Lía Fiol-Matta J.D. City University of New York (CUNY) School of Law. Lía Fiol-Matta is Senior Counsel at LatinoJustice PRLDEF. She has contributed to amicus briefs related to Puerto Rico in United States v. José Vaello-Madero, 141 S. Ct. 1462 (2021), and Centro de Periodismo Investigativo v. Fin. Oversight & Mgmt. Bd. for P.R., No. 17-1743 (JAG), 2018 U.S. Dist. LEXIS 77262 (D.P.R. 2018).
Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases
Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause
At no other point in recent history have the so-called Insular Cases, and their enduring colonial legacy, elicited as intense a debate in Congress, the U.S. Department of Justice, the federal courts, and the territories as right now. Today, these early-twentieth-century cases—which notoriously established a continuing distinction between “incorporated” and “unincorporated” territories—face unprecedented hostility from policymakers, courts, and scholars. Grounded on white supremacist notions of the inferiority of inhabitants in U.S. territories, the Insular Cases finally appear indefensible to modern eyes.
But even if the Supreme Court ever reconsiders the Insular Cases, case law more than a century old will not easily fall away. The Court will still have to wrestle with stare decisis if a majority of the Court is willing to overrule the territorial incorporation doctrine. Arguments against territorial incorporation will need to grapple with the notion that “the respect accorded prior decisions increases, rather than decreases, with their antiquity . . . .” Further, experience shows that however ill-reasoned the Insular Cases may be, judicial reverence (or inertia) might be a powerful counterweight to their repeal.
This Article argues that this should not be the case. Whatever the Insular Cases’ continued validity, neither stare decisis nor their antiquity should protect them from abrogation. The Insular Cases—and specifically, the territorial incorporation doctrine that they stand for—meet every factor that the Supreme Court needs to overrule its own precedent.Download the PDF
Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases
Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause
The Insular Cases, a series of Supreme Court decisions in the early 1900s concerning the constitutional status of the colonies acquired from Spain at the conclusion of the Spanish-American War, have rightly played a central role in the discussion of Congress’ relationship with the current U.S. territories. Overruling those decisions, which are racist in their rationale, is long overdue. Their repudiation, however, will not change the separate and unequal status of the territories as compared to the states under the Constitution. Because the Constitution distinguishes territories from states, formal decolonization—namely, ceasing to be a territory—is a necessary precondition to equal status under the Constitution (or, as Chief Justice John Marshall once wrote, “complete equality”). Stated in more precise terms, so long as the territories remain territories, their residents will not be equal to the residents of the states under the law. But that formal inequality was always meant to be temporary. The Constitution does not authorize colonial rule indefinitely because the territorial status, properly understood, is impermanent in character. Moreover, to cease to be a territory, the Constitution recognizes only two options: statehood or independence (which includes free association). As this Article demonstrates, the Constitution’s text and related historical practice provide a fresh outlook on how to make the constitutional case for decolonization and bring much-needed equality to the residents of the territories—America’s long-forgotten citizens.Download the PDF
Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases
Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause
This Essay examines how empire invisibly perpetuates itself through “status manipulation.” “Status” refers to formal polity-person and polity-place relationships, perceived to be well-defined, preestablished, unchanging, and consequential. Such relationships are envisioned as automatically creating rights and powers, as well as obligations, detriments, and exclusions. The gap between the perceived fixity of status and its actual malleability gapes wide in the case of U.S. empire. The ambiguity is the result of choices by U.S. empire builders. “Manipulation” places the emphasis on this intentionality. It also describes the misdirection by which changes to status and the changeability of status sustain colonialism while hiding it from view. The U.S. empire dangles sovereignty before people in some of its colonies. In others, it strings people along in their beliefs that colonial sovereignty already exists. Doing so divides, frustrates, and seduces anti-colonialists. Like parched and starved Tantalus, whose fruit and water are always just beyond reach, inhabitants of the colonies endure degraded statuses that are tantalizingly close to a redemption that never arrives. Studies of the smallest and largest populated U.S. territories, American Samoa and Puerto Rico, illuminate the mechanics. This Essay concludes with a recommendation: Academic critics of colonialism should not allow the uncertainty that status manipulation produces to induce their silence. They should instead speak carefully, listen hard, recognize their errors and fallibility, and acknowledge and correct their mistakes.Download the PDF
In the midst of a debilitating humanitarian crisis in Puerto Rico and high-profile litigation concerning other U.S. territories, scholars, political leaders, and activists have elevated conversations of constitutionallysanctioned inequality into the public spotlight. With respect to Puerto Rico, these conversations focus on its current economic morass and relation to the debate over decolonization. Absent from these important discussions is the role that federal criminal law plays in manifesting Congress’ continued plenary power over U.S. territories. This Article breaks from that pattern and highlights an ignored part of federal criminal jurisprudence: the federal prosecution of local criminal activity in Puerto Rico.
This Article argues that federal prosecution of local criminal activity is an explicit manifestation of the federal government’s continued colonial grasp over the Island. Moreover, it contends that scholars, advocates, and politicians should consider the significance of federal prosecutorial power as they approach decolonization options for the Island. The Article begins by setting the current stage of federal prosecutions on the Island, explaining how local and federal forces often work together in prosecuting federal crimes, and exhibiting how that collaboration has led to a federal system of mass incarceration over which Puerto Ricans have no direct control. The Article next details the jurisprudential evolution of applying federal criminal laws to the Island and highlights the way in which the creation of the Commonwealth of Puerto Rico in 1952 has allowed courts to simultaneously pay lip service to the ideals of liberty and equality on the mainland by invoking the popularly branded “compact theory,” while sanctioning unequal treatment in Puerto Rico. Finally, the Article explores why conversations about decolonization should focus on the federal government’s ability to prosecute local criminal activity.Download the PDF
It is often intimated that tragedy naturally follows whoredom. In actuality, violence in the sex trade and related industries is usually indicative of power differentials—mainly structural sexism and racism—and legislation that seeks to impede sexual and pleasure-seeking behavior and monetary compensation for, or material consumption of, said intimate labor. On March 16, 2021, eight East Asian massage-parlor workers and bystanders were murdered by a twenty-one-year-old white supremacist gunman named Robert Aaron Long. Long targeted three different Atlanta-based spas—two of which were allegedly listed on an erotic review site as “illicit massage businesses.”
Massage spas are stigmatized and criminalized throughout the United States based on the assumptions that they are places where one can receive sexual services from Asian women or where exploited immigrant women are held against their will. It was within this context that Long allegedly claimed that the killings were not racially motivated, but were instead a result of his desire to purge himself of a “sex addiction.” In Discriminating Sex: White Leisure and the Making of the American Oriental, Amy Sueyoshi wrote that in the nineteenth and twentieth centuries, “Public-health officials constructed the Chinese syphilitic prostitute as particularly dangerous only after they discovered that white men also visited Chinese women for sex—so much so, officials legislated the 1875 Page Law that barred the entry of ‘immoral women’ specifically for the Chinese.” Although one must be wary of labeling massage spa laborers as “sex workers,” the triadic connection between race, sex, and perceived occupation was almost certainly a factor in the violence at the Atlanta spas. Yves Nguyen of Red Canary Song, a New York City organization that supports Asian sex workers and allies, drew this connection in their statement on the violence. She stated that the violence at the Atlanta spas was “part of a history of race and gender-based violence against Asian women, immigrants and sex workers” and that “whether the women victims provided sex services is beside the point.” Racialized misogyny insists that East Asian women are demure, tempestuous, fetishistic objects of desire. Roslyn Talusan, a cultural critic, highlighted the insidious nature of racialized misogyny, saying “it’s both impossible and dishonest to ignore how Orientalist misogyny factors into the mass shooting in Atlanta. Asian women have historically been exoticized in America, portrayed as delicate, submissive ‘Lotus Flowers’ or hypersexual and manipulative ‘Dragon Ladies.’” Anti-Asian bigotry has spiked since the inception of the coronavirus pandemic, affecting both Asian Americans and Pacific Islanders nationwide. Last year, former President Trump provoked sinophobia by repeatedly calling the coronavirus the “Chinese virus.” Furthermore, racialized, gendered violence against sex workers is both historic and ongoing, heightened by the stigma caused by modern laws.
Reports show that prostitution stings had previously targeted at least one of the spas the gunman attacked. Over the past several years, multiple new federal policies have targeted sex workers and erotic laborers while purporting to be related to eradicating (child) sex trafficking. These changes have included an increase in “trafficking” stings at workplaces such as massage parlors, carried out to arrest and charge women with prostitution, while ultimately levying no trafficking charges. They have also included legislation such as FOSTA/SESTA, which supposedly rests on the rationale that shutting down offensive websites will prevent traffickers from exploiting victims, including (white) children and youth. Such measures are often met with rightful skepticism because, historically, laws have criminalized, rather than protected, trafficking victims. The Trafficking Victims Protection Act of 2000 (TVPA) defines any and all commercial sex trading by minors as trafficking: “there is no requirement to prove that force, fraud, or coercion was used to secure the victim’s actions if the victim is a minor.” Despite this, “[o]nly four states—California, Connecticut, or Florida and Minnesota—have enacted non-criminalization laws that are designed to prevent the arrest and detention, as well as prosecution, of minors for prostitution offenses in addition to connecting child sex trafficking victims with holistic, specialized care and services.” This means that many youth in the sex trade—including minors—are not fully protected by the Trafficking Victims Protection Reauthorization Act (TVPRA) or Safe Harbor laws.
Women and girls of color, including the trafficking victims whom the criminalization of sex work purportedly “saves,” are disproportionately targeted and criminalized by law enforcement, which fails to protect them from the racist and gendered violence they commonly experience while engaging in “survival sex” or other forms of sex work. Minors, particularly Black girls, are still being arrested on charges of prostitution in certain states and criminalized when they defend themselves against sexual violence. An article by Cherice Hopkins for Campaign for Youth Justice states that “girls of color account for 22% of the youth population, but 66% of incarcerated girls . . . . In 2017, Black children accounted for 52% of juvenile prostitution arrests and girls accounted for 61% of prostitution arrests.” Many of these youths are homeless, former victims of abuse, or runaways engaging in “survival sex,” i.e., trading sex for basic resources or other material goods. For example, Chrystul Kizer was arrested at age seventeen after she confessed to killing Randy Volar, a thirty-four-year-old white man who had sexually abused her after responding to a website ad when she was sixteen. Volar had a record of past child sexual abuse, and had a record of abusing underage Black girls. Kizer was charged with first-degree intentional homicide, which carries a mandatory life sentence in Wisconsin. As of this writing, she is currently still awaiting trial. Similarly, Cyntoia Brown, a homeless runaway described as a “teen prostitute,” was convicted in 2004 of killing a man who solicited her for sex. Brown was tried as an adult under Tennessee law, and sentenced to life imprisonment. She was subsequently granted clemency after activists and celebrities rallied behind her. The cases of Kizer and Brown are just two examples of countless ways that the policing of sex work hurts victims more than it helps them.
The precarious position of sex workers has only been exacerbated by the coronavirus pandemic, which has caused a national and global economic struggle for many. Erotic laborers, especially sex workers, typically have a difficult time accessing government aid. Women, LGBTQ+ people, poor people, and nonwhite/Black sex workers are particularly affected, because socioeconomic inequalities are compounded in this mostly underground industry. Last year the United States government approved the $2.2 trillion dollar CARES Act to provide assistance for small businesses, independent contractors, and sole proprietors via Small Business Administration (SBA) loans and the Paycheck Protection Program (PPP). However, “businesses that provide services or live performances of a ‘prurient sexual nature’ are banned from receiving SBA loans under federal regulations.” This move left many erotic laborers and other related business owners and independent workers bereft of financial resources. Many sex workers had to choose between continuing to work and risk contracting the virus, or struggle. But the pandemic did not only affect in-person workers: as people moved online, so did sex work.
OnlyFans, a website made popular by erotic performers and cyber sex workers, experienced a steep rise in content creator signups following massive layoffs during the pandemic. Earlier this year, a white, middle-aged mom was exposed as an erotic OnlyFans contributor by neighbors and parents, which resulted in the expulsion of her children from Sacred Heart Parish, a Catholic school in California. Said the principal: “your adult website is in direct conflict with what we hope to impart to our students and is directly opposed to the policies laid out in our Parent/Student Handbook.” This is just one of multiple cases where people, usually cis women, have their erotic OnlyFans account exposed by coworkers, customers, or other “concerned” community members.
In relation to this trend (of exposure), attorney Andrew J. Horowitz stated “it is perfectly legal for private employers to regulate employees’ activities outside of the workplace.” Horowitz’s comments showcase a steady encroachment of capitalist-class employers on laborer’s private lives.
He cites a case involving a female employee whose male coworkers “discovered” her OnlyFans account and proceeded to blame her for the fallout and suggests that employers surveil their employees’ social media accounts and add detailed clauses to their employment contract to prohibit their employees’ activities outside of work—whether they derive income from them or not. This reveals the normalization of surveillance and employer’s increasing control over worker’s’ lives.
In addition to private employers’ pushes to regulate employees’ online activity, the federal government has made moves to censor it. In December 2020, senators from both the Democratic and Republican parties introduced the “Stop Internet Sexual Exploitation Act,” which directly targets Pornhub and similar sites that host pornography. This in the midst of a global pandemic when women—mainly those who are nonwhite and work low-wage jobs—have been forced to drop out of the labor force in droves. Such legislation shows a blatant lack of understanding of the many ways that criminalizing sex work targets people who are already economically marginalized.
Turning now more profoundly to the intricacies of a theory for our liberation, issues of age, race, class, sex, gender, and disability are complicating a movement previously dominated by white, middle class, higher-end perspectives. First, erotic laborers are a broad mélange of libertarians, neoliberals, radical leftists, socialists/communists, conservatives, and anarchists. Second, and relatedly, the juxtaposition of decriminalization and legalization and discriminatory “models” that criminalize certain aspects of sex work have yielded a wide range of imprecise terms such as “full decriminalization.” Some high end escorts would prefer to remain independent contractors, while others, myself included, have advocated for accessing labor protections by forming cooperatives or unionizing—although formal unions are not available to independent contractors due to antitrust laws. I have also discussed brothels at length, positing cooperatives as a solution to the problem of madams and cis-heterosexual male brothel owners. None of these solutions is even close to being perfect. And, of course, this is all being discussed under the guise of the continuation of capitalism. In the words of anarchist Pedro Ribiero, “only the oppressed can liberate themselves.” This means that much of our work may have to be accomplished without appealing to the State. Defunding the police and waging class struggle, along with advancing racial and gender equity, are a huge part of our work.
When I say “our work,” I am distinctly referring to the work of poor, queer, trans, and disabled nonwhite peoples and our comrades. Many of us are multiply marginalized and engaging in deviant occupations, and thus we cannot disentangle one mode of oppression from another. Connecting various forms of erotic labor to other forms of labor has proven to be incredibly complex—laws governing erotic labor vary widely from legal pornography and erotic dancing (stripping), to quasilegal cyber erotic labor (including cammodeling and selling access to explicit videos on sites like OnlyFans and ManyVids), to illegal prostitution (sex work), to selling erotic items such as underwear. Currently, the sex worker rights movement has stalled around the issues of decriminalization/legalization and stigma. During the pandemic, a debate arose about whether or not sex work is care work, or “essential work.” More Black, Asian, Latine, queer and trans folks are involved, and more visible, in this current wave of the sex worker rights movement, than ever before. Likely this is due to the ubiquity of social media, which increases the ability to connect and organize across borders.
With this connection comes tension. As a former street-based prostitute and current low end erotic laborer (of various modes), I have witnessed lupephobia from strippers/dommes complaining about dancers and fellow performers who do “extras.” Extras could be anything from letting a customer palm your breasts where it is illegal to engaging in “illicit” activity with clients outside of the club. Club owners often contractually prohibit dancing at parties outside of work. None of these restrictions are for the safety of the dancers; they are to protect the interests of the club and keep it from being targeted and shut down by law enforcement.
These tensions are inextricable from working conditions shaped by capitalism’s inherent exploitation of labor. For example, after erotic dancer Genea Sky fell from a two-story pole at XTC Cabaret in Dallas and fractured her jaw, she did not qualify for worker’s compensation because she was categorized as an independent contractor rather than an employee. This is common for erotic dancers: club contracts often remove liability for club owners and place all responsibility for injury and assault on the dancers. However, dancers are still required to behave as if they are employees, reporting to work for specific shifts and facing penalties should they not show up as scheduled. Yet they are still charged a “house fee” and they still have to tip out the staff. This is the problem with sex work as “work.”
I prefer to approach sex work and erotic labor both as informal labor and as nonwork, or antiwork. My initial rationale for trading sex was simple: I needed money. As I aged and got my first “real job,” I discovered something: I hated work. The longest I held a vanilla, or non-sexual, job was a year. Stripping, and various forms of prostitution (street-based, freestyle, hoeing, and sugaring), allowed me the flexibility I desired. Later, when I became a mother, camming, sugar dates, and amateur porn creation provided that same flexibility. Recently I was diagnosed with moderate-to-severe ADHD. After dropping out of college multiple times, quitting jobs, poor impulse control, social/productivity anxiety, and a second pregnancy, postpartum depression drove me to seek medical help. Disability makes it even more imperative that I not work. I am horrible at meeting deadlines, even self-imposed ones. Content creation (via ManyVids), phone sex, camming, and prostitution are my current modes of nonwork, along with writing, speaking engagements, and other gigs and informal labor. Thus, the phrase “sex work is work” is not very appealing to me, though I understand why some people are fans of it. As Kathi Weeks pointed out in The Problem with Work: Feminism, Marxism, Antiwork Politics, and Postwork Imaginaries, much of the utility of “sex work” comes from its relation to conventional work:
As a replacement for the label prostitution, the category helps to shift the terms of discussion from the dilemmas posed by a social problem to questions of economic practice; rather than a character flaw that produces a moral crisis, sex work is reconceived as an employment option that can generate income and provide opportunity. . . . The approach usefully demoralizes the debates about the nature, value, and legitimacy of sex for wages in one way, but it often does so by problematically remoralizing it in another; it shifts the discussion from one moral terrain to another, from that of a suspect sexual practice to that of a respectable employment relation.
The conception of sex work in terms of work or antiwork may also usefully unsettle older narratives that have been both false and harmful. Empowerment and the related “sacred whore” mythos have roots in the first wave of the sex worker rights movement. During what many term the “sex wars,” sex workers basically had to choose between a binary of empowerment (to align with sex-positive feminists) or exploitation (the anti-prostitution/anti-porn “abolitionists”). This led to a general erasure of most nonwhite, poor, immigrant, and LGBTQ perspectives, and a silencing of those on the margins of the movement whose experiences within sex work had been less than positive, or downright violent.
Even though there are more Black, Asian, and Latine organizers and participants in the sex worker rights movement today, white-centricity is still somewhat of a problem within the movement. Nonprofit organizations and other public and private entities tend to function as (neo)liberal gatekeepers. The media tends to center or reach out to white cis sex workers first and foremost, and grants commonly contain specific requirements for how money must be used. Money is power in a capitalist economy, and white erotic laborers and anti-trafficking advocates simply have more access to it. By partnering with conservatives, radical feminists were able to advance the anti-prostitution cause with solid financial and social backing. Liberals and conservatives have united over trafficking, deemed “modern-day slavery,” ushering in (or perhaps benefitting from) a wave of social conservatism, concerned with:
[A] growing market economy commodifying more aspects of life, middle class concerns about race and immigration, feminist concerns about male sexual exploitation of women, conventional religious beliefs about proper gender roles, virtue, the family and sexual morality, and neoliberal ideologies which blame individuals rather than structures for social problems.
Even intracommunally, support from alleged sex positive Black feminists and academics is capricious. Current discourse is plagued by cis-heterosexual women’s individual economic concerns (hypergamy, child support, cheating, etc.) and middle-class sentiments, blended with residual concerns from the second and third wave (marriage and motherhood as socially and economically oppressive, prostitution as a threat). Because the vast majority of sex worker clients are white, cisgender men, Black feminists’ political history around prostitution is complicated. Prostitution is a class, as well as a racial, sex, and gender issue, for Black people. Audre Lorde’s renowned essay “Uses of the Erotic” is a shining example of the lupephobia embedded within our feminist lineage:
The erotic has often been misnamed by men and used against women. It has been made into the confused, the trivial, the psychotic, the plasticized sensation. For this reason, we have often turned away from the exploration and consideration of the erotic as a source of power and information, confusing it with its opposite, the pornographic. But pornography is a direct denial of the power of the erotic, for it represents the suppression of true feeling. Pornography emphasizes sensation without feeling.
This supposed dichotomy between the erotic and pornography gives me pause. This perception is reflective of the way that sex work, including porn performance, is viewed by the masses, regardless of their political inclinations. Reaching back to Eileen Boros and Rhacel Salazar Parreñas’s conception of intimate labor and Amalia L. Cabezas’s notion of sexual-affective relationships, I take issue with the reductive, moralistic claim that sexual services, erotic services which we trade for material or other compensation, are necessarily, or inherently, degrading and devoid of emotional return. Lorde writes:
The aim of each thing which we do is to make our lives and the lives of our children richer and more possible . . . . The principal horror of any system which defines the good in terms of profit rather than in terms of human need, or which defines human need to the exclusion of the psychic and emotional components of that need – the principal horror of such a system is that it robs our work of its erotic value, its erotic power, and life appeal and fulfillment. Such a system reduces work to a travesty of necessities, a duty by which we learn bread or oblivion for ourselves and those we love . . . . There are frequent attempts to equate pornography and eroticism, two diametrically opposed uses of the sexual. Because of these attempts, it has become fashionable to separate the spiritual (psychic and emotional) from the political, to see them as contradictory or antithetical.
Erotic labor and writing sex worker theory have fed and clothed my children. It is necessary to complicate our perspectives on what it means to engage eroticism, while steering clear of the simplistic divine feminine empowerment narratives that have dominated sex worker rhetoric.
In response to both Alice Walker’s definition of womanism, and Audre Lorde’s conception of the erotic, I fashioned a philosophy that centers my deviant perspective. By coining proheauxism (proheaux womanism) and elaborating on what it means to be “pro-hoe,” I complicate these moral and social objections to whoredom with an anarcho-Black, community-centered, antiwork/anticapitalist, womanist stance:
proheauxism[:] 1. Proheaux womanism. Derived from the more colloquial “pro-hoe” ([s]pelling altered to reflect difference & refinement). A sex worker womanist, feminist, or hustler-heaux committed to collective and personal justice, not just sexually, but through recognition of labor and physical security. Radically thotty, and proud of it. Curious about their sexuality, about birth and rebirth, about challenge and change, about redemption and reparations, about the physical and the emotional. Loves the river in all its incarnations. A pro-sex, pro-pleasure politic that is specifically centered on the multiply marginalized. Might be: marvelous. One who owns oneself and one’s own sexuality or gender expression, regardless of whether or not they are attached to a man or masculine person.
2. A womanist who rejects antiheaux sentiments as well as respectability, racial capitalism, and whore hierarchies. Rejects misogynoir and transmisogynoir—all forms of misogyny, period. Does not accept nor engage in active or passive transphobia, homophobia, colorism, xenophobia, classism, or anti Blackness. Doesn’t juxtapose the erotic and pornography, and recognizes that non-exploitative pleasure comes in varied forms, is not always sex-centered, and is paramount to the human experience. Against all forms of erasure and systemic oppression. Recognizes that solidarity is impossible without acknowledging difference and rejects the urge to homogenize experiences under the guise of inclusivity.
There are many things to consider when theorizing a practice of pro-sex worker, pro-pleasure politic. Under the current unjust system, we cannot appeal to non-sex workers’ morality. In the face of overwhelming signs and discrimination, we must demand ethical treatment. We must demand humanity, and humane policy that reflects and balances the needs of the multiply marginalized. I too desire to make the lives of my children “richer and more possible.” Sex work has “erotic value” and, as (non)work, has bolstered my “life appeal and fulfillment.” It is the empowerment/exploitation binary (choice vs. coercion), racism, classism, poverty, and ableist, prejudicial policy that have impeded me at every turn. The following pieces interrogate the reality of implementing a proheaux politic in the arena of policy. Clarifying the effects of recent legislation on the lives and livelihood of erotic laborers, the following brilliant pieces expose the impact of discriminatory legislation, and tentative victories, from an anti-racist, intersectional lens.
Introduction to the Symposium
FOSTA in Legal Context by Kendra Albert, Elizabeth Brundige, Lorelei Lee, et al., digs into the FOSTA-SESTA legislation, which shifted the landscape for current erotic laborers and third-party internet platforms. Originally produced for the sex worker-led collective Hacking//Hustling, it brings to light the fact that, despite claims that the new bills would be an improvement upon Section 230 and bring child traffickers to justice, only one prosecution has been brought since their passage. Furthermore, it appears that FOSTA-SESTA had the exact effect that sex worker activists feared: Many of the social media platforms, subscription sites, and third-party payment processors commonly used by erotic laborers for marketing purposes, screening clients, safety tips, and/or payment processing have altered their terms of service to exclude people involved in or adjacent to the sex trades. FOSTA in Legal Context gives us a detailed look at the legal aspect of these laws and what it means.
Heather Berg, whose work typically focuses on the labor aspects of sex work, once again zeroes in on the complexities of legislating erotic labor—specifically porn performance—in the gig economy in her Article, Porn Work, Independent Contractor Misclassification, and the Limits of the Law. Berg highlights the fact that many porn performers would rather manage themselves and retain the maximum level of control over their environment and income than deal with being labeled employees and risk state interference, which would require them to comply with a new set of rules that may not work in their favor. She cautions against the notion that this would be an easy solution to the problem of independent contractor misclassification, and suggests we adopt a policy approach. Berg’s Article draws on ethnographic research and interviews conducted for her book Porn Work, and critiques efforts to regulate this industry without input from current workers.
Lorelei Lee’s The Roots of Modern Day Slavery: The Page Act and the Mann Act reveals and interrogates the appropriation of (Black) abolitionist language by anti-trafficking/anti-porn activists. It breaks down how the myth of “white slavery” (re)entered the minds of the public. The image of a cisgender (cis) white womanhood in danger and in need of protection drives much of the legislation around (cis and trans) women’s bodies in America. White government officials often invoke an image of cis white women or (white) children in peril, combined with racist images of immigrants and Black men stealing American children, in order to stoke the xenophobic fears of a mostly white public imagination. Xenophobic language shaped historic “modern day slavery” rhetoric in two key ways—by telling stories of Italian, Jewish, and other immigrants “seducing” young white women, and by spreading Anti-Asian narratives of primarily Chinese male “enslavers” of Chinese women, who are described as submissive and vulnerable by 19th century white feminists or hyper-sexualized and contagious by white male politicians and labor activists. In revealing the history of anti-trafficking white feminism’s origins in anti-vice religious movements and alignment with anti-immigration activism, we begin to see a picture of what is truly meant by the modern use of the phrase “modern day slavery.”
S. Priya Morley’s Article, The Many Lives of a ‘Win’: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, moves our gaze away from the United States and towards the Canadian context. Before 2013, it was not illegal to engage in sex work in Canada, but many of the acts surrounding sex work, such as brothel-keeping (“bawdy houses”) and living off the profits of prostitution, were prohibited under the Criminal Code. In 2013, the Supreme Court found these laws to be unconstitutional, but the government responded by enacting new laws that had the effect of criminalizing sex workers again. As Morley outlines, criminalizing sex work particularly impacts street-based, low-end, and poor sex workers, including in Vancouver’s Downtown Eastside neighborhood. Morley traces through this recent history of litigation challenging the criminalization of sex work in Canada, and argues that although the litigation did not achieve the substantive ‘win’ that sex workers had hoped for, it has made a significant contribution to access to justice in Canada. Morley’s article echoes my sentiment that legal approaches and even decriminalization are not enough. Instead, we need policy changes beyond decriminalization to protect multiply-marginalized sex workers, like those in the Downtown Eastside.
FOSTA-SESTA reignited the sex worker rights movement and reintroduced the issue of decriminalization to the general public. However, attaining decriminalization and reducing harm is only the first of many steps to procure justice. Sex work legislation intersects with a wide variety of concerns that belie the political fallacy of the “single issue.” This generation of sex intellectuals, sex working theorists, fourth wave feminists/womanists, and erotic academicians, is setting a new tone for the next generation. A new era of disinformation, technological surveillance, and corporate media control is upon us, with capitalist employers and moralizing politicians constantly lobbying for new legislation to impose upon the working public. The proliferation of sex work represents both a decline in economic security, as well as the increasing need for poor and working-class citizens to rely on informal labor and gig work to survive. Advocating for safe working conditions and reexamining the history of racialized, classist, discriminatory labor policy enables us to combat legislation that directly leads to the further marginalization of sex workers and the people who support them. This issue and its articles document the effects of recent legislation on the lives of sex workers and erotic laborers, tracking inconsistencies in how these laws are implemented and celebrating minor strategic victories, while deconstructing racialized terminology and highlighting the complexities of crafting proheaux policies in the face of deep-set stigma.
- This Introduction uses the term “intimate labor” rather than “sex work” or “erotic labor.” The use of this umbrella term is purposeful, because massage spa workers, like “sugar babies” and “professional cuddlers,” tend to occupy an indeterminate space wherein they are sometimes, or often, assumed to be erotic laborers, particularly if they are nonwhite. This Introduction uses “sex worker” to mean “prostitute,” and uses “erotic laborer” as an umbrella term for all professions in the sex trade/industry. For a discussion of this terminology, see moses moon (@thotscholar), Twitter (Mar. 6, 2021, 11:32 PM), https://twitter.com/thotscholar/status/1368419189711638531 (on file with the Columbia Human Rights Law Review).In her book, Unrepentant Whore: Collected Works of Scarlot Harlot, Carol Leigh describes how she coined the term “sex work” at a 1978 conference originally titled “Sex Use Industry.” Carol Leigh, Unrepentant Whore: Collected Works of Scarlot Harlot 66–69 (2004). Leigh suggested the title be changed to “Sex Work Industry” to replace the objectifying original title. She publicly identified herself as a prostitute, which was unheard of at the time. From then on, the term “sex work” became interchangeable with “prostitute.” Id. at 69. Somewhere down the line people both within and without the movement began to use “sex worker” as an umbrella term. Many felt it was politically expedient to do so, but some, including author Kathi Weeks, question whether part of the appeal of the term is its respectability and linkage to “regular” work. See Kathi Weeks, The Problem with Work: Feminism, Marxism, Antiwork Politics, and Postwork Imaginaries 66–69 (2011). Others, the author included, also feel that subsuming all forms of erotic/intimate labor under the banner of “sex work” is fine for advancing our cause, but somewhat diminishes the centrality of prostitutes (people who perform sex acts for material compensation).For a discussion of the concept of “intimate labor,” see Eileen Boris & Rhacel Salazar Parreñas, Introduction to Intimate Laborers: Cultures Technologies and the Politics of Care 1, 2–3 (Stanford Univ. Press 2010). Boris & Salazar Parreñas note:Through the category of “intimate labor,” we consider various occupations—usually subsumed under the often discreetly examine categories of care, domestic, and sex work—as sharing common attributes. Each of these laborers forges interdependent relations, represents work assumed to be the unpaid responsibility of women, and, consequently, is usually considered to be a non-market activity or an activity of low economic value that should be done by lower classes or racial outsiders . . . . Intimate labor emerges as a mechanism that maintains and reflects socioeconomic inequalities . . . when intimacy becomes employment, it loses status as a labor of love and becomes regarded as unskilled work that anyone can perform because women have undertaken such activities without payment . . . . Those who have performed such paid jobs are of lower status, often men and women of color and/or recent immigrants . . . . Characteristics of the worker have continued to define the skill and value of the work.
Id. at 2. ↑
- Hanna Park, He Shot at ‘Everyone He Saw’: Atlanta Spa Workers Recount Horrors of Shooting, NBC News (Apr. 2, 2021), https://www.nbcnews.com/news/asian-america/he-shot-everyone-he-saw-atlanta-spa-workers-recount-horrors-n1262928 [https://perma.cc/32PK-EZSC]; see also Press Release, Rep. Maxine Waters, Waters on Atlanta Spa Shootings: The Only Promise of White Supremacy Is That None of Us Are Safe (Mar. 18, 2021), https://waters.house.gov/media-center/press-releases/waters-atlanta-spa-shootings-only-promise-white-supremacy-none-us-are [https://perma.cc/7X8L-5ACW] (“The racist attack in Georgia that killed eight people, including six women of Asian descent, was a horrid reminder of the white supremacist threat that has plagued our country for hundreds of years . . . . It is clear that the only promise of white supremacy is that none of us are safe.”). ↑
- Douglas MacMillan & Abha Bhattarai, Police Crackdowns on Illicit Massage Businesses Pose Harms to the Women They Aim to Help, Wash. Post (Apr. 3, 2021), https://www.washingtonpost.com/business/2021/04/03/atlanta-massage-industry-police-tactics/ (on file with the Columbia Human Rights Law Review). MacMillan & Bhattarai report on a series of Georgia sting operations, describing police misconduct, sexual violence perpetrated by law enforcement, and incidents where plainclothes policemen visited the same massage businesses repeatedly. It states that in at least nine incidents, officers did not initiate arrest until after sexual contact began—even though Georgia law states that verbal agreement [to sexual acts for compensation] is enough to arrest someone. In at least six of the nine cases, officers were reportedly haggling. The Washington Post found no evidence of legal action found in the records. Id. ↑
- Anne Anlin Cheng, The Dehumanizing Logic of All the ‘Happy Ending’ Jokes, The Atlantic (Mar. 23, 2021), https://www.theatlantic.com/culture/archive/2021/03/
2YTM-87PD] (noting that massage parlors are “deeply racialized and sexualized in the American and global consciousness”); see also Jessica Contrera, Tracy Jan & Douglas MacMillan, Atlanta Spa Killings Lead to Questions About Sex Work and Exploitation, Wash. Post (Mar. 19, 2021), https://www.washingtonpost.com/dc-md-va/2021/03/19/asian-massage-business-women-atlanta/ (on file with the Columbia Human Rights Law Review) (discussing spas targeted by shooter, and history of sexual stereotypes about Asian massage parlors). ↑
- EJ Dickson, The Atlanta Spa Shootings Are Fueling Far-Right Attacks on Porn and Sex Work, Rolling Stone (Mar. 25, 2021), https://www.rollingstone.com/culture/
culture-features/atlanta-spa-shootings-asian-women-sex-addiction-1146368/ [https://perma.cc/57NJ-LTYJ]. ↑
- Amy Sueyoshi, Discriminating Sex: White Leisure and the Making of the American “Oriental” 91 (2018). Sueyoshi continues, “the Chinese woman was almost ‘invisible’ and ‘absolutely voiceless’ during the nineteenth century. According to Lee, the Chinese prostitute could not be made a subject of popularity because such publicity would unveil the ‘forbidden and unspeakable’ alliance between Chinese and white men that facilitated the extremely profitable commodification of Chinese women.” Id. ↑
- Emma Bowman, Atlanta Killings: Sex Worker Advocate Sees Deadly Consequences of Overlapping Hatreds, NPR (Mar. 21, 2021), https://www.npr.org/2021/
03/21/979811779/atlanta-killings-sex-worker-advocate-sees-deadly-consequences-of-overlapping-hat [https://perma.cc/N26W-NZY2] (quoting Yves Nguyen from Red Canary Song). ↑
- Id. ↑
- Roslyn Talusan, Blaming the Atlanta Shooting on ‘Temptation’ Glosses Over Its Racism, Vice Mag. (Mar. 23, 2021), https://www.vice.com/en/article/xgzndw/blaming-the-atlanta-shooting-on-temptation-glosses-over-its-racism [https://perma.cc/8T7L-CNWK]. The article noted:According to NBC Asian America, nearly 70% of victims of reported anti-Asian hate crimes between February 2020 and March 2021 were women. . . . White American men in particular have been conditioned to see [Asian women] as objects to conquer and acquire as property, denying us agency, and therefore, our humanity. The violence in Atlanta must be a turning point in how the media, and our culture at large, talks about racist misogyny.Id. ↑
- Id. ↑
- Tami Abdollah & Trevor Hughes, Hate Crimes Against Asian Americans Are on the Rise. Here’s What Activists, Lawmakers and Police Are Doing to Stop the Violence, USA Today (Feb. 27, 2021), https://www.usatoday.com/story/news/nation/2021/02/27/
asian-hate-crimes-attacks-fueled-covid-19-racism-threaten-asians/4566376001/ [https://perma.cc/ESJ5-3TGJ]. ↑
- Dan Mangan, Trump Defends Calling Coronavirus ‘Chinese Virus’—‘It’s Not Racist at All’, CNBC (Mar. 18, 2021), https://www.cnbc.com/2020/03/18/coronavirus-criticism-trump-defends-saying-chinese-virus.html [https://perma.cc/M7ZF-TPD6]. ↑
- Cara Kelly, Erin Mansfield, & Brenna Smith, The Atlanta Shooting Put a Spotlight on the Vulnerability of Spa Workers. Many Are Still Routinely Arrested Across Georgia, USA Today (Mar. 31, 2021), https://www.usatoday.com/story/news/
investigations/2021/03/31/georgia-spa-shootings-highlight-worker-vulnerability-threat-arrest/4802368001/ [https://perma.cc/YE4N-9NFC] (“[T]he Atlanta Police Department conducted nine undercover operations at [Gold and Aromatherapy spas] between 2011 and 2014. Those stings led to 12 arrests, nine of them for prostitution. USA Today found no record of police activity at the third shooting location, Young’s Asian Massage, about 30 miles north of Atlanta.”). ↑
- October 6, 2016 marked a landmark date for erotic laborers, as Vice President Kamala Harris, then California Attorney General, announced plans to target the now-defunct free classified advertising website Backpage. After much media furor, the Department of Justice shut down Backpage in 2018. The Justice Department claimed that Backpage was knowingly facilitating child sex trafficking via its adult classified section, which saw a significant amount of growth subsequent to Craigslist shutting down its adult advertising section in 2010. This was a defining political moment for Harris. Harris, then a Senator, had been building a reputation of being “tough on crime,” and was also a co-sponsor for the Stop Enabling Sex Traffickers Act of 2017 (SESTA). SESTA followed another related bill, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA). The enacted legislation, now often packaged as FOSTA-SESTA, has thrust sex workers into the media spotlight and spurred conversations about federal criminalization of sex work. See Merrit Kennedy, Craigslist Shuts Down Personals Section After Congress Passes Bill on Trafficking, NPR (Mar. 23, 2018), https://www.npr.org/
sections/thetwo-way/2018/03/23/596460672/craigslist-shuts-down-personals-section-after-congress-passes-bill-on-trafficking [https://perma.cc/VEG7-QTS2]; see also April Glaser, There Is No New Backpage, Slate (Feb. 13, 2019), https://slate.com/
technology/2019/02/backpage-sex-workers-fosta-sesta-switter-tryst-trafficking.html [https://perma.cc/9CJB-4FX7] (describing how a “government crackdown on online sex trafficking” has impacted the sex industry); Matt Hamilton, Backpage Says Criminal Charges by Kamala Harris Are ‘Election Year Stunt,’ L.A. Times (Oct. 6, 2016), https://www.latimes.com/local/lanow/la-me-ln-backpage-ceo-arrested-charged-20161006-snap-story.html (on file with the Columbia Human Rights Law Review) (exploring claims that Harris and others targeted Backpage as an election stunt orchestrated to appear “tough on crime” while also appearing concerned about children and women’s welfare); Elizabeth Nolan Brown, Secret Memos Show the Government Has Been Lying About Backpage All Along, Reason (Aug. 26, 2019), https://reason.com/
2019/08/26/secret-memos-show-the-government-has-been-lying-about-backpage/ [https://perma.cc/JM2H-FNQB] (describing documents showing that federal officials continued to target Backpage despite their efforts consistenly being hampered by Backpage’s efforts to address trafficking occurring on the site). ↑
- For an example of these massage parlor arrests, see Daniel Barunda, Texas DPS Arrests 8 Women on Prostitution, License Violations at El Paso Massage Parlors, El Paso Times (Nov. 3, 2020), https://www.elpasotimes.com/story/news/crime/2020/
11/03/el-paso-massage-parlors-texas-dps-arrests-8-women-prostitution/6148331002/ [https://perma.cc/KFV2-TC7W]. ↑
- Laura Lammasniemi, ‘White Slavery’: The Origins of the Anti-Trafficking Movement, Open Democracy (Nov. 16, 2017), https://www.opendemocracy.net/
en/beyond-trafficking-and-slavery/white-slavery-origins-of-anti-trafficking-movement/ [https://perma.cc/GGM9-NH4B]. ↑
- Geoff Dempsey, Minor Sex Trafficking: How Well Illinois Protects Children, Patch (Jan. 22, 2019), https://patch.com/illinois/across-il/minor-sex-trafficking-how-well-illinois-protects-children [https://perma.cc/T3Q8-MHV7]. ↑
- Id. ↑
- See Cherice Hopkins, Girls of Color and the Criminalization of Trafficking Survivors, Campaign for Youth Just. (Oct. 12, 2019), https://www.campaignfor
youthjustice.org/2019/item/girls-of-color-and-the-criminalizing-of-trafficking-survivors [https://perma.cc/E62V-5NWF]; see also Neena Satija, Texas Couldn’t Help This Sex-Trafficked Teen, So Authorities Sent Her to Jail, Tex. Tribune (Feb. 15, 2017), https://www.texastribune.org/2017/02/15/texas-sex-trafficked-teens-often-end-jail/ [https://perma.cc/6VTP-U74Y] (detailing the cases of four “at-risk” young women who were arrested for prostitution as minors and how this practice feeds high rates of juvenile incarceration). ↑
- The term “survival sex” was originally applied by academic researchers to runaways, homeless, and at-risk youth trading sex for basic needs (such as a place to sleep or food) or drugs. Urban Institute, Surviving the Streets of New York: Experiences of LGBTQ Youth, YMSM, and YWSW Engaged in Survival Sex 4 (2015). Many studies include both minors and adults under the age of 26. Id. at 15.. It is the author’s belief that, due to power differentials and the structural power that adults hold, this is an imposition on actual youth, specifically minors who lack a distinct voice in the mainstream sex worker rights movement. The term “survival sex” has recently been appropriated by adult sex workers/erotic laborers, usually those who are impoverished, housing insecure, or are drug users. I consider minors to be an oppressed class because they suffer from a distinct lack of economic, cultural, social, and civic rights. Due to their dependency on adults around them, their voices are often absent from various movements which purport to have their best interest in mind. Many adult sex workers are understandably extremely wary of getting involved with or assisting youth who are trading sex in any capacity. Even offering safety tips or allowing a child to crash at your home could result in a trafficking charge for whoever assists them. Chelsea Breakstone, “I Don’t Really Sleep”: Street-Based Sex Work, Public Housing Rights, and Harm Reduction, 18 CUNY L. Rev. 349. Unfortunately, this puts “at-risk” youth in an extreme predicament, at the mercy of the State. Their alleged heightened involvement in the sex trade is a symptom of poverty, capitalism, and bigotry. See generally Juliet Watson, Youth Homelessness and Survival Sex: Intimate Relationships and Gendered Subjectivities (2018). See also Sarah A. Moody & Shawn C. Marsh, Youth at Greater Risk for Being Sex Trafficked If Homeless, LGBTQ, Minority, Juv. Just. Info. Exch. (Aug. 17, 2020), https://jjie.org/2020/08/17/youth-at-greater-risk-for-being-sex-trafficked-if-homeless-lgbtq-minority/ [https://perma.cc/TD8Y-TK7F]. ↑
- Jessica Contrera, He Was Sexually Abusing Underage Girls. Then, Police Said, One of Them Killed Him, Wash. Post (Dec. 17, 2019), https://www.washingtonpost.com/
graphics/2019/local/child-sex-trafficking-murder/ (on file with the Columbia Human Rights Law Review) (describing the case of Chrystul Kizer). ↑
- Id. ↑
- Id. ↑
- Jon Garcia, A Timeline of the Cyntoia Brown Case, Conviction and Successful Bid for Clemency, The Tennessean (Dec. 11, 2018), https://www.tennessean.com/story/
news/2018/12/11/cyntoia-brown-case-facts-story-timeline-2018/2276009002/ [https://perma.cc/Z2NP-JCZZ]. ↑
- See Leah Carroll, How the Justice System Failed Cyntoia Brown, Refinery 29 (Feb. 21, 2018), https://www.refinery29.com/en-us/2018/12/219015/cyntoia-brown-case-facts-real-story [https://perma.cc/TDY6-WHSN]; see also Kate Hodal, Cyntoia Brown: Trafficked, Enslaved, Jailed for Life at 16—and Fighting Back, The Guardian (Oct. 23, 2019), https://www.theguardian.com/global-development/2019/oct/23/cyntoia-brown-long-trafficked-enslaved-jailed-for-life-at-16-and-fighting-back [https://perma.cc/4E3G-DL3H] (providing more detail on the Cyntoia Brown case). ↑
- Melissa Petro, Cut off from the CARES Act, Sex Workers Struggle to Survive the Coronavirus Pandemic, Daily Beast (Oct. 18, 2020), https://www.thedailybeast.com/cut-off-from-the-cares-act-sex-workers-struggle-to-survive-the-coronavirus-pandemic [https://perma.cc/AHF4-DV85] (noting that the CARES Act “shuts out businesses that provide products or performances of a ‘prurient sexual nature.’ The [SBA]’s Economic Injury Disaster Loan Program also requires applicants to check a box confirming they don’t put on ‘live performances of a prurient sexual nature’ or sell products or services of a ‘prurient sexual nature.’”). ↑
- Coronavirus Aid, Relief, and Economic Security Act, 116 Pub. L. 136, 134 Stat. 281 (2020). ↑
- Jacob Serebrin, ‘I Have a Mortgage to Pay’: Sex Workers Banned from Small-Business Loans Under CARES Act Due to ‘Prurient Sexual Nature,’ MarketWatch (May 1, 2020), https://www.marketwatch.com/story/i-have-a-mortgage-to-pay-sex-workers-banned-from-small-business-loans-under-cares-act-due-to-prurient-sexual-nature-2020-05-01 [https://perma.cc/75C8-K6BY]. ↑
- Canela López, People Are Turning to OnlyFans to Earn Money After Losing Their Jobs During the Pandemic, Insider (June 17, 2020), https://www.insider.com/people-are-creating-onlyfans-accounts-after-losing-jobs-during-pandemic-2020-6 [https://perma.cc/AU2Z-QMDL]; see also Andrew J. Horowitz, Don’t Get Caught with Your Employees’ Pants Down—Avoiding Exposure from Your Employees’ “Exposure”, HR Legalist (Mar. 5, 2021), https://www.hrlegalist.com/2021/03/dont-get-caught-with-your-employees-pants-down-avoiding-exposure-from-your-employees-exposure/ [https://perma.cc/FTT8-96G9] (“The popularity of websites like OnlyFans has exploded during the COVID-19 pandemic, as people have sought to replace lost income or earn additional income while stuck at home. This can have dire consequences when it bleeds into the workplace and create no-win scenarios for employers.”). ↑
- Ashley Reese, Children Expelled After School Finds Out About Mom’s OnlyFans Account, Jezebel (Feb. 23, 2021), https://jezebel.com/children-expelled-after-school-finds-out-about-moms-onl-1846339475 (on file with the Columbia Human Rights Law Review). It is hard to imagine what a poor, nonwhite parent would do in a similar situation. Mrs. Jackson makes upwards of $150,000 per month on OnlyFans, which is far from the typical earnings of the average erotic nonwhite erotic laborer. See id. ↑
- Jacob Bernstein, How OnlyFans Changed Sex Work Forever, N.Y. Times (Feb. 9, 2019), https://www.nytimes.com/2019/02/09/style/onlyfans-porn-stars.html (on file with the Columbia Human Rights Law Review) (describing how OnlyFans, which many sex workers use to provide erotic content to subscribers behind paywalls, works). ↑
- Horowitz, supra note 29. ↑
- Id. ↑
- Scott W. Stern, Rethinking Complicity in the Surveillance of Sex Workers: Policing and Prostitution in America’s Model City, 31 Yale J.L. & Feminism 411, 411–12 (2020) (explaining that twentieth century sex workers were threatened primarily by federal agents, social workers, and public health officials, who collaborated with local police to surveil them). ↑
- Kate Cox, Pornhub Squarely Targeted in Bipartisan Bill to Regulate Sex Work Online, Ars Technica (Dec. 21, 2020), https://arstechnica.com/tech-policy/2020/
12/pornhub-squarely-targeted-in-bipartisan-bill-to-regulate-sex-work-online/ [https://perma.cc/2866-GBXC]. ↑
- “Wage slavery” is not even an overstatement. Data shows that “hours and weeks worked have increased” for both Black and white workers, with Black workers in the bottom 40% of the wage distribution reporting a larger increase for much lower wages. See Janelle Jones & Valerie Wilson, Low-Wage African American Workers Have Increased Annual Work Hours Most Since 1979, Econ. Pol’y Inst. (Mar. 27, 2017), https://www.epi.org/blog/low-wage-african-american-workers-have-increased-annual-work-hours-most-since-1979 [https://perma.cc/M46G-WZ5Y]; see also Jonathan Rothwell & Lydia Saad, How Have U.S. Working Women Fared During the Pandemic?, Gallup (Mar. 8, 2021), https://news.gallup.com/poll/330533/working-women-fared-during-pandemic.aspx [https://perma.cc/Q6VQ-GQ2Q] (showing that most erotic laborers are women/non-men, and many are parents); Julie Moreau, LGBTQ People Face Higher Unemployment Amid Coronavirus Pandemic, Survey Finds, NBC News (May 12, 2020), https://www.nbcnews.com/feature/nbc-out/lgbtq-people-face-higher-unemployment-amid-coronavirus-pandemic-survey-finds-n1205296 [https://perma.cc/
KZT8-YTYV] (noting that 17% of LGBTQ people polled lost their jobs because of COVID-19, compared to 13% of the general population, and that gay, bisexual, and transgender people are disproportionately represented in the sex worker community.); Thuy Lan Nguyen, Gender Wage Gap Shrank Because of COVID-19, But That’s Not a Good Thing, 13WMAZ (Mar. 14, 2021), https://www.13wmaz.com/article/money/economy/
gender-wage-gap-shrank-of-covid-19/67-4b6617b2-9d4c-4e21-b51a-67bd366b4105 [https://perma.cc/65DG-8WCS] (showing that more low-wage women were put out of work than men during the pandemic). See generally Armagan Gezici & Ozge Ozay, An Intersectional Analysis of COVID-19 Unemployment, J. Econ., Race, & Pol’y (2020) (exploring the racialized and gendered effects of the COVID-19 pandemic on the probability of being unemployed). ↑
- Sex workers and erotic laborers are a broad collective, drawn from every political party, class, race, ethnicity, etc. Like the general population, they have varying political views. Some are feminists, some are womanists. There are various feminisms and womanisms, including “sex positive feminism,” queer and trans feminisms, and “proheaux womanism” (proheauxism). Some are drawn to libertarianism because of its anti-State views. The Libertarian Party is the only political party thus far to publicly announce their support for the decriminalization of sex work. See Elizabeth Nolan Brown, Libertarian Party Adopts New Sex Work Plank, Becomes Only Notable U.S. Party to Endorse Prostitution Decriminalization, Reason (July 2, 2018), https://reason.com/2018/
07/02/libertarians-call-for-sex-work-decrim/ [https://perma.cc/T8TV-M3FK]; see also Lara Gerassi, A Heated Debate: Theoretical Perspectives of Sexual Exploitation and Sex Work, 42 J. Socio. & Soc. Welfare 79, 79 (2016) (providing a “comprehensive overview of the philosophical, legal, and political perspectives pertaining to sexual exploitation of women and girls while addressing the subsequent controversies in the field”); Peter Frase, The Problem with (Sex) Work, Jacobin Mag. (Mar. 28, 2012), https://jacobinmag.com/2012/03/the-problem-with-sex-work [https://perma.cc/
M2B4-269F] (discussing sex work as antiwork/nonwork, which literally means “against work,” and the degradation capitalism causes). ↑
- “Decriminalization” is already a precise enough legal term. It was coined by anthropology professor Jennifer James to directly challenge the criminalization of prostitution. Brooke Meredith Beloso, Sex, Work, and the Feminist Erasure of Class, 38 J. of Women in Culture & Society 47, 47. It was coined directly in relation to sex work, with the goal of eliminating legislation that targets or criminalizes sex workers. Ronald Weitzer, Prostitutes’ Rights in the United States: The Failure of a Movement, 32 Sociological Quarterly 25 (1991). It is also often applied to drug policy. See generally Drug Policy Alliance, It’s Time for the U.S. to Decriminalize Drug Use and Possession (2017). “Full decriminalization,” is often contrasted with what advocates call “partial decriminalization.” An example of this would be the Nordic model. Why Sex Work Should Be Decriminalized, Human Rights Watch (Aug. 7, 2019), https://www.hrw.org/
WR9A-6NSL]. However, models such as the Nordic Model, which criminalize the clients of sex workers, indirectly criminalize and directly marginalize and stigmatize sex workers by penalizing their clients and exposing them to police violence. Under the Nordic Model, sex work is still criminalized—even though sex workers are not prosecuted for it. Criminalization is criminalization, even if the state attempts to hide it by adopting new models. These models, which are not endorsed by sex worker advocates and organizations, are a perversion of the meaning of decriminalization. If anything, these models are a mode of partial criminalization. See Brooke M. Beloso, Sex, Work, and the Feminist Erasure of Class, 38 Signs: J. Women Culture & Soc’y 47, 47–70 (2012). ↑
- Heather Berg and the author recently discussed the possibility of unions and/or cooperatives for sex workers (prostitutes). Antitrust laws remain a barrier to this idea. Currently, sex workers are able to charge whatever they want, depending on the market, basing their charges on the identity of their main clientele, the region in which they work, their “look,” etc. Unfortunately, discrimination is completely acceptable in the sex industry, just as it is in other looks-based industries, such as modeling. This puts sex workers in a predicament. How would we come to an agreement on price ranges in an industry where racism, classism, and ableism are compounded? It does not seem feasible. Standardizing prices would likely cause resentment among higher earning workers who are used to earning a lot more money than low earning workers. It also would not stop low earning workers from charging under the table in times of need. I suggest a mutual aid arrangement, where higher earning sex workers agree to commit a certain percentage of their income to redistribute to other, poorer workers. Of course, this is basically an honor system, and this set-up could also possibly stoke racial and class tensions. ↑
- See Pedro Ribiero, Senzala or Quilombo: Reflections on APOC and the Fate of Black Anarchism, Black Rose Anarchist Fed’n (May 29, 2018), https://blackrosefed.org/
senzala-or-quilombo-black-anarchism/ [https://perma.cc/DH4J-3VMC]. ↑
- For more on the term “erotic dance” and the history that led to the colonization/eroticization of “exotic,” see generally Jean-François Staszak, Exotic Dance, Erotic Dance: Displaying the Other’s Body from the 18th to the 20th Century, 660–61 Annales de Géographie 129 (2008). ↑
- Adrienne D. Davis has described this internal political tension perfectly, stating: “First generation debates centered on whether feminists should support or oppose sex work. Second generation debates delve deeper into questions of how sex work should be regulated, or why it shouldn’t be regulated . . . . [I]n the arena of sex work, the feminist regulatory imagination remains stuck, unable to recognize the latent tension between assimilation and erotic exceptionalism[.]” Adrienne D. Davis, Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor, 103 Cal. L. Rev. 1195, 1202 (2015). ↑
- “The term essential labor has been adopted by governments worldwide to designate occupations without which the basic needs of citizens supposedly cannot be met. To date, no government has deemed the labor of sex workers to be essential, even in societies where sexual services are decriminalized or legalized.” Alex J. Nelson et al., Soc’y for the Anthropology of Work, Sex Work During the COVID-19 Pandemic (2020), available at https://saw.americananthro.org/pub/sex-work-during-the-covid-19-pandemic/release/1 [https://perma.cc/7TG7-LWAT]. ↑
- For more on the rationale behind the usage of the gender neutral “Latine” over “Latinx,” see Terry Blas, “Latinx” Is Growing in Popularity. I Made a Comic to Help You Understand Why, Vox (Oct. 23, 2019), https://www.vox.com/the-highlight/2019/
10/15/20914347/latin-latina-latino-latinx-means (on file with the Columbia Human Rights Law Review). ↑
- I coined the word “lupephobia” to replace “whorephobia” in my lexicon. Lupephobia (n.): (1) Dislike of or prejudice against people who are perceived to be promiscuous, or who have casual, transactional, or indiscriminate sex or erotic encounters. (2) Sexual stigma that is usually prescribed to sex workers, bisexuals, gay men, and transgender people based on their identity, occupation, or sexual orientation. From the Latin word lupa, which means “she-wolf,” slang for prostitute. It is not about “polite speech” or respectability, though “whore” from hoor may have “shifted by influence of Middle English homonym hore ‘physical filth, slime,’ also ‘moral corruption, sin,’ from Old English ‘horh’ and is a “general term of abuse for an unchaste or lewd woman (without regard to money).” Whore, Online Etymology Dictionary, https://www.etymonline.com/word/whore [https://perma.cc/56GD-SZJS]. My choice of lupe, rather than lupa, is deliberately gender neutral. “Pornephobia” could be used to describe a specific distaste for those who have filmed transactional sex or otherwise publicly display erotic behavior, or for pornography specifically. “Greek porne ‘prostitute’ is related to pernemi ‘sell,’ with an original notion probably of a female slave sold for prostitution.” Id.; see also moses moon (@thotscholar), Twitter (Apr. 3, 2021, 7:20 PM), https://twitter.com/thotscholar/status/1378487665511780357 (using “lupephobia” for the first time) (on file with the Columbia Human Rights Law Review). ↑
- There is a point/counterpoint piece in the SPREAD anthology that illustrates this dynamic. Former stripper Mary Taylor claims that strippers used to make “an honest day’s pay for an honest day’s work” and that “legitimate” dancers are being displaced by prostitutes (full-service sex workers) or pressured into doing “dirty” dances by the over-sexed competition. See $pread: The Best of the Magazine that Illuminated the Sex Industry and Started a Media Revolution 66–68 (Rachel Aimee, Eliyanna Kaiser, & Audacia Ray eds. 2015) [hereinafter $pread Anthology]. In addition to the removal of agency from the dancers “forced” to do “extras,” Taylor claims that it was prostitutes who caused club owners to start charging club/house fees. Id. at 66–67. Beyond that, blaming the prostitutes who wanted to get off the streets places the onus of men’s behavior and willingness to take advantage of women on other women. If strippers want prostitutes out of the club then they should support brothels instead of promoting lupephobia (which affects all erotic laborers, regardless of profession).. ↑
- EJ Dickson, What’s Next for Genea Sky, the Exotic Dancer Whose Fall off a Pole Went Viral, Rolling Stone (Feb. 14, 2020), https://www.rollingstone.com/culture/
- Erin Mulvaney & Andrew Wallender, Strippers Winning Employee Status Challenges Gig Economy’s Norms, Bloomberg L. (Oct. 21, 2019), https://news.bloomberg
law.com/daily-labor-report/strippers-winning-employee-status-challenges-gig-economys-norms [https://perma.cc/L8JG-MQFJ]. ↑
- Valeeriya Safronova, Strippers Are Doing It For Themselves, N.Y. Times (July 24, 2019), https://www.nytimes.com/2019/07/24/style/strip-clubs.html (on file with the Columbia Human Rights Law Review). ↑
- Before I had internet access, and before I joined Black atheist, feminist, and sex worker communities, I referred to myself as a “hoe,” a “hustler,” or other playful monikers. The only time I saw the term “sex work” used was by white or academic women. Where many white, or younger, sex workers eschew the term “prostitute” in favor of the former term, it feels like an imposition. It feels like work. In her book, Funk the Erotic: Transaesthetics and Black Sexual Cultures, L.H. Stallings calls people like me:[S]exual guerrillas, currently defined as sex workers . . . [who] represent a radical spirit of revolt against antierotic, sex-negative, and work[-]centric elements of society that get lost in the guise of survival rhetoric, individualism, moral and health panics, and . . . a Protestant work ethic . . . . The decision to trade sex has to be seen as not only a survival tactic like no other, but a radical reading and position against the current order of work society as well.L.H. Stallings, Funk the Erotic: Transaesthetics and Black Sexual Cultures 20–21 (2015); see also Anti-work, Anarchist Libr., https://theanarchistlibrary.org/category/
topic/anti-work [https://perma.cc/975Z-BE8F] (collecting essays and excerpts on the philosophy of “antiwork,” which appears in both anarchist and socialist political theory). ↑
- See Kathi Weeks, The Problem with Work: Feminism, Marxism, Antiwork Politics, and Postwork Imaginaries 67 (2011). ↑
- $pread Anthology, supra note 46 at 12–13. ↑
- Id. at 13. ↑
- See Crystal A. Jackson et al., Strange Confluences: Radical Feminism and Evangelical Christianity as Drivers of U.S. Neo-Abolitionism, in Feminism, Prostitution and the State, 66, 66–85 (Eilís Ward & Gillia Wylie eds., 2017); see also Melissa Gira Grant, Beyond Strange Bedfellows: How the “War on Trafficking” Was Made to Unite the Left and Right, Pol. Eye (2018), https://feature.politicalresearch.org/beyond-strange-bedfellows [https://perma.cc/8HB7-DFJU] (providing a brief history of the alliance formed between liberals, conservatives, and anti-prostitution feminists). ↑
- From the introduction of the $pread Magazine anthology:As sex trafficking became recognized as an important problem in the United States, many “anti-sex work feminists” began to use the words “trafficking” and “prostitution” as synonyms, both in their rhetoric, and in their policy-making and lobbying . . . . To claim choice meant challenging institutional feminism. And to claim coercion meant being trapped in victim-status . . . . Sex workers have long been in the crossfire of warring feminists, and the rhetoric of empowerment was understandably more alluring than degradation . . . the alliance . . . was sometimes problematic because it led to a culture in which it was necessary to constantly assert one’s autonomy, even if that meant not speaking up about experiencing violence, coercion, or personal difficulty with sexual shame, thus favoring those who were most empowered (or able to pass as empowered) by their work: mostly white, middle-class, non-immigrant, cisgender women.$pread Anthology, supra note 43, at 11–13. ↑
- Audre Lorde, Sister Outsider 55 (1984). ↑
- Amalia L. Cabezas’s discussion of “sex-affective” relationships in her book also informs this Introduction. Cabeza wrote:I strive to challenge the notion of ‘sex worker’ that is often applied to racialized working-class women who participate in relationships with foreign born men by detailing the ways in which third-world women negotiate new economies and navigate the contact zones between the first and third worlds by using tactical sex. I explore the ways in which practices and identities are discursively inscribed to eroticize racialized, working-class subjects. My argument is that the exchange of goods and money for sexual services is not an unambiguous commercial endeavor but a discursive construction that is contested and in motion, changing across time and space.Amalia L. Cabezas, Economies of Desire: Sex and Tourism in Cuba and the Dominican Republic 4 (2009). ↑
- Id. ↑
- femi babylon, thotscholar: A Working Theory of Proheaux (Woman)ism [Revised 2019], Patreon (Sept. 9, 2019), https://www.patreon.com/posts/thotscholar-of-1-29836133 (on file with the Columbia Human Rights Law Review) (internal citations omitted). ↑
- See Lorde, supra note 57, at 55. ↑
- See id. ↑
In the spring of 2018, Congress passed the Allow States and Victims to Fight Online Trafficking Act of 2017 (FOSTA), which combined a House bill of the same name with provisions from a Senate bill, the Stop Enabling Sex Traffickers Act (SESTA). FOSTA as passed makes changes to three federal statutory schemes: the Communications Decency Act (Section 230), the Trafficking Victims Protection Act (TVPA), and the Mann Act. Members of Congress claimed FOSTA would fix loopholes in those statutory schemes through which they believed websites such as Backpage.com had avoided liability for sex trafficking.
This Article analyzes the legal reality of FOSTA, fully exploring its changes to the Mann Act and the TVPA in context along with the more broadly discussed changes to Section 230. When contextualized, the changes to 230 are far less broad than initially reported, with a strict textual reading of the amendments resulting in relatively little change to immunity in most circumstances. The new criminal provisions, on the other hand, have the potential to criminalize vast amounts of speech and advocacy. This Article is the first piece to comprehensively analyze the scope of all of these various components of the law.
. Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 1115-164, 132 Stat. 1253 (codified as amended in scattered sections of 18 and 47 U.S.C.) (2018). For the sake of simplicity, this Article refers to the combined bill as FOSTA.Download the PDF
This Article explores independent contractor misclassification through the lens of porn performance. As elsewhere in the gig economy, ubiquitous misclassification allows porn employers to extract maximum profits and enact significant levels of workplace control while also avoiding compliance with standard workplace protections. This Article argues, however, that remedying that misclassification with employer acknowledged and state enforced employee status is not the clean solution many outside the industry imagine it to be. It cautions against recent efforts to refine the qualifications of independent contractor status to meet the realities of the gig economy more broadly. Most performers would rather have no bosses at all than bosses disciplined by a still weak system of worker protection, and a pro-worker regulatory approach should take this desire seriously. Rather than reinforcing artificial boundaries between workers and contractors, this Article advocates a policy approach which supports worker autonomy and detaches benefits and protections from employment status.Download the PDF
Usage of the phrase “modern day slavery” to describe human trafficking, especially sex trafficking, is widespread despite work by numerous scholars and activists to point out how such usage harms attempts to remedy both slavery and trafficking. In order to more clearly recognize the continuing harms of this usage, it is imperative that we know its history. This Article describes two origin points in American law, the 1875 Page Act and the 1910 White Slave Traffic Act, that can be understood as the precursors to contemporary usage of “modern day slavery” as well as to contemporary usage of criminal and immigration law to address trafficking. In the late 1800s and the early 1900s, claims of a “new slavery” that was depicted as “worse” than chattel slavery were used to create restrictive, racialized immigration laws and racialized federal policing of domestic movement that in fact exacerbated the harms of chattel slavery while also expanding the reach of anti-Asian stereotypes and solidifying white supremacy in the structure of U.S. government. This same impact continues with the use of “modern day slavery” language today. By examining the rhetoric used by activists and politicians in both 1875 and 1910, this Article illustrates how contemporary usage of “modern day slavery” upholds and furthers the white supremacist tropes and racist stereotypes created to justify immigration restriction in 1875 and federal criminalization of Black and immigrant men in 1910. Further, this Article shows how these white supremacist stereotypes were used immediately after the passage of the Reconstruction Amendments and into the early 20th century toward the same ends that they are often used toward today in discussions of human trafficking. First, to claim that slavery is most importantly a harm to whiteness and that redressing the continuing impact of hundreds of years of enslavement of Africans and African Americans must be put aside in order to address the ostensibly more urgent impact of “modern day slavery” fashioned as a harm to white women. Second, to solidify U.S. imperialism and racial capitalism through anti-Asian stereotypes depicting Asian women as vulnerable and submissive and Asian people as the source of contagious illness.Download the PDF
The Many Lives of a ‘Win’: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society considers the recent strategic litigation challenging Canada’s criminal laws surrounding sex work as unconstitutional. Although the Supreme Court of Canada struck down the laws, which was hailed as a ‘win’ for sex workers, the Conservative Party subsequently implemented the ‘Nordic model’ of asymmetrical criminalization. The Article traces through this recent history, and argues that although the litigation did not achieve the substantive ‘win’ that its proponents had hoped for, it has made a significant contribution to access to justice in Canada.Download the PDF
A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a “fatal lottery,” with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County—the state’s largest county and location of the nation’s fifth largest city—were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo’s appeal. What the Arizona Supreme Court conceded, and what the evidence showed, was the expansive criteria for death eligibility made it impossible for states to “perform the ‘constitutionally necessary’ narrowing function at the stage of legislative definition” to prevent “a pattern of arbitrary and capricious sentencing.”
Nearly fifty years ago, in Furman v. Georgia, the U.S. Supreme Court cited these same conditions as violating the Eighth Amendment’s cruel and unusual punishment clause to rule the nation’s death penalty statutes unconstitutional. This overbreadth is exactly the opposite of the constitutional requirements set forth over fifty years ago in Furman and four years later in Gregg, seminal U.S. Supreme Court decisions that changed the landscape of capital punishment and created the architecture of the modern death penalty. These cases sought to avoid not only arbitrary but racist outcomes by narrowing capital punishment to a very small subset of cases.
Following the denial by the Arizona Supreme Court but citing its acceptance of the validity of his evidentiary claim, Mr. Hidalgo turned to the U.S. Supreme Court for a review of Arizona’s capital sentencing statute. He again advanced his claim that with so many aggravating circumstances, almost every defendant convicted of first-degree murder would be eligible for the death penalty, a gross violation of Furman’s narrowing requirement and in violation of the Eighth Amendment’s cruel and unusual punishment clause.
Although the Supreme Court declined to take the Hidalgo case, Justice Breyer and three other Justices issued a statement calling for further analysis of whether states have complied with the narrowing requirements set forth in the two core cases of Furman and Gregg. Breyer’s statement noted that “evidence of this kind warrants careful attention and evaluation.” He went on to say that “capital defendants may have the opportunity to fully develop a record with the kind of empirical evidence” that can put these claims to a constitutional test.
Justice Breyer’s Statement signaled that four sitting Justices shared deep concerns about whether “states perform the ‘constitutionally necessary’ narrowing function at the stage of legislative definition” to prevent “a pattern of arbitrary and capricious sentencing.” The Statement went a step further, suggesting a willingness to ask whether statutes, in their operation, are constitutionally suspect, and to apply empirical evidence to address this question. The Furman questions have expanded since the resumption of executions following Gregg. What now matters is not just the statutory architecture of death eligibility—the number of aggravators—but also their scope or reach and their ability to narrow to distinguish “the few cases in which [the death penalty] is imposed from the many cases in which it is not.”
Developing the fact record that Justice Breyer suggests would provide the basis for assessing the constitutionality of a death penalty statute requires a set of thorough, well-designed empirical studies of potentially death-eligible homicides spanning several decades and across several statutory contexts. Determining the breadth of Arizona’s and other states’ statutes requires analyses of the underlying facts of thousands of homicide cases to estimate the rate of death eligibility among them. Because there is no centralized repository of this information, these studies require the collection of records from multiple courthouses and law enforcement agencies, systematic encoding of the information, and analyses tailored to specific statutory eras to determine how broadly the statute operates. It is a daunting challenge, but one that a community of scholars is prepared to meet. The essays in this Symposium are a first step in that direction.
Introduction to the Symposium
This Symposium introduces new research from death sentencing states and local jurisdictions to begin the task of meeting Justice Breyer’s challenge. Researchers and legal scholars convened at Columbia Law School in October 2019 to present empirical and doctrinal scholarship that examines the extent and sources of the overbreadth of capital statutes that was shown fifty years ago in Furman. That overbreadth has re-emerged to show that the failure to narrow is endemic in many of the nation’s death sentencing statutes. These contributions illustrate several features of both statutory design and the institutional practices that replicate the conditions cited by the Furman court to produce regimes of overbreadth, arbitrariness and racial and ethnic disparities.
Professors Catherine Grosso, Barbara O’Brien, and Julie Roberts follow the blueprint designed by Anthony Amsterdam in 2007 in this law review to develop a thick case study of death charging and sentencing practices in Hamilton County, Ohio. The county, which includes Cincinnati, sits on the southern border of Ohio, across the Ohio River from Kentucky. Its history reflects a set of customs and social structures that span both the southern U.S. states and their industrialized northern counterparts. The authors show that over a twenty-five-year period, racial discrimination combines with diffuse statutory eligibility criteria to animate and instantiate the twin concerns of the Furman court: arbitrary death sentences that are imposed in a discriminatory pattern on African-American defendants. Drawing on a historical record and longstanding patterns of discrimination by police and courts, their analysis shows the endogeneity of capital punishment and racial bias in everyday practices in the courts, built on a racially troubled policing regime. Their explanation of the sources and extent of disparate death-seeking follows what Professor Amsterdam envisioned in his call for analyses of death penalty statutes and practices in a rich and deeply contextualized manner.
Hannah Gorman and Margot Ravenscroft, each both a litigator and advocate, remind us that Florida has been among the most aggressive death sentencing states since Furman, and also among the most controversial. Its record of legislative activism created a one-way ratchet to expand death eligibility starting almost immediately after the 1972 Furman ruling. Florida’s statute includes twenty-six enumerated aggravators, and it was one of the first states to create death eligibility for drug delivery in a death. Florida’s patterns of death sentencing, exonerations, and Supreme Court interventions set it apart from nearly every other death sentencing state. Florida’s legislature has battled to retain its unrealistic and rigid view of intellectual disability, and delegates the narrowing function to the prosecutor, not the legislature, in a statutory design similar to the defects that Justice Breyer cited in Hidalgo. Gorman and Ravenscroft reveal empirically how the extent of regional disparity, exploitation by prosecutors of the non-unanimity requirement and statutory expansiveness, and the failure to regulate juror misunderstanding of such basic elements of law as mitigation, create a picture of a de-regulated death penalty system and a dense matrix of Furman problems.
Alexis Hoag is a litigator with deep experience in the convergence of race and arbitrariness in regimes of capital punishment in the U.S. Her doctrinal contribution to the Symposium locates the overbreadth of capital punishment with its seemingly endemic racial disparity in Fourteenth Amendment equal protection doctrine. She departs from the robust claims of racial bias in charging and sentencing of Black defendants, empirical claims that have been muted as constitutional bases of discrimination in the three decades since McCleskey v. Kemp shut down such claims absent a smoking gun of intentional bias. Hoag pivots to the robust empirical evidence of bias in charging and sentencing of killers of White victims, and the inattention by prosecutors in charging defendants of all races and ethnicities to justice for those victims. This devaluation of Black life demands a constitutional remedy under Equal Protection, over and above the Eighth Amendment protections against arbitrary and capricious death sentences. This diminution of the value of life is the essence of Equal Protection law. But the rush to balance these scales without a surgical reduction in eligibility would inevitably worsen the problems of arbitrariness that infect the modern death penalty. For Hoag, abolition of the death penalty is the answer to resolve this tension and balance the values of all lives.
Professor Mona Lynch cites two constitutional flaws in California’s expansive list of “special circumstances,” or statutory aggravators. First is the startling overbreadth of the California death eligibility statute. If the legislature is responsible for the narrowing task proscribed by Furman, then California has failed spectacularly. The breadth of these eligibility factors creates an extraordinarily broad and heterogeneous defendant population. This leads directly to the second problem: the “messier” practice assigned to juries to decide whether the presence of one or more of these circumstances merits a death sentence. Lynch shows how jurors are “swamped” by these multiple indicia of death eligibility, and exerts undue influence on the jury’s sentencing decision. The breadth of these factors burdens jurors who then have to weight these expansive and standardless criteria against mitigation evidence. That jurors have a hard time understanding and applying the law, and making life or death decisions, is revealed in startling and troubling results of a unique set of empirical studies.
Professors Scott Phillips and Trent Steidley expand on Phillips’ earlier work on Texas’ “fatal lottery” to develop evidence of a “systematic lottery” where certain victim-offender killings are systematically declared death eligible, while victim-offender cases are often ignored. They restate the Furman and Hidalgo claims of arbitrariness and overbreadth as two sides of the same coin: death sentencing as so rare as to be “virtually random,” and “yet death sentences are patterned by the race and gender of the victim.” Phillips and Steidley make the trenchant insight into the intersection of the Hidalgo and Furman claims: that the death penalty can be indiscriminate and discriminatory at the same time. The work takes on added importance by focusing on Texas, the most active death sentencing and execution state in the U.S. since reinstatement of capital punishment following Gregg.
A critical implication of the Hidalgo litigation is its reliance on a single-county case study of Maricopa County. Despite the limitations in the evidence record in Hidalgo, Justice Breyer’s statement, signed by three other Justices, suggests that a single-county case study can have constitutional weight in the jurisprudence of capital punishment. Professors Steven Shatz, Michael Pierce, and Glenn Radelet provide evidence—from the largest single-county case study to date—of systematic bias in charging and sentencing, patterns that replicate the statewide evidence in McCleskey over thirty years ago showing particular bias in cases of Black defendants killing White victims. Shatz and colleagues point out that the McCleskey court was amenable to “a sufficiently large single-county study” that can reproduce the statewide findings in that case. The patterns of bias and overbreadth in San Diego County align with Professor Lynch’s showing of the potential for bias and error in the capacious death eligibility criteria in California. These discoveries, when viewed along Professor Grosso and colleagues’ showing in Hamilton County (Ohio), begin to form what Amsterdam envisioned in his original blueprint: a link between social contexts and empirical analyses to show an emerging pattern of county-level constitutional as applied defects in the administration of the death penalty.
Prior to the repeal of Colorado’s death penalty statute in March 2020, research on overbreadth and racial discrimination in charging and sentencing in the state had revealed the pattern of constitutional defects that the Furman Court had warned against nearly 50 years ago. The essay in this volume by Professors Sam Kamin and Justin Marceau, Hidalgo v. Arizona and Non-Narrowing Challenges, reveals not only the presence of the Furman defects of capricious, arbitrary and biased death sentencing in Colorado, but the presence of the same conditions of overbreadth that plagued the Arizona statute discussed by Justice Breyer in his statement in the denial of certiorari in Hidalgo. Kamin and Marceau join the Furman and Hidalgo challenges to provide a blueprint for a state-level challenge highlighting the insurmountable obstacles to resolving the defects cited in Furman and the aspirations of the Gregg design to remedy those flaws. Their focus on the capacity of a death statute to narrow provides the blueprint for the future empirical work, where the fundamental empirical facts about a statute’s inability to narrow are transparent and are blended with the trial facts that draw directly on the defective statute, to provide a record that can only be denied if a court is willing to simply set aside its own constitutional foundations and precedents.
In the final essay in the Symposium, Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing, Joseph Perkovich, a capital defense attorney, revisits the Hidalgo holding in the Arizona Supreme Court and the denial of certiorari by the U.S. Supreme Court. He links Justice Breyer’s call for an empirical assessment of the constitutional weight of statistical evidence to the precedents set in two earlier U.S. Supreme Court precedents that perhaps should have but didn’t turn on statistical evidence: Lockhart v. McCree and McCleskey v. Kemp. In each case, the Court turned a blind eye to evidence that it otherwise accepted as “methodologically valid”: Lockhart on stacking the deck in jury composition with death-inclined jurors and McCleskey on racial discrimination by prosecutors in their decisions to seek the death penalty. Like the evidence in Hidalgo, the facts in these cases carried enormous weight in the constitutional adjudication of capital punishment, but were swept away with some animus by the Court. Perkovich calls for the reversal of the Court’s anti-science hostility toward the types of robust evidence proffered in each of these cases, asking instead for an open-minded and neutral embrace of the types of complex statistical evidence and experimentation that Justice Breyer and the other justices seek to apply in Hidalgo. His solution goes beyond the Hidalgo episode to create a place for carefully empirically crafted adjudicative facts to bear strong weight in resolving colorable constitutional claims on the death penalty. In doing so, Perkovich returns us to Professor Amsterdam’s blueprint not just on claims of race bias, but on the necessity for a rich and deep body of empirical evidence to resolve constitutional challenges to capital punishment.
We are at a unique and critical moment in the future of the death penalty in the United States. Justice Breyer has opened a new path for researchers and legal scholars to assess the constitutionality of the death penalty, and to create a space for empirical facts that speak directly to the doctrinal issues in constitutional adjudication of capital punishment that have occupied the Court since well before Furman. The articles in this Symposium shed light on this path, showing the critical intersection of Eighth Amendment arbitrariness and Fourteenth Amendment equal protection violations in the emerging jurisprudence of the death penalty, including the centrality of race in both constitutional defects. These studies present a new way to challenge the basic architecture of the modern death penalty, building on and merging the existing doctrines. They illustrate a paradigm for empirical constitutional research on the modern practice of capital punishment, and whether Furman’s constitutional design can cure what may be incurable flaws.
* We thank the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University for its generous support for the Symposium. The Academy for Justice is dedicated to making non-partisan, fact-based academic research available to broad audiences with the goal of creating a criminal justice system in which actual practices reflect best practices.
. Scott Phillips & Alena Simon, Is the Modern Death Penalty a Fatal Lottery? Texas as a Conservative Test, 3 Laws 85, 92 (2014) (describing the pattern of arbitrary and capricious death sentencing as a “fatal lottery”).
. Petition for Certiorari, Hidalgo v. Arizona, No. 17-251, 2017 WL 3531089 at *1 (Aug. 14, 2017).
. Id. Hidalgo’s defense team submitted empirical evidence showing that of the 866 first degree murder cases prosecuted in Maricopa County between 2002 and 2012, 97.8% were capital-eligible. See Cassia Spohn, Aggravating Circumstances in First-Degree Murder Cases, Maricopa County, AZ: 2002–2012 (2018), https://ccj.asu.edu/sites/default/files/death_penalty_report.pdf [https://perma.cc/3TJK-FSNL]. Two different versions of the Arizona statute, one with 10 factors and a second with 14 factors, failed to perform the constitutionally required narrowing.
. State v. Hidalgo, 390 P.3d 783, 791 (Ariz. 2017) (assuming that “Hidalgo is right in his factual assertion that nearly every charged first degree murder could support at least one aggravating circumstance”).
. Id. See also Hidalgo v. Arizona, 138 S. Ct. 1054, 1057 (2018) (Breyer, J., statement respecting the denial of certiorari) (quoting Zant v. Stephens, 462 U.S. 862, 878 (1983)). The Furman Court stated that narrowing was necessary to avoid a pattern of arbitrary and capricious punishments that would violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Furman v. Georgia, 408 U.S. 238, 295 (1972).
. Furman, 408 U.S. at 295; see David C. Baldus, George Woodworth, Michael Laurence, Jeffrey Fagan, Catherine M. Grosso & Richard Newell, Furman at 40: Constitutional Challenges from California’s Failure to (Again) Narrow Death Eligibility, 16 J. Emp. Leg. Stud. 693 (2019).
. Furman, 408 U.S.at 313 (1972) (White, J., concurring) (stating that a death-sentencing procedure is unconstitutional if it provides “no meaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not.”).
. 428 U.S. 153, 189 (1976) (plurality opinion) (“Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”).
. The Furman Court linked arbitrary patterns of sentencing with racial disparities in sentencing: “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” 408 U.S. at 242 (Douglas, J., concurring); see also Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David Baldus, George Woodworth & Richard Newell, Death by Stereotype: Race, Ethnicity and California’s Failure to Implement Furman’s Narrowing Requirement, 66 UCLA L. Rev. 1394 (2019) (finding that several of California’s aggravating circumstances are applied disparately based on the race or ethnicity of the defendant).
. Petition for Certiorari, Hidalgo v. Arizona, No. 17-251, 2017 WL 3531089 at *1 (Aug. 14, 2017). Following Gregg, Arizona provided nine statutory aggravators. At the time of Hidalgo’s conviction, the Arizona statute contained 10 aggravators. By the time Mr. Hidalgo filed his petition for certiorari, Arizona had 14. Subsequently, on April 10, 2019, the Arizona Governor signed legislation that removed or significantly modified three of the statutory aggravators: (1) if the defendant created a grave risk of death to another person in addition to the person murdered; (2) if the offense was committed in a cold, calculated manner without pretense of moral or legal justification; and (3) if the defendant used a remote stun gun in the commission of the offense as defined in the statute. See Ariz. Rev. Stat. Ann. § 13-751 (2019).
. Hidalgo v. Arizona, 138 S. Ct. 1054, 1054 (2018).
. Id. (Breyer, J., statement respecting the denial of certiorari).
. Id. at 1057.
. Furman v. Georgia, 408 U.S. 238, 313 (White, J., concurring); see John Mills, How to Assess the Real World Application of a Capital Sentencing Statute: A Response to Professor Flanders’ Comment, 51 U.C. Davis L. Rev. Online 77, 80 (2017).
. Anthony G. Amsterdam, Opening Remarks: Race and the Death Penalty Before and After McCleskey, 39 Colum. Hum. Rts. L. Rev. 34, 49 (2007).
. Catherine M. Grosso, Barbara O’Brien & Julie C. Roberts, Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992–August 2017), 51 Colum. Hum. Rts. L. Rev. 904 (2020).
. Hannah L. Gorman & Margot Ravenscroft, Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row, 51 Colum. Hum. Rts. L. Rev. 937 (2020).
. Fla. Stat. § 782.04(1)(a) (2019).
. Fla. Stat. §§ 782.04(3), 775.082 (2019).
. Hidalgo v. Arizona, 138 S. Ct. 1054, 1057 (2018) (Breyer, J., statement respecting the denial of certiorari).
. Alexis Hoag, Valuing Black Lives: A Case for Ending the Death Penalty, 51 Colum. Hum. Rts. L. Rev. 985 (2020).
. McCleskey v. Kemp, 481 U.S. 279 (1987).
. See Amsterdam, supra note 17, at 45–47. See, e.g. Randal Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev. 1388, 1392 (1988) (discussing in-group bias in black homicides).
. Hoag is careful to locate the devaluation of Black victim lives but never loses sight of the deep and persistent bias toward Black defendants.
. Mona Lynch, Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System, 51 Colum. Hum. Rts. L. Rev. 1010 (2020).
. David C. Baldus et al., Furman at 40, supra note 6 (showing that over 90% of first degree murder convictions are death eligible under California’s “special circumstances.”).
. Hidalgo, 138 S. Ct. at 1054 (Breyer, J., statement respecting the denial of certiorari) (“To satisfy the ‘narrowing requirement,’ a state legislature must adopt ‘statutory factors which determine death eligibility’ and thereby ‘limit the class of murderers to which the death penalty may be applied.’”).
. See, e.g., Jonathan Simon & Christina Spaulding, Tokens of Our Esteem: Aggravating Factors in the Era of Deregulated Death Penalties, in The Killing State: Capital Punishment in Law, Politics, and Culture 81, 81 (Austin Sarat ed., 1999) (describing the continuous expansion of death eligibility by the California legislature for over a decade beginning with the reinstatement of the death penalty in 1977).
. Scott Phillips & Trent Steidley, A Systematic Lottery: The Texas Death Penalty, 1976 to 2016, 51 Colum. Hum. Rts. L. Rev. 1043 (2020).
. Gregg v. Georgia, 428 U.S. 153, 189 (1976) (plurality opinion); see Death Sentences in the United States Since 1977, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/sentencing-data/death-sentences-in-the-united-states-from-1977-by-state-and-by-year [https://perma.cc/PM3T-4RXW]; Executions Overview, Death Penalty Info. Ctr., https://deathpenalty
. The city of Phoenix in Maricopa County is the fifth most populous city in the U.S., the largest state capital, and the only state capital with a population of more than one million residents. Its land area is greater than New York, Los Angeles, or Chicago. Bernard Goth, Take That, Philly: Phoenix Reclaims the Title of 5th-Largest U.S. City, Republic (May 25, 2017), https://azc.cc/2rSz8W1 [https://perma.cc/JGP2-2JCZ].
. Steven F. Shatz, Glenn L. Pierce & Michael L. Radelet, Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion, 51 Colum. Hum. Rts. L. Rev. 1072 (2020).
. Amsterdam, supra note 17.
. See Baldus et al., supra note 6; Grosso et al., supra note 9.
. Colorado SB20-100 repealed the death penalty for all previously death-eligible crimes committed on or after July 1, 2020.
. Andrew Kenney, Colorado Death Penalty Abolished, Polis Commutes Sentences of Death Row Inmates, Colorado Public Radio (Mar. 23, 2020), https://www.cpr.org/2020/03/23/polis-signs-death-penalty-repeal-commutes-sentences-of-death-row-inmates/ [https://perma.cc/B2GZ-TCS9].
. Furman v. Georgia, 408 U.S. 238, 295 (1972). See Baldus et al., Furman at 40, supra note 6.
. See, e.g., Meg Beardsley, Sam Kamin, Justin Marceau, & Scott Phillips, Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century, 92 Denv. L. Rev. 431 (2015). Prior to repeal, Colorado juries had not handed down any death sentences in over a decade, and the state’s last execution was in 1997. Colorado juries had not imposed any death sentences in a decade, and the state’s last execution was more than 20 years ago, in 1997. In 2013, then-Governor John Hickenlooper imposed a moratorium on executions, calling the state’s death penalty system flawed and inequitable. Colorado Becomes the 22nd State to Abolish the Death Penalty, Death Penalty Info. Ctr. (Mar. 24, 2020), https://deathpenaltyinfo.org/news/colorado-becomes-22nd-state-to-abolish-death-penalty [https://perma.cc/9MY5-GQFE].
. Sam Kamin & Justin Marceau, Hidalgo v. Arizona and Non-Narrowing Challenges, 51 Colum. Hum. Rts. L. Rev. 1101 (2020).
. Hidalgo v. Arizona, 138 S. Ct. 1054, 1054 (2018) (statement of Breyer, J., respecting the denial of certiorari).
. Gregg v Georgia, 428 U.S. 153, 189 (1976) (plurality opinion).
. State v. Hidalgo, 390 P.3d 783 (Ariz. 2017).
. Hidalgo, 138 S. Ct. at 1054.
. 476 U.S. 162 (1986).
. 481 U.S. 270 (1987).
. 476 U.S. at 173.
. McCleskey v. Kemp, 481 U.S. 279, 308 (1987).
. Amsterdam, Opening Remarks: Race and the Death Penalty Before and After McCleskey, supra note 17.
. Frederick Schauer & Barbara A. Spellman, Probabilistic Causation in the Law, 176 J. Institutional & Theoretical Economics 4, 13 (2020) (recognizing and arguing for a larger role of empirical evidence and counterfactual reasoning in resolving legal questions).
Anthony Amsterdam urged litigators and scholars to focus on individual prosecutors’ offices or counties and to identify “a set of local institutions, conventions, and practices which are manifestly the residues of classic Southern apartheid”; to “conduct analyses of the impact of race in the sentencing patterns . . . in those specific counties or venues”; and to “investigate, analyze, and prepare evidence of the legacy of apartheid embedded in the counties’ political, economic, and social life, particularly as it bears on law enforcement, prosecution, and courthouse customs.” The goal, Amsterdam says, is “to build a case not solely on statistical evidence of discrimination but to supplement it with evidence of anecdotes and local custom.”
Hamilton County, Ohio, lies technically just north of the South, but it is close. Its history reflects the emblematic segregation and overt racism associated with the South. This paper documents this history. It also remains in the top 2% of counties producing a majority of executions nationally. This history and ongoing use of the death penalty made it an ideal candidate for the kind of hyper-localized inquiry that Amsterdam suggested.
This article reports a study of all cases charged with aggravated murder in Hamilton County from January 1992 to August 2017, including controlled analyses on three outcome measures. The model for the prosecutor’s decision to charge a case capitally showed, after taking into account potentially relevant race-neutral factors, that a case with at least one white victim faced odds of being charged capitally that were 4.54 times the odds of a similarly situated case with no white victims. The model of the decision to impose a death sentence overall (combining the charging and sentencing decisions) found that a black defendant who killed at least one white victim faced odds of receiving a death sentence that were 3.79 times those of all other similarly situated defendants. Finally, in a model of the death sentencing decisions limited to death-specified cases (that is, the cases in which the state sought death), a black defendant with at least one white victim faced odds of receiving a death sentence that were 5.33 higher than all other cases.
These findings are both theoretically and statistically significant (p < .01). The local practice and history, bolstered by the statistical analysis, makes a strong case that race has influenced the administration of capital punishment in Hamilton County, Ohio.Download the PDF
Florida is critical to understanding the modern application of the death penalty in the United States. It has the largest active death row. It sentences more people to death than any other state. It has the worst exoneration record and executes at a rate second only to Texas. The legislative appetite for the continued use of the death penalty has resulted in the re-writing and amending of the law with a haste that has created a state of legal chaos. Florida was the first state to pass a new statute following the finding in Furman v. Georgia that the application of the death penalty was unconstitutional. Forty years on, history repeated itself in response to the finding in Hurst v. Florida that Florida’s system of sentencing people to death was unconstitutional. In less than a year, history repeated once again when the Florida Supreme Court interpreted previous United States Supreme Court decisions by finding the requirement for jury unanimity in the penalty phase of a capital trial in Hurst v. State.
This Article examines Florida’s application of the death penalty today under its new 2016–17 statute. It highlights the dearth of empirical research into Florida’s capital charging and provides an insight into research undertaken by the authors to date. Provisional findings indicate that Florida is arbitrarily and capriciously imposing death sentences, and concludes that Furman remains relevant today in Florida. A review of 1051 first-degree murder cases, in which 347 death cases were identified, indicated significant geographical variance of the application of the death penalty across the state. The variance appears to be a product of prosecutorial discretion, whether that discretion be random and inconsistent, or discriminatory selection of cases in which to seek the death penalty. Similar patterns were identified in a review of 164 death sentences between 2006 and 2016. In addition, 126 of the death cases are resentencings as a result of Hurst retroactivity. A review of the remaining 249 cases on death row revealed the extent of the arbitrary line drawn by the Florida Supreme Court in its retroactivity decisions in Mosley v. State and Asay v. State: 75% of death row was sentenced on the basis of a non-unanimous jury recommendation, yet only 40% will have their death sentences vacated and new penalty phase trials granted. Finally, the authors reflect on the difficulties in data collection and lessons learned before proposing the next steps for future research.Download the PDF
Since Furman v. Georgia, capital punishment jurisprudence has equipped decisionmakers with increased structure, guidance, and narrowing in death sentencing in an effort to eliminate the arbitrary imposition of death. Yet, these efforts have been largely unsuccessful given the wide discretion built into capital sentencing which allows for prejudice, bias, and racism to persist. Juries continue to sentence a disproportionately high number of defendants who have been convicted of murdering white victims to death. As a result, death sentencing schemes tend to undervalue Black murder victims’ lives. Any effort to eliminate the disparity must center on the undervaluation of Black lives.
This Article suggests that the next challenge to the death penalty should be on equal protection grounds based on the undervaluation of Black lives. It highlights that the Fourteenth Amendment was originally intended, in part, to extend the equal protection of the laws to Black victims of crime. The Article then explores the pitfalls of other race-based challenges to the death penalty. And demonstrates that a challenge based on disparities in capitally prosecuting white and Black victim cases could end capital punishment. The Article concludes with a road map for what a challenge based on the undervaluation of Black lives would look like.Download the PDF
Legal scholars have argued that relying solely upon the eligibility decision in capital case processing to reduce arbitrary outcomes contravenes the underlying goal articulated in Gregg v. Georgia. This Article adds to this line of scholarship by illustrating how eligibility and selection are not easily distinguished as discrete decisions when capital juries are tasked with doing both in the course of their duties. To the extent that most sentencing schemes rely upon capital juries to do both jobs—determine eligibility and make the selection decision—the consideration of aggravating evidence for the purpose of eligibility, and its use as something to be weighed in determining sentencing, is messier in practice. Specifically, the Article focuses on California’s death penalty scheme to illustrate how its overbroad eligibility criteria “bite twice,” first by failing to narrow the pool of defendants who may face the death penalty (the “eligibility decision”), and then by swamping the selection decision by exerting extraordinary influence on the jury’s sentencing decision, relative to mitigating evidence. The Article first details California’s death penalty process including its narrowing mechanism. Then the Article presents evidence from empirical research that offers insight into how death-eligible Californians understand and consider statutory aggravation (“special circumstances” in California’s statutory scheme), especially in relation to mitigating evidence. The Article concludes by outlining next steps for further research on how eligibility and selection determinations work together to produce the twin failures of California’s current death penalty machinery: a failure to narrow eligibility and a failure to ensure coherence in sentence outcomes.Download the PDF
Although the Supreme Court denied certiorari in Hidalgo v. Arizona (2018), Justice Breyer recognized that empirical research regarding the arbitrary administration of the death penalty could ultimately be used to strike down capital punishment. However, empirical research would only be efficacious if the data were more rigorous than those presented by Hidalgo. Focusing on Texas from 1976 to 2016, our research answers the call for robust data collected over a long period of time. Our findings indicate that the death penalty was rarely imposed among eligible cases—a trend that has accelerated in recent decades. However, the death penalty was considerably more likely to be imposed if the defendant killed a white female. Such patterns suggest that the modern Texas death penalty is a systematic lottery: death sentences are so rare as to be virtually random, yet death sentences are patterned by the race and gender of the victim. Defying strict logic, the Texas death penalty is indiscriminate yet discriminatory.Download the PDF
Two Supreme Court cases, Furman v. Georgia (1972) and McCleskey v. Kemp (1987) provide the framework for the study discussed in this essay, the largest single-county death penalty study. In Furman, although the issue of race discrimination in death sentencing was central to the litigation and was discussed by several of the justices, the “holding” addressed the issue only indirectly. The Court held that the discretionary death penalty schemes at issue were unconstitutional under the Eighth Amendment because death sentences were imposed so infrequently as to create too great a risk of arbitrariness. The Court’s subsequently developed remedy was to require state legislatures to “genuinely narrow” death penalty schemes and state courts to engage in “meaningful appellate review” of death sentences. In McCleskey, the Court rejected a death sentence challenge based on a statistical showing of racial discrimination in the state’s administration of the death penalty, but left open the possibility that a sufficiently large single-county study finding such racial discrimination could establish an equal protection violation. Our study of capital case charging in San Diego County, California, under California’s 1978 Death Penalty Law is just such a study. That law produced a death penalty scheme giving prosecutors the discretion to seek death in the vast majority of murder cases, resulting in a death sentence rate among death-eligible defendants even lower than that of Georgia at the time of Furman. Our study, covering a fourteen-and-ahalf-year period and using data from 1081 cases in which San Diego prosecutors charged an adult defendant with murder and obtained a homicide conviction, examines whether the race or ethnicity of defendants and/or victims affects how that broad prosecutorial discretion is used. We found that race/ethnicity is a significant factor in whether a defendant is charged capitally and whether the death penalty is sought, with the most substantial disparities occurring in cases with black defendants and white victims.Download the PDF
On March 23, 2020, Colorado repealed its death penalty statute for all crimes committed after July 1, 2020. Prior to this repeal, the two of us, along with other researchers, conducted a multi-year empirical investigation of the extent to which Colorado’s death penalty statute complied with the Eighth Amendment requirement of statutory narrowing. Litigants introduced our study in support of more than a dozen non-narrowing challenges to the Colorado statute, and we testified regarding what we believe was the failure of Colorado’s statute to do the narrowing work required by the Constitution. In this article, we build on this experience to discuss how a Hidalgo claim can best be framed in other state courts for eventual adjudication in the United States Supreme Court. Obviously, what is needed is a robust empirical study demonstrating that the discretion and arbitrariness that concerned the Furman Court remain present in a state’s modern capital punishment statute. But more than that, we discuss here how to structure lower court litigation of capital studies so as to foreground legal issues and to keep the focus on the relevant constitutional law rather than the credibility or motivations of the researchers.Download the PDF
In the denial of certiorari review in Hidalgo v. Arizona, 138 S. Ct. 1054 (2018), a four-Justice statement commented on the petition and the underlying litigation challenging, on the basis of empirical evidence, whether the Arizona capital sentencing statute sufficiently narrows the pool of defendants eligible to receive the death penalty. The Hidalgo Statement observes that the Arizona Supreme Court erred in its application of the Federal law and the petition raised an “important Eighth Amendment question” based on research into the operation of the sentencing statute. In declining the case, the four Justices encouraged similar future challenges and urged the development of trial court records examining any such statistical proof of alleged constitutional deficiencies.
Since the landmark decision McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court has essentially sidelined empirically developed challenges to criminal statutes. Hidalgo offers noteworthy guidance to the potential restoration, after three decades, of a former avenue for constitutional redress premised upon statistical and historical analyses.
This article addresses the present implications of the Burger and Rehnquist Courts’ foreclosure of this means to constitutional scrutiny and suggests steps to restoring the evidentiary salience of empirical proof reflecting the actual operation of the death penalty.Download the PDF
Adapted from keynote remarks delivered at the Columbia Society of International Law Faculty Honors Award Reception at Columbia Law School, on April 20, 2016.Download the PDF