and Why It Matters” in Isaiah 1 2

40

COLUMBIA UNDERGRADUATE LAW REVIEW Berlin and the Politics of Freedom: Two Concepts of Liberty 50 Years Later, ed.

Bruce David Baum and Robert Nichols (Routledge 2013), 109.

26 DeShaney v Winnebago County Department of Social Services, 489 U.S. 189 (7th Cir. 1989), 1001.

27 Ibid.

28 Ibid, 1006.

29 Ibid, 1008.

30 Ibid.

31 Ibid.

32 Laura Oren, “Some Thoughts on the State-Created Danger Doctrine: DeShaney is Still Wrong and Castle Rock is More of the Same,” 61.

33 Carol Gould, “Retrieving Positive Freedom and Why It Matters” in Isaiah Berlin and the Politics of Freedom: Two Concepts of Liberty 50 Years Later, ed.

Bruce David Baum and Robert Nichols (Routledge 2013), 110.

34 Ibid.

35 DeShaney v Winnebago County Department of Social Services, 489 U.S. 189 (7th Cir. 1989), 1003.

36 Dan Margolin Cecka, “It’s Time for the Fourth Circuit to Rethink DeShaney” (2016), 697.

37 Laura Oren, “Some Thoughts on the State-Created Danger Doctrine: DeShaney is Still Wrong and Castle Rock is More of the Same,” 54.

38 Amna Akbar, “Toward a Radical Imagination of Law,” 93 New York University Law Review 405 (2018), 435 39 Katherine Francke, “Dating the State: The Moral Hazards of Winning Gay Rights,” 44 Columbia Human Rights Law Review 4 (2012), 1-46.

40 Christian T. Miller and Ken Armstrong, “An Unbelievable Story of Rape,” ProPublica (2015), accessed 13 May 2020, https://www.propublica.org/article/ false-rape-accusations-an-unbelievable-story.

41 Ibid.

42 Ibid.

43 Ibid.

44 Philip Matthew Sr. Stinson, et al, “Police Sexual Misconduct: A National Scale Study of Arrested Officers,” 26 Criminal Justice Policy Review (2015).

45 Christian T. Miller and Ken Armstrong, “An Unbelievable Story of Rape,” ProPublica (2015), accessed 13 May 2020, https://www.propublica.org/article/ false-rape-accusations-an-unbelievable-story.

46 Ibid.

47 Philip Matthew Sr. Stinson, et al, “Police Sexual Misconduct: A National Scale Study of Arrested Officers,” 26 Criminal Justice Policy Review (2015), 665-666.

41

COLUMBIA UNDERGRADUATE LAW REVIEW Ibid, 673.

Ibid.

50 Ibid.

51 Matthew Spina, “When a protector becomes a predator,” Buffalo News (2013), accessed 13 May 2020, https://s3.amazonaws.com/bncore/projects/abusing-thelaw/index.html.

52 Philip Matthew Sr. Stinson, et al, “Police Sexual Misconduct: A National Scale Study of Arrested Officers,” 26 Criminal Justice Policy Review (2015), 665.

53 Ibid, 666.

54 Albert Samaha, “An 18-Year-Old Said She Was Raped While In Police Custody.

The Officers Say She Consented,” BuzzFeed News (2018), accessed 13 May 2020, https://www.buzzfeednews.com/article/albertsamaha/this-teenager-accused-twoon-duty-cops-of-rape-she-had-no?bfsource=relatedmanual.

55 Claudia Koerner, “Two NYPD Officers Were Accused Of Raping A Teen Under Arrest. The Charges Have Been Dropped,” BuzzFeed News (2019), accessed 13 May 2020, https://www.buzzfeednews.com/article/claudiakoerner/annachambers-nypd-rape-charges-officers-dropped.

56 Meg O’Connor, “IT WAS ALMOST WORSE THAN THE INCIDENT ITSELF,” The Appeal (2019), accessed 13 May 2020, https://theappeal.org/itwas-almost-worse-than-the-incident-itself/.

57 Associated Press, “Ex-deputy gets no jail time in on-the-job sex assault case,” WRDW-TV News 12 (2017), accessed 13 May 2020, https://www.wrdw. com/content/news/SLED-investigating-after-Orangeburg-County-deputyfired-384530171.html.

58 Darwin Bond Graham, “Cases Against Police Officers Who Sexually Exploited Underage Girl Known as Celeste Guap Fall Apart,” East Bay Express (2017), accessed 13 May 2020, https://www.eastbayexpress.com/SevenDays/ archives/2017/10/05/cases-against-police-officers-who-sexually-exploitedunderage-girl-known-as-celeste-guap-fall-apart.

59 Dan Barry and Jeffrey Singer, “The Case of Jane Doe Ponytail” New York Times (2018), accessed 13 May 2020, https://www.nytimes.com/interactive/2018/10/11/ nyregion/sex-workers-massage-parlor.html.

60 Katherine A. Heil, “The Fuzz(y) Lines of Consent: Police Sexual Misconduct with Detainees,” South Carolina Law Review (2019), 70.

61 Amna Akbar, “Toward a Radical Imagination of Law,” 93 New York University Law Review 405 (2018), 443.

48 49

42

COLUMBIA UNDERGRADUATE LAW REVIEW Works Cited Akbar, Amna N. “Toward a Radical Imagination of Law,” New York University

Law Review 93, no. 405 (June 2018): 405-479.

Associated Press. “Ex-deputy gets no jail time in on-the-job sex assault case.”

WRDW-12. Gray Digital Media. September 14, 2017. https://www. wrdw.com/content/news/SLED-investigating-after-

Orangeburg-County-dep uty-fired-384530171.html Berlin, Isaiah. “Two Concepts of Liberty” in Four Essays on Liberty, 118–72.

Oxford, England: Oxford University Press, 1969.

Graham, Darwin B. “Cases Against Police Officers Who Sexually Exploited

Underage Girl Known as Celeste Guap Fall Apart.” East Bay Express.

October 15 2017. https://www.eastbayexpress.com/SevenDays/

archives/2017/10/05/cases-against-police-officers-who-sexually- exploited-underage-girl-known-as-celeste-guap-fall-apart Cecka, Dan Margolin. “It’s Time for the Fourth Circuit to Rethink DeShaney,”

South Carolina Law Review 67, no. 4 (2016).

Dan Barry and Jeffrey E. Singer. “The Case of Jane Doe Ponytail.” New York

Times. October 16 2018. https://www.nytimes.com/ interactive/2018/10/11/nyregion/sex-workers-massage-parlor.html DeShaney v Winnebago County, 489 U.S. 189 (7th Cir 1989).

Franke, Katherine. “Dating The State: The Moral Hazards of Winning Gay Rights,” Columbia Human Rights Law Review 44, no. 1 (2012): 1-46.

Gould, Carol. “Retrieving Positive Freedom and Why It Matters” in Isaiah

Berlin and the Politics of Freedom: Two Concepts of Liberty 50 Years Later (2013).

Hirschmann, Nancy J. “Berlin, Feminism, and Positive Liberty” in Isaiah Berlin

and the Politics of Freedom: Two Concepts of Liberty 50 Years Later,

ed. Robert Nichols and Bruce Baum. (Routledge, 2013).

Heil, Katherine A. “The Fuzz(y) Lines of Consent: Police Sexual Misconduct

with Detainees,” South Carolina Law Review 70 (2019).

Kelly, Kristin Anne. Domestic Violence and the Politics of Privacy. Ithaca, NY:

Cornell University Press, 2003.

Koerner, Claudia. “Two NYPD Officers Were Accused Of Raping A Teen Under

Arrest. The Charges Have Been Dropped.” BuzzFeed News. BuzzFeed.

March 6, 2019. https://www.buzzfeednews.com/article/claudiakoerner/

anna-chambers-nypd-rape-charges-officers-dropped O’Connor, Meg. “‘IT WAS ALMOST WORSE THAN THE INCIDENT ITSELF.’” The Appeal. April 23, 2019. https://theappeal.org/it-was-

43

COLUMBIA UNDERGRADUATE LAW REVIEW almost-worse-than-the-incident-itself/ Oren, Laura. “Some Thoughts on the State-Created Danger Doctrine: Deshaney

is Still Wrong and Castle Rock is More of the Same,” Temple Political

& Civil Rights Law Review 16, no. 1 (Fall 2006), 47-64.

Miller, Christian T., and Ken Armstrong. “An Unbelievable Story of Rape.”

ProPublica. December 16, 2015. https://www.propublica.org/ article/false-rape-accusations-an-unbelievable-story.

Philip Matthew Sr. Stinson; John Liederbach; Steven L. Jr. Brewer; Brooke E.

Mathna,”Police Sexual Misconduct: A National Scale Study of Arrested

Officers,” Criminal Justice Policy Review No. 26, 665 (2015).

Samaha, Albert. “An 18-Year-Old Said She Was Raped While In Police Custody.

The Officers Say She Consented.” BuzzFeed News. BuzzFeed.

February 7, 2018. https://www.buzzfeednews.com/article/albertsamaha/

this-teenager-accused-two-on-duty- cops-of-rape-she- hadno?bfsource=

related manual Spina, Matthew. “When a protector becomes a predator.” The Buffalo News.

Buffalo News, November 2013. https://s3.amazonaws.com/bncore/ projects/abusing-the-law/index.html.

Town of Castle Rock v Gonzales, 545 U.S. 748 (2005).

44