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On November 7, voters in Alabama erased from that state's Constitution a provision dating from 1901 that declared that "the legislature shall never pass any law to authorize or legalize any marriage between any white person and a Negro, or descendant of a Negro." This declaration represented in part a desire by white supremacists to express as fully as possible their intention to expunge the racially egalitarian symbols, hopes and reforms of Reconstruction. Although Alabama had never enacted a law expressly authorizing interracial marriage, in 1872 the state's Supreme Court did invalidate the law that prohibited such unions. But it promptly reversed itself in 1877 when white supremacists regained power. The Alabama Constitution's disapproval of interracial marriage, however, had still deeper roots. It stemmed from the presumption that white men had the authority to dictate whom, in racial terms, a person could and could not marry. It was also rooted in the belief that certain segments of the population were simply too degraded to be eligible as partners in marriage with whites. At one point or another, forty states prohibited marriage across racial lines. In all of them blacks were stigmatized as matrimonial untouchables. In several, "Mongolians" (people of Japanese or Chinese ancestry), "Malays" (Filipinos) and Native Americans were also placed beyond the pale of acceptability.
Rationales for barring interracial marriage are useful to consider, especially since some of them echo so resonantly justifications voiced today by defenders of prohibitions against same-sex marriage. One rationale for barring interracial marriages was that the progeny of such matches would be incapable of procreating. Another was that God did not intend for the races to mix. Another was that colored people, especially blacks, are irredeemably inferior to whites and pose a terrible risk of contamination. The Negrophobic Thomas Dixon spoke for many white supremacists when he warned in his novel The Leopard's Spots that "this Republic can have no future if racial lines are broken and its proud citizenry sinks to the level of a mongrel breed." A single drop of Negro blood, he maintained apocalyptically, "kinks the hair, flattens the nose, then the lip, puts out the light of intellect, and lights the fires of brutal passions."
Although opponents of prohibitions on interracial marriage have waged struggles in many forums (e.g., academia, the churches, journalism), two in particular have been decisive. One is the courtroom. In 1967 in the most aptly titled case in American history--Loving v. The Commonwealth of Virginia--the United States Supreme Court ruled that prohibitions against interracial marriage violated the equal protection and due process clauses of the Fourteenth Amendment. (Although much credit is lavished on the Court's decision, it bears noting that nineteen years earlier, in 1948, the Supreme Court of California had reached the same conclusion in an extraordinary, albeit neglected, opinion by Justice Roger Traynor.) When the federal Supreme Court struck down Jim Crow laws at the marriage altar, it relied on the massive change in public attitudes reflected and nourished by Brown v. Board of Education (1954), Martin Luther King Jr.'s "I Have A Dream" address (1963), the Civil Rights Act (1964) and the Voting Rights Act (1965). The Court also relied on the fact that by 1967, only sixteen states, in one region of the country, continued to retain laws prohibiting interracial marriage. This highlights the importance of the second major forum in which opponents of racial bars pressed their struggle: state legislatures. Between World War II and the Civil Rights Revolution, scores of state legislatures repealed bans against interracial marriage, thereby laying the moral, social and political groundwork for the Loving decision. Rarely will any court truly be a pioneer. Much more typically judges act in support of a development that is already well under way.
Unlike opponents of Brown v. Board of Education, antagonists of Loving were unable to mount anything like "massive resistance." They neither rioted, nor promulgated Congressional manifestoes condemning the Court, nor closed down marriage bureaus to prevent the desegregation of matrimony. There was, however, some opposition. In 1970, for example, a judge near Fort McClellan, Alabama, denied on racial grounds a marriage license to a white soldier and his black fiancée. This prompted a lawsuit initiated by the US Justice Department that led to the invalidation of Alabama's statute prohibiting interracial marriage. Yet the Alabama constitutional provision prohibiting the enactment of any law expressly authorizing black-white interracial marriage remained intact until the recent referendum.
That an expression of official opposition to interracial marriage remained a part of the Alabama Constitution for so long reflects the fear and loathing of black-white intimacy that remains a potent force in American culture. Sobering, too, was the closeness of the vote; 40 percent of the Alabama electorate voted against removing the obnoxious prohibition. Still, given the rootedness of segregation at the marriage altar, the ultimate outcome of the referendum should be applauded. The complete erasure of state-sponsored stigmatization of interracial marriage is an important achievement in our struggle for racial justice and harmony.
Do we want a Vice President who endorses illegal detention and torture of Palestinians? Anthony Cordesman, a national security type frequently deployed as a television pundit, recently posted a paper on the website for the Washington-based Center for Strategic and International Studies recommending that Yasir Arafat's Palestinian Authority engage in just these practices to repress the latest intifada.
"Halt civil violence," Cordesman counsels, "even if it means using excessive force by the standards of Western police forces." But this is only a warm-up. "Halt terrorist and paramilitary action by Hamas and Islamic Jihad," Cordesman continues, "even if this means interrogations, detentions, and trials that are too rapid and lack due process." Still not clear enough. "Effective counter-terrorism relies on interrogation methods that border on psychological and/or physical torture, arrests and detention that violate the normal rights of privacy, [with] levels of violence in making arrests that are unacceptable in civil cases, and measures that involve the innocent (or at least the not provably directly guilty) in arrests and penalties."
In other words, protected only by the weasel phrase "border on," Cordesman urges that Israel's security forces return to the torture techniques that were finally abandoned under High Court order a year ago. Joe Lieberman is one of the senators belonging to the CSIS Middle East Task Force. Thus far, despite explicit requests for comment, he has not disavowed Cordesman's prescriptions, which have been condemned by Amnesty International USA.
For two months now Israel has laid barbarous siege to Palestinians throughout the occupied territories. The Israeli Army is busily cordoning Palestinian areas behind trenches and barbed wire, making Gaza and the West Bank one vast prison--or rather, many separate prisons, all barred from communicating with one another.
The policy of "closure," initiated after the Gulf War, continued unabated during the so-called Oslo peace process, in violation of Israeli government obligations. The strategy of apartheid and imprisonment is now accelerating, accompanied by bombardment of heavily populated areas, as well as incessant attacks from settlers (all courtesy of the US government, as always, with vast new military subventions rolling in after the Al-Aksa intifada began).
Even the relatively better-informed mainstream accounts fail to convey the brutality of this policy. There are a number of excellent news outlets for those who want unjaundiced reporting. The website for Middle East Research and Information Project is trustworthy (www.merip.org), as is the Electronic Intifada (electronicintifada.net/new.html). For the latter, the intro essay by Nigel Parry gives a useful overview of media coverage. Electronic Intifada also has links to other sites, as does ZNet's Mideast Watch (www.zmag.org/meastwatch/meastwat.htm). Particularly comprehensive is Birzeit University's (www.birzeit.edu/links).
Five fine specimens of Meleagris gallopavo--wild turkey to you--wandered onto my property here in Humboldt County, Northern California, a few days ago. I assume they forgot to check the calendar. Under California fish and game regs, you can shoot them legally for two weeks around Thanksgiving. Out came my 12-gauge, and I loosed off a shot that at some 100 feet did no discernible damage, and after a brief bout of what-the-hell-was-that the turkeys continued to forage. A fusillade of two more shots finally brought down a fourteen-pounder. I hung him for four days, plucked him and by Thanksgiving's end he was history. This was all easier than sporting manuals suggest, where hunters take enormous trouble to decoy the turkeys with fake gobbles.
Wild turkeys haven't been seen in California since earlier in the Cenozoic era, but in recent years two ranchers in my valley imported a few and now they've begun to appear in our neighborhood in Humboldt County in substantial numbers. I've heard reports of flocks of up to a hundred wild turkeys fifteen miles up the Mattole River around Honeydew, an impressive quantity though still far short of the thousand birds counted in one day by two hunters in New England in the 1630s.
The speed with which New World foods spread across Europe and Asia is astounding. Cortez brought turkeys back to Europe from Mexico, and by the 1530s they were well-known in Germany and England. The Puritans had domestic turkeys with them in New England, gazing out at their wild relatives, offered by the Indians who regarded them as somewhat second-rate as food.
Of course, wild turkeys have many enemies aside from the Beast called Man. There are swaths of Humboldt and Mendocino counties where coyotes and mountain lions now hold near-exclusive sway. Ranchers running sheep used to hold off the coyotes with M-80 poison-gas canisters that exploded at muzzle touch, but these are now illegal, and the alternatives are either trapping, which is a difficult and time-consuming job, or getting Great Pyrenees dogs to guard the flock. But the coyotes are crafty and wait till the sheep have scattered, then prey on the unguarded half.
Gabbing on the phone to my friend Ford Roosevelt, who lives in Los Angeles, I mentioned my turkey kill, and he reacted with revulsion, not so much to the fate of Meleagris gallopavo but to the fact that I have a shotgun at all. I told Ford that it was this sort of city-slicker foolishness that cost Gore states like West Virginia, Tennessee, Arkansas and Ohio. Ford, a grandson of FDR, then disclosed that the Democratic National Committee had asked him to campaign in various states, including West Virginia. "Well Ford, didn't you find that the gun issue was on people's minds?" "Yes, as a matter of fact. I was talking to some miners and they brought it up. I told them that as far as I was concerned, guns should be banned altogether. They weren't pleased." "So it was you, Ford, who lost West Virginia." He didn't seem contrite.
While partisans debate whether a victorious George W. Bush would nominate Supreme Court Justices who would overturn Roe v.
A corporate antiviolence program targets students who don't fit in.
As the media obsessed over the seesaw presidential poll, voters across the country quietly made their choices on more than 200 disparate ballot measures and initiatives. For progressives the results are--as usual--mixed.
First the bad news: Three campaign finance reform initiatives went the wrong way. Clean-money measures providing for full public financing were thumped in Missouri and Oregon. Similar measures had been passed in previous years by voters in Maine, Massachusetts and Arizona as well as by the legislature in Vermont--but this time around powerful, well-financed business lobbies weighed in, and dirty money beat clean money. In Oregon opponents ran an effective (and expensive) radio campaign highlighting the out-of-state financial support for the reform, and it raised the specter of extremists running for office if it passed.
In Missouri corporate opponents--including Anheuser-Busch, KC Power & Light, Hallmark Cards and the Missouri Association of Realtors--poured hundreds of thousands into their victorious antireform campaign. Californians, meanwhile, approved Proposition 34, billed as campaign reform but actually cooked up by the establishment to block real reform. The returns on these three measures should compel campaign finance reform activists to rethink their strategies. These are significant and stinging defeats.
The good news is that the failed drug war was a loser in five of seven related measures nationwide. Medical marijuana initiatives passed in Colorado and Nevada (although a full marijuana-legalization bill failed in Alaska). Oregon and Utah voted to reform draconian drug forfeiture laws. And in California, Proposition 36, providing treatment instead of jail for first- and second-time drug offenders, passed easily. But a similar proposition failed in Massachusetts (which also refused to approve a universal healthcare proposal).
Another bright spot was public education. Voucher measures in California and Michigan were beaten by wide margins. Silicon Valley entrepreneur Tim Draper put up millions for the California proposal--to no avail. California voters also approved a measure that makes passage of school bonds easier. But bilingual education, banned in the Golden State two years ago, was also thrown out by Arizona voters. As he did in California, businessman Ron Unz fathered and funded the Arizona measure.
Colorado voters defeated the so-called informed consent measure on abortion, but Arizona and Nebraska approved a ban on same-sex marriages and civil unions. In Maine a measure to protect gays from discrimination was defeated. In Oregon the notorious Measure 9, which outlaws "teaching" homosexuality in schools, failed. Oregonians also rejected two antiunion "paycheck protection" measures, which the state labor federation had vigorously fought.
DNA testing can convict the guilty; it can also destroy the privacy of millions.
In New Mexico, communists who fail to register their party affiliation with the state commit a felony. Under New Mexico's DNA databanking law, if they are caught they are required to submit a DNA sample to the department of public safety. In Idaho, consensual sodomy with a partner other than your spouse constitutes a sex-crime felony. Those unfortunate enough to be caught in the act are similarly required by law to submit a tissue sample to the state's DNA databank for the purposes of preventing future sex crimes. And if Governor George Pataki is successful in the next legislative session, New York will begin collecting genetic material from any person convicted of a misdemeanor, such as resisting arrest or disorderly conduct as a result of peaceful civil disobedience.
In an age of biotechnology and computers, we are all but a needle-stick away from disclosing hereditary-disease susceptibilities, familial relationships and identifying information. Anyone who values privacy should therefore be concerned that US law-enforcement agencies are amassing ever larger portions of the general population's DNA while neglecting to implement measures that would protect the privacy and presumptive innocence of citizens. And because DNA evidence is currently enjoying an unprecedented degree of bipartisan enthusiasm, these gradual developments have tended to be sheltered from the criticism that might otherwise confront such policies.
Not that DNA evidence's celebrity isn't well deserved. It is many rape victims' best hope for identifying their assailants and law enforcement's most penetrating method of apprehending serial offenders. It can be credited with triggering a re-examination of the nation's capital punishment system by exonerating eight death-row inmates. Like its predecessor, the fingerprint, DNA profiles are a reliable means of identifying individuals (except in the case of identical twins). But glib analogies to fingerprints obscure important differences. DNA samples can reveal far more information than fingerprints, including sensitive medical conditions, traits or a person's biological parentage. In addition, while fingerprints are unique to every individual, genetic profiles are partially shared among blood relatives. Thus, databanks contain identifying information on nonoffending relatives of people explicitly covered by databanking statutes. Finally, because we shed our genetic calling cards in a trail of hair follicles, skin flecks, saliva aerosols and finger smudges, DNA can also provide a trace of our activities.
DNA databanks are premised on statistics indicating that individuals convicted of a serious violent offense often commit other violent offenses that leave behind incriminating DNA. Tissue samples, usually in the form of a blood sample or cheek swab, are thus collected from offenders covered by their state's databank laws and are analyzed using a technique called "profiling," which detects genetic variations among individuals that, at least as currently understood by geneticists, have no biological function. The resulting data are then computerized so that profiles produced from crime-scene samples can be compared with those already in the database, allowing authorities to eliminate certain suspects or target those whose profiles match. In effect, databanks provide a means of genetically frisking anyone who has ever committed a covered offense for any crime in which DNA has been recovered.
As of June 1998 all fifty states had enacted statutes authorizing state and local law-enforcement agencies to operate criminal DNA databases and to pool their DNA profiles into a national FBI-operated database called CODIS (Combined DNA Identification System). Though the earliest laws targeted convicted violent sexual felons, civil libertarians looked to the history of Social Security numbers, fingerprinting and drug-testing to warn of an inevitable migration of the technique from convict to suspect terrain. A decade later, as many states have passed laws to cover new offender categories, the Cassandras appear to have been vindicated. Delaware, for instance, requires submission of genetic samples for all those who have committed offenses against children, which include selling tobacco or tattooing minors without the consent of a guardian. Twenty-three states cover certain categories of misdemeanors, and seven states have enacted legislation that would require DNA submission for any felony, which extends DNA databanking into realms such as perjury, larceny, bribery and fraud. Thus, in addition to New Mexico's statute covering unregistered communists, Alabama's code covers tax evaders and Virginia's targets people who deface brands or marks on timber. Experts like CODIS program director Steve Niezgoda have predicted that all states will eventually amend their statutes to cover all felonies; four states have already done so, and another three have recently considered or will consider such an expansion in their next legislative sessions. Among these three, New York's proposal stands out as by far the nation's most comprehensive, targeting all convicted felons and class-A misdemeanants.
DNA databanking laws are furthermore part of the ferment that is corroding the century-old juvenile justice system that treats minors as a category of offenders separate from adults. More than half of all states authorize inclusion of DNA profiles collected from juveniles in their databanks. In contrast to the convention of sealing or erasing juvenile criminal records after a period of time--a practice grounded on a rehabilitative ideal--none of the statutes require states to remove juvenile DNA profiles from their databanks, and one (Arizona's) expressly prohibits their removal. Several states have revised their original legislation to cover juvenile offenders as well. The spread of DNA databanking to minors is especially troubling when considered against the racial inequities that plague the juvenile justice system. According to Vincent Schiraldi, president of the Center on Juvenile and Criminal Justice, "When you control for poverty, white and black [teens] commit the same amount of violent crime, [but] blacks are arrested at four times the rate of whites and imprisoned at seven times the rate of whites. So don't think for a second this databank will be race-neutral. This policy will grossly overrepresent criminal behavior by blacks and exacerbate disparities in incarceration because [databanks are] going to be used against people."
An indirect consequence of expanding DNA databanks is their partial coverage of a larger proportion of nonoffending relatives as well. Because individuals share portions of their DNA with biological relatives--half in the case of siblings, parents and children--an incomplete match between a databanked person's profile and that of a crime-scene sample might lead investigators to question an individual's immediate family. The effect of such profiling by proxy is that identifying information about nonoffenders is present in criminal databank systems as well; in effect, if you have a relative whose profile has been databanked, you're likely to be partially genetically frisked as well.
A critical unresolved question about current databanking practices concerns what law-enforcement agencies actually do with their frozen vials of human tissue. The human genome contains approximately 100,000 different genes, many of which are associated with specific illnesses. Though DNA profiles have few applications beyond linking individuals to biological specimens, the actual tissue samples submitted by offenders could in principle be analyzed for genetic traits ranging from sickle-cell anemia to schizophrenia. Since evolving typing techniques may one day outmode profiles currently being entered into computers, more than half of US states are authorized or required by law to archive their samples so they can be retested. This sustains the possibility that samples may eventually be used for purposes other than profiling.
Most statutes restrict sample use to "law enforcement"--a term whose broadness in this context can only be described as oceanic. Twenty states allow law-enforcement agencies to use samples for research on improving forensic techniques, which could mean searching banked DNA samples for genetic predictors of recidivism, pedophilia or aggression. One Massachusetts legislator publicly advocated such a use, and Tom Callaghan, program manager of the FBI's Federal Convicted Offender DNA Database, refused to rule out such a possibility when pressed at a National Institute of Justice Symposium in September 1999. Moreover, tissue repositories created by databanks would provide genetics researchers with congenial waters in which to trawl for genes thought to be involved in criminal behavior. Alabama's databanking law brushes perilously close to this by authorizing release of anonymous DNA population data collected by law-enforcement authorities to "assist in other humanitarian endeavors including, but not limited to, educational research or medical research or development."
Experimenting with offender DNA in this way would violate basic tenets of biomedical ethics by using tissues that were not obtained by consent for purposes that arguably run counter to the interests of the research subject. "If [law-enforcement authorities] want to do research," argues Boston University bioethicist George Annas, "they should follow the same rules everyone else has to follow in terms of informed consent and privacy.... Criminals have privacy rights like everyone else." As such, using databanked samples for research without consent also runs counter to recommendations by the American College of Medical Genetics.
Such research authorizations are especially troubling in light of this nation's checkered history of experimentation on prisoners. In 1875 social reformer and prison inspector Richard Dugdale wrote his famous study of the Jukes family after he noticed a disproportionate number of inmates with that last name. The availability of banked criminals' tissues may prove a valuable resource should society's interest in genetic explanations for social ills be renewed.
Legal challenges of DNA database laws have generally failed and are therefore unlikely to stem their widening sweep. Practices in Britain, the first country to enlist DNA in its crime-fighting cavalry, may portend dramatically widened use of databanking in the United States. Britain's Forensic Science Service is authorized to collect DNA samples from anyone questioned about or suspected of any offense for which a person could be detained. As of July 1999, England had collected 547,000 DNA samples; the effort was projected to reach 30 percent of British men eventually. In addition, England has conducted at least eighty "intelligence-based screens"--the official term for what is colloquially called a "genetic sweep"--in which the general population is asked to submit DNA samples to help police investigate a particular crime. Although samples are provided voluntarily, social pressures, heavy media coverage and the concern that failure to submit a sample may itself invoke police suspicion undermine the notion of submissions being truly consensual. Other countries, including Canada and Germany, have conducted similar sweeps, and while some argue that the Fourth Amendment would probably bar such practices in the United States, privacy watchdogs like New York Civil Liberties Union's executive director Norman Siegel caution that "Fourth Amendment challenges [of databanks] have not been successful; these are the only reference points we have [for predicting how courts will rule on genetic sweeps], and they're not promising."
The next battle between civil libertarians and law-enforcement authorities concerning DNA databanking is likely to concern the leap from profiling convicted felons to arrestees. Former NYPD chief Howard Safir has championed arrestee profiling, and US Attorney General Janet Reno has begun to explore the implications of such a policy by querying a National Institute of Justice commission. Arrestee profiling would dramatically broaden the reach of DNA databanking and, if not subject to careful restrictions, would empower law-enforcement authorities to arrest people for minor offenses, collect a tissue sample and search their databases for a match between the arrestee's profile and another crime-scene sample. Despite widespread enthusiasm in law-enforcement circles, profiling on such a scale isn't likely to be implemented anytime soon, given the backlog of tissue samples awaiting profile analysis and the high costs (at least $100 per sample). Nevertheless, one state (Louisiana) profiles arrestees for sexual offenses, and advancing automation technologies are likely to erode these fiscal barriers.
Though this is reason for despair among privacy advocates, there are a few hopeful signs among the various statutes. Twenty-seven states (and the federal government), for example, prohibit disclosure of genetic materials or information to unauthorized third parties. Wisconsin requires that law-enforcement authorities eliminate DNA samples of convicted persons after profiling is complete, and six states (Indiana, New Hampshire, Rhode Island, Texas, Vermont and Wyoming) restrict what authorities can do with collected DNA by prohibiting analysis of genetic mutations that could predict a person's traits. But in an environment where the political leaders most likely to raise objections to such policies are often silenced by a fear of appearing to be soft on crime, the stability of these protections remains to be seen.
Imagining a fair and protective system for using DNA evidence in the criminal justice system isn't all that difficult. People claiming innocence should be given opportunities to volunteer DNA to clear their name. For them--and more broadly for the credibility of the criminal justice system--DNA forensic technology may be the only life vest within reach. Upon overturning a conviction, volunteered DNA samples and profiles should be promptly destroyed, preserving the individual's presumptive innocence. For people convicted of serious violent offenses and beyond the reach of such exculpatory evidence, however, the trade-off between privacy and public interest may tilt toward favoring a DNA databanking system with strong privacy protections, including sample destruction after profiling and prohibitions on uses other than comparing profiles with those collected from crime scenes. And finally, to protect the presumptive innocence of convicted offenders' family members, states should impose stringent requirements for when a match between a crime-scene sample and a databanked profile can trigger an investigation.
Privacy is a zero-sum entity: The extension of law-enforcement authorities' genetic gaze comes directly at the expense of an individual's power to withhold such information. Where most human DNA handling once occurred in medical clinics and research laboratories--institutions that are generally subject to public oversight and cautious (if imperfect) ethical review--DNA has now entered a territory not particularly distinguished for its ethical circumspection. States are not providing many reasons for the public to be confident that they are taking these concerns seriously; perhaps of even greater concern, negligence in protecting the privacy of offenders and criminal suspects may acclimate a public to weak protections of genetic materials. As the predictive powers of genetic technologies are refined, this could have grievous consequences for everyone.
When the history of this year's presidential campaign is written, the addiction of both Bush and Gore to the obsolete politics of capital punishment will rank high in the annals of moral insensibility and cowardice. In the final debate they fell all over each other agreeing that the death penalty serves as a deterrent to murder. Never mind the polls showing a steadily eroding public support for it and growing alarm about tainted convictions. Even Janet Reno admitted a few months ago that "I have inquired for most of my adult life about studies that might show the death penalty is a deterrent, and I have not seen any research that would substantiate that point."
Just how remote the capital-punishment rhetoric of this campaign is from reality is suggested by a ruling from the Court of Appeals for the Fifth Circuit in the case of Calvin Burdine, who sits on death row in Huntsville, Texas. Burdine's court-appointed lawyer, Joe Cannon, slept through long stretches of his trial, a practice frequently ratified by Texas courts [see Bruce Shapiro, "Sleeping Lawyer Syndrome," April 7, 1997]. Federal District Judge David Hittner threw out Burdine's conviction, but on October 27 a Fifth Circuit appellate panel reinstated it. The two-judge majority--including Judge Edith Jones, a favorite Republican prospect for the Supreme Court--claimed that the record failed to show whether the lawyer's naps came during "critical" phases of the life-or-death proceeding. The panel's lone dissenter, Judge Fortunato Benavides, wrote that the circumstance of Burdine's trial "shocks the conscience."
What is conscience-shocking is not just Sleeping Joe Cannon but the entire capital-justice apparatus. Recently the Quixote Center of Maryland released a dramatic study documenting sixteen people executed in six states, despite late-appearing evidence questioning their guilt or the exposure of massively unfair proceedings. A typical case in the report is that of Brian Baldwin, executed in Alabama in June 1999, even though his confession was coerced, his court-appointed lawyer never conducted an investigation, a co-defendant later confessed and exonerated Baldwin, and an Alabama court found that the prosecutor routinely practiced "deliberate racial discrimination."
Clearly, we need a national timeout on executions. Thirty-five cities nationwide--most recently Greensboro and five other municipalities in conservative North Carolina--have endorsed such a moratorium. As legal scholar Anthony Amsterdam said in October in his keynote address to the American Bar Association's annual convention, the system is "fatally unjust and prone to error." And that also applies to the federal court system, in which a recent study showed widespread racial bias in death sentences. The first federal execution since the Kennedy years is set for December unless President Clinton intervenes, as he certainly should. Senators Carl Levin and Russ Feingold and Representative Jesse Jackson Jr. have introduced legislation that, in varying ways, would put executions on hold. Their bills deserve vigorous support.
A postscript to the Bush-Gore deterrence theory: According to the FBI's Uniform Crime Reports, released in October, while violent crime is declining nationwide, it is up in the execution capital of the country, Texas.
In their 1996 book The Next War, former Secretary of Defense Caspar Weinberger and Peter Schweitzer concoct some troubling scenarios they imagine could confront the United States. One is with Mexico: It's 1999, and a radical nationalist comes to power with the assistance of drug traffickers, resulting in a flood of migrants and drugs across the US boundary. In response, the Pentagon sends 60,000 troops to the border region. Tensions between the two countries mount over the next few years, leading to a full-scale US invasion of Mexico that restores law and order within six months. In constructing this nightmare scenario, the authors draw on a long history of depicting undesired immigrants as invading hordes and the international boundary as a line of defense. Peter Andreas recounts this hawkish vision in his provocative and highly persuasive Border Games: Policing the US-Mexico Divide. He argues that predictions of an inevitable march toward greater levels of militarization in the region--of which the Weinberger/Schweitzer vision is the most extreme--ignore the necessity of maintaining a porous boundary because of the significant and intensifying levels of economic integration between the United States and Mexico.
Still, as part of the US government's war on drugs and "illegal" immigrants in the border region, the enforcement regime has grown dramatically over the past two decades, as chronicled by Andreas. The antidrug budget of the Immigration and Naturalization Service, for example, rose 164 percent between fiscal years 1990 and 1997, while the overall budget for the INS nearly tripled between FY 1993 and 1999, from $1.5 billion to $4.2 billion, with border enforcement the biggest growth area. At the same time, transboundary trade has reached unprecedented heights because of the 1994 implementation of NAFTA. This exacerbates the challenge of "enforcement." As a 1999 government report cautioned, "Rapidly growing commerce between the United States and Mexico will complicate our efforts to keep drugs out of cross-border traffic." With a daily average of 220,000 vehicles now crossing into the United States from Mexico--and only nine large tractor-trailers loaded with cocaine required to satisfy annual domestic demand in the United States--the task facing US authorities is daunting.
Given such practical contradictions, it's the creation of an image of boundary control that has been most significant. As Andreas explains--and this is his well-written book's central point--the escalation of border enforcement is less about deterring drugs and migrants than it is about symbolism. In other words, state elites are more concerned about giving a good performance for reasons of domestic political consumption than they are about realizing the stated goals of boundary enforcement. In fact, the political-economic costs of too much success serve to limit enforcement. As one high-level US Customs official cited in Border Games stated, "If we examined every truck for narcotics arriving into the United States along the Southwest border.... Customs would back up the truck traffic bumper-to-bumper into Mexico City in just two weeks--15.8 days.... That's 1,177 miles of trucks, end to end."
To the extent that there is an appearance of success, however (statistics showing more interdiction, for example), it helps to realize a variety of political agendas. As Andreas contends, "Regardless of its deterrent effect, the escalation of enforcement efforts has helped to fend off political attacks and kept the drug issue from derailing the broader process of economic integration."
Thus, in the case of NAFTA, the deceptive image (one carefully crafted with the Clinton White House) that Mexico under Carlos Salinas de Gortari was having significant success in the binational war on drugs facilitated a reluctant Congress's passage of NAFTA. Moreover, the Administration promised that NAFTA would bring even greater levels of transboundary cooperation in the drug war and lead to more resources for boundary enforcement.
NAFTA also intertwined with the Administration's offensive against unauthorized immigration (a matter Andreas does not discuss), which was, in part, the US answer to massive disruption in Mexico's rural and small-business sectors brought about by growing economic liberalization. While Administration officials promoted NAFTA as a boundary-control tool (by creating better, high-paying jobs in Mexico, went the argument, NAFTA would lead to less immigration from Mexico to the United States), they also understood that NAFTA would intensify pressures to migrate among Mexicans displaced in the name of economic efficiency. As INS Commissioner Doris Meissner argued to Congress in November 1993, "Responding to the likely short- to medium-term impacts of NAFTA will require strengthening our enforcement efforts along the border."
For Andreas, specific developments are often the "unintended feedback effects of past policy choices" as much as the result of particular bureaucratic incentives and rewards. The 1986 Immigration Reform and Control Act (IRCA), for example, led to the legalization of large numbers of unauthorized immigrants as a way of ultimately reducing unsanctioned immigration. IRCA's main effect, however, was "to reinforce and expand already well-established cross-border migration networks" and to create a booming business in fraudulent documents.
These "perverse consequences" laid the foundation for the anti-immigrant backlash that emerged in the early 1990s--most vociferously in California, a state especially hard hit by the recession and feeling the effects of a rapidly changing population due to immigration. In advancing this argument, Andreas cautions that his goal is "not to provide a general explanation of the anti-illegal immigration backlash." Rather, he seeks to show how political and bureaucratic entrepreneurs partially whipped up public sentiment and channeled it "to focus on the border as both the source of the problem and the most appropriate site of the policy solution." While there is much merit in such an approach and the explanation that flows from it, it is insufficient.
First, as many have argued, the backlash of the 1990s was not simply against "illegal" immigrants but, to a large degree, against immigrants in general--especially the nonwhite, non-English speaking and the relatively poor. Moreover, as Andreas shows in a stimulating chapter that compares and contrasts similar developments along the Germany/Poland and Spain/Morocco boundaries, the seeming paradox of "a borderless economy and a barricaded border" is evidenced along boundaries that unite and divide rich and poor in other parts of the world. Given the locales of these developments and their uneven impacts on different social groups, there is need for another type of explanation.
How does one explain the differential treatment of the interests of the rich (enhanced trading opportunities) and those of the poor (those compelled by conditions to migrate and work without authorization)? It is in this area that Grace Chang is of great help. Disposable Domestics offers a refreshingly new perspective on immigration control. Chang's tone is overtly political and more polemical than that of Andreas, but her approach is equally rigorous. Her goal is to make poor immigrant women visible, to humanize them, to highlight their contributions and tribulations, and to show them as actively trying to contest their conditions of subjugation.
Chang argues persuasively that poor immigrant women--largely Third Worlders--have become a central focus of "public scrutiny and media distortion, and the main targets of immigration regulation and labor control" in the United States. To show the continuity between past and present, she provides an overview of the long history of imagery portraying immigrant women as undeserving users of welfare services and hyperfertile breeders of children. In doing so, she makes an invaluable contribution, showing how the regulation of immigration and labor is inextricably tied to matters of gender, as well as to those of class, race and nationality.
The author effectively challenges mainstream assumptions that surround the immigration debate. For example, she argues that studies attempting to measure the costs and benefits of immigration--regardless of their findings or the agendas behind them--ultimately reduce immigrants to commodities or investments. Chang sides with an emerging consensus among immigrant advocates that sees such studies as missing the point, and instead emphasizes the human and worker rights of all immigrants. In this regard, she criticizes immigrant advocates who have fallen into the trap of dividing immigrants between good ("legal") and bad ("illegal").
Chang highlights the folly of this approach in recounting the trials of Zoë Baird, Clinton's first nominee for Attorney General. When it came to light that she employed two undocumented immigrants as domestic servants--a common "crime" among two-career, professional couples--her nomination was sunk. What led to public outrage, according to Chang, was more the "resentment that this practice was so easily accessible to the more privileged classes while other working-class mothers struggled to find any child care," rather than the flouting of the law per se.
Throughout, Chang gives us moving accounts of gross exploitation of immigrant women working as domestics or caretakers, showing that relatively well-off households often look specifically for "illegals" to save money and to facilitate their privileged lives. Indeed, "the advances of many middle-class white women in the workforce have been largely predicated on the exploitation of poor, immigrant women." For Chang, this explains why "the major women's groups were conspicuously silent during Baird's confirmation hearings"--a manifestation of the racial and class privileges their members enjoy.
Recent antiwelfare efforts in the United States, which Chang explores in another provocative chapter, also rely on the exploitation and scapegoating of immigrant women. She compares representations of poor women--native and immigrant--used both in the promotion of welfare "reform" and in efforts to regulate undocumented working women. In both cases, poor women are portrayed as exploiters of the system (to facilitate their hyperfertility) and as criminals--either as welfare cheats or as "illegals." For welfare mothers, the resulting backlash is "workfare"--a program that forces them to work (outside their homes, under the assumption that raising children is neither work nor a benefit to society), but not for a wage. They work for their welfare benefits instead, a remuneration usually far below what they would earn as employees. Meanwhile, government officials, corporate spokespersons and household employers mask their exploitation of low-wage employees as beneficence, purportedly providing them with opportunities, training and preparation, and the ability to assimilate into respectable society.
The war on the poor (welfare reform) and that against unauthorized immigrants are also sometimes functionally tied. Virginia's state office of social services, for example, cooperated with the INS to open up jobs held by "illegals" for workfare participants. This, along with INS raids of workplaces in the midst of unionization drives, according to Chang, is a growing trend. It is far from clear, however--at least on the basis of the anecdotal evidence Chang presents--that such events indicate a long-term, upward trend. Indeed, while anti-union employers have long used the INS to undermine immigrant-worker organizing, with a number of especially outrageous incidents taking place in the late 1990s, those appear to have diminished over the last couple of years, apparently due to the outcry from union, immigration and human rights activists. In part, the discrepancy reflects the fact that Chang wrote the book--more a collection of essays stitched together--over several years, with some of the chapters having appeared in previous publications.
Chang tends to see the factors that create and drive immigration and the mistreatment of low-wage immigrant workers as derivative of an overarching economic logic and a resulting set of intentional, goal-oriented practices. Thus, the workfare/INS-raid nexus illustrates the "true function" of the INS: "to regulate the movement, availability, and independence of migrant labor." More generally, immigration "is carefully orchestrated--that is, desired, planned, compelled, managed, accelerated, slowed and periodically stopped--by the direct actions of US interests, including the government as state and as employer, private employers, and corporations." United States elites keep Mexico and other countries in "debt bondage" so that they "must surrender their citizens, especially women, as migrant laborers to First World nations." And the purpose of California's Proposition 187, which would have eliminated public health, education and social services for unauthorized immigrants, is "perhaps" to mold immigrant children into a "category entirely of super-exploitable workers--those with no access to language or other skills and, most of all, no access to a status even remotely resembling citizenship that might allow them the safety to organize."
Such contentions imply a level of unity within the state and coherency in thought among economic and political actors (who are seemingly one and the same) that simply do not exist. They also downplay the agency of immigrants--who appear to be mere pawns of larger forces--and factors internal to their countries of origin driving immigration. Finally, such economic reductionism is puzzling given Chang's emphasis on race, gender and nationality. It seems at times, however, that she thinks that these are mere tools for highly rational, all-knowing and all-powerful economic elites.
This is why we need to appreciate the autonomous roles of race-, class-, gender- and nation-based ideologies in informing much of the anti-immigrant sentiment--factors that do not always dovetail with the interests of capital. Indeed, those elements are frequently at cross purposes. More than anything, anti-immigrant initiatives over the past thirty years have been the work of opportunistic and/or entrepreneurial elected officials, state bureaucrats and the cultural right--often small grassroots organizations and right-wing think tanks--rather than the business sector. Historically, capital has been generally pro-immigration. As the New York Journal of Commerce gushed in 1892, "Men, like cows, are expensive to raise and a gift of either should be gladly received. And a man can be put to more valuable use than a cow." Today, the Wall Street Journal advocates the elimination of border controls for labor. While this probably does not represent the view of most capitalists, it is significant nonetheless. And in the case of Proposition 187--as Chang reports--California employers, while collectively failing to take a public stand on the measure, generally opposed it for fear that they had much to lose if it passed. That said, the author is undoubtedly right to castigate employers for doing little or nothing to stand up for the rights of immigrants from whose labor, and from whose politically induced marginalization, they profit.
Given the divergent emphases and approaches of Andreas and Chang, very different solutions emerge from their arguments. Andreas criticizes the overemphasis on the supply side of unauthorized immigration and drugs. In terms of immigrants, for example, he observes that among wealthy countries, the United States "imposes the toughest penalties on the smuggling of migrants and related activities yet is among the most lenient with those who employ them." Similarly, he criticizes the scant resources available for enforcing existing workplace rules, which would undermine the ability of employers to exploit unauthorized workers, and he chides Congress for failing to develop a forgery-proof identity card system. (His stand on continued drug policing in the border region is less clear, although he calls for framing the drug problem as one of public health rather than law enforcement.)
Andreas seems resigned to the continued emphasis on border controls, too, despite demonstrating their brilliant failure. As one INS official he quotes explained, "The border is easy money politically. But the interior is a political minefield." Ending the border buildup is also a political minefield--one Andreas seems unwilling to enter. He is decidedly critical of the border status quo and aware of the hardships it causes (a topic to which he gives insufficient attention), but he critiques it on its own terms. In this regard, he does not stray outside the mainstream confines of debate.
A law-enforcement approach to unauthorized immigration is destined to fail. The ties between the United States and Mexico (and increasingly much of Latin America) are too strong, migrants are too resourceful and creative, and Americans are too resistant to the types of police-state measures that would prove necessary, to reduce unsanctioned immigration significantly. A far more effective and humane approach would be to work with progressive sectors of Third World societies to address the breakdown of political, economic and social systems and/or institutionalized injustice that often leads to immigration.
De-emphasizing boundary policing will likely reduce the deaths of unauthorized migrants (almost 600 in the California border region alone since 1994). But increased internal enforcement will create other difficulties, such as increased discrimination against those who do not look "American." It will also cause greater hardships in immigrant households, many of which contain people of different legal statuses. Should the US deport a principal breadwinner (an "illegal") from such a household, for example, leaving behind his or her US citizen children and "legal" spouse to fend for themselves?
Although Andreas argues that "the state has actually structured, conditioned, and even enabled (often unintentionally) clandestine border crossings," he discusses this matter in narrow terms, focusing on how previous "solutions" to the putative problems had an exacerbating effect. Meanwhile, he neglects the role played by the government and US-based economic interests in creating the conditions that fuel immigration. Thus, no issues of moral or political responsibility enter the analysis.
Grace Chang, on the other hand, puts a strong emphasis on the responsibility of the United States in fueling outmigration; it benefits from immigrant women's labor and wreaks havoc in Third World countries through the likes of military interventions and the imposition of structural adjustment programs. For Chang, the question is not one of trying to devise the best policy to control the unauthorized but of bringing about the changes needed to realize the rights of immigrants as workers and as human beings. In making this case, Chang correctly calls upon those of us who benefit from an unjust world order to stand in solidarity with immigrants--especially low-wage, Third World women who enable our privileged lifestyles--in their struggle for social justice at home and abroad.
The judge who chided Bush over aid to children is part of a state tradition.