Private Prison Usage in Mexico

The use of private prisons in the U.S. is perhaps one of the most well-known present day controversies in American politics. Although the first for-profit prison was established in 1852, the most recent resurgence of private prisons occurred during the 1980s; as prison populations increased rapidly with the advent of the “war on drugs”, prison privatization offered an efficient solution to overcrowding and rising costs.[1] In 2015, per Bureau of Justice statistics, for-profit companies were responsible for approximately 7% of state prisoners and 18% of federal prisoners.[2] The use of private prisons in the U.S. even extends beyond citizens – in 2016, per U.S. Immigration and Customs Enforcement, almost 75% of federal immigration detainees were held in private prisons.[3]

Other countries have also begun experimenting with private prisons, including Mexico. On 2010, Mexican President Felipe Calderón introduced a plan to build “ten new high security prisons…by the private sector and some companies”, specifically ICA, Tradeco, GIA, Homex, Prodemex, and Arendal.[4] The first of these prisons was inaugurated on February 10, 2012, in Hermosillo, Sonora and involve an investment of 4.2 billion pesos ($325 million) to allow for state-of-the-art equipment including custom entrances with automated locks and a hospital with laboratories.[5] The use of private prisons has continued with President Enrique Peña Nieto, who has committed to building seven prisons through the Contrato de Prestación de Servicios (CPS) in which private companies build prisons and take care of subsequent maintenance, food, and cleaning.[6] As of 2016, the monthly Cuaderno Nacional de Información Estadística Penitenciaria referred to six Centros Federales de Readaptación Social, which altogether hold 15,128 prisoners with occupancy rates of about 85%.[7]

One of the benefits of privately held prisons is a lower expense for the state, an argument that both presidents Calderón and Peña Nieto have used to advocate privately run prisons. However, this has not been the case in Mexico due to private contracts that force the government to pay for full capacity. Per the Comisión Nacional de Derechos Humanos, the Mexican government pays about 1,500 pesos per prisoner in a private prison, instead of the 390 pesos of an inmate in a state prison.[8] Similar comparisons also show vastly higher rates paid to private companies for food and cleaning services. Because the government pays for full prisons regardless of actual capacity, relocations have moved hundreds of inmates from state prisons to private prisons. Out of the 24,430 people in federal prisons, the six CPS centers in Sonora, Guanajuato, Oaxaca, Durango, Chiapas, and Morelos account for 53% of inmates.

The Mexican government has also turned to an end to corruption and overcapacity as part of the reason to build private prisons. However, private prisons have also failed to solve these problems. In 2012, Mexican prisons were operating at an average of 25% overcapacity; this has resulted in disastrous events including a riot at a prison with 150% overcapacity.[9] While it is true that building more prisons will help reduce overcapacity, companies do not have any incentive to decrease the inmate population – in fact, companies may be interested in driving up profits by increasing the number of prisoners. The Mexican government also has an interest in raising the number of inmates, because as discussed earlier, the state pays for a private prison’s full capacity. Additionally, although built and maintained by private companies, privatized prisons in Mexico are still run by Mexican state actors, thus negating the argument of reduced corruption. Many inmates in private prisons are abused by guards. Individuals have recounted stories of visiting individuals in prisons who are chained and forced to spend twenty-three hours per day in their cell, with only one hour to spend outside.[10]

For anyone who has followed the usage of private prisons in the U.S., these results should not come as a surprise; for decades, numerous studies have noted the deleterious effect of privately run prisons on both prisoners. Additionally, on August 18, 2016, the U.S. Department of Justice (DOJ) released a report that compared fourteen private and fourteen state run prison facilities, noting that “contract prisons incurred more safety and security incidents per capita than comparable BOP [U.S. Bureau of Prison] institutions”.[11] Additionally, the report stated that private prisons had more incidents per capita including “higher rates of assaults”, that private prisons were more frequently cited for “one or more safety and security deficiencies, including administrative infractions such as improper storage of use-of-force video footage, as well as more serious or systemic deficiencies”, and that some private prisons were improperly housing new inmates.[12] In its conclusion, the DOJ indicated that the BOP should either decline to renew contracts with private prison contractors or reduce the scope of private corporations in handling prisoners.[13]

The DOJ’s report should act as a warning to Mexico, who should also consider stopping the use of privately run prisons. This is particularly true considering the fact that four of Mexico’s private prisons are only partially built or are still not open despite the billions of pesos poured into them.[14] Rather, the Mexican government should focus on working towards a more effective judicial system in order to reduce the number of individuals in prison. By addressing issues such as the fact that more than one third of all prisoners in Mexican prisons have yet to be sentenced, some of whom spend years waiting trial, Mexico can remedy its judicial system and accordingly, eradicate the need for privately run prisons.[15]

~~~

[1] “Private Jails in the United States.” FindLaw.

[2] Ibid.

[3] “Private Prisons.” American Civil Liberties Union.

[4] Lajous, Andrés. “La privatización del sistema carcelario en México.” Nexos. April 9, 2012.

[5] “Calderón inaugurates high-tech federal prison for 2,500 inmates.” Hidrocalidodigital.com. February 10, 2012.

[6] Hernánadez, Juan Luis García. “Las cárceles privada nos cuestan 4.5 veces más, pero el Gobierno planeo otras siete.” Sinembargo. September 11, 2016.

[7] Ibid.

[8] Ibid.

[9] O’Neill McCleskey, Claire. “Mexico to Build 2 Private Prisons by Year-End.” InSight Crime. August 8, 2012.

[10] Weinstein, David. “Privatization of Prisons in Mexico and the Rights of Person Deprived of Liberty.” Human Rights Brief. April 10, 2016.

[11] Office of the Inspector General. “Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons.” U.S. Department of Justice. August 2016.

[12] Ibid.

[13] Ibid.

[14] Murray, Christine and Joanna Zuckerman Bernstein. “After Drug War Contracting Boom, Mexican Prisons Stand Idle.” U.S. News. February 17, 2017.

[15] Ibid.

The Legal Anomaly that Constitutes Corporate Personhood

Santa Clara County v. Southern Pacific Railroad Company is well-known as the Supreme Court case that established corporate personhood, the legal notion that a corporation, separate from its associated human beings, has some of the legal rights enjoyed by natural persons including Constitutional rights. To be sure, corporations were extended certain rights by the Supreme Court prior to Santa Clara. In Dartmouth College v. Woodward, the Supreme Court determined that corporations were protected by the Contracts Clause of the Constitution; over time, other court decisions continued to confirm that corporations had limited constitutional protection.[1]

It was not until 1886, when Santa Clara was decided, that the notion of corporate personhood was legally confirmed, albeit in the most unusual way. The original case revolved around the state of California taxing fences owned by the Southern Pacific Railroad Company – taxes that Southern Pacific claimed the state had not properly subtracted its outstanding mortgages from.[2] Consequently, Southern Pacific refused to pay taxes on its fences and Santa Clara County brought action against the company, arguing that the fence tax was appropriate due to the fact that the county could also tax the land which situated the fences.[3] Ultimately, the Supreme Court, with the unanimous opinion written by Justice John Marshall Harlan, ruled that the state wrongfully excluded a deduction for the outstanding mortgages and that the California constitution required that the state and its counties separately assess the land and fences before increasing taxes.[4]

It is important to acknowledge that nowhere in the opinion itself was corporate personhood discussed. However, one of Southern Pacific’s defenses involved the Fourteenth Amendment; specifically, it was argued that “the provisions of the constitution and laws of California…are in violation of the Fourteenth Amendment of the Constitution, in so far as they require the assessment of their property at its full money value, without making deduction, as in the case of railroads [that are only] operated in one county, and of other corporations, and of natural persons, for the value of the mortgages…”.[5] Through this statement, Southern Pacific was essentially arguing that California, by not deducting the company’s mortgage before taxing the company as was done when taxing natural persons, was treating the company unfairly.

Although the Supreme Court did not address this issue in its official opinion, a headnote by Supreme Court reporter J.C. Bancroft Davis noted that “Before argument, Mr. Chief Justice Waite said: ‘The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does.’”[6] Although written on and in the margins of the Santa Clara ruling, headnotes are not law and more importantly are not precedential – yet Davis’ headnote became the basis for the solidification and expansion of corporate personhood that is still in use today. Many have written on these course of events, but how exactly the headnote in Santa Clara became used as precedent has yet to be explored. Investigating when and how Santa Clara was used immediately after the case was decided will not only trace the use of corporate personhood in the U.S. legal system since Santa Clara, but will also reveal more about the origins of corporate personhood.

Santa Clara was first cited by Justice Harlan himself while dissenting in Fire Association of Philadelphia v. People of the State of New York, just six months after the original decision. In his dissent, Harlan quoted Davis’ headnote, just as above, and stated that “it is equally clear that a corporation of one state, doing business in another state by her consent, is to be deemed, at least in respect to that business, a ‘person’ within the jurisdiction of the latter state, in the meaning of the fourteenth amendment”.[7] Harlan clearly supported corporate personhood, enough to use a non-precedential headnote in Fire Association as a verified legal standard. However, this usage, because of its use in a dissent, does not constitute precedent.

It wasn’t until 1887, in Singer Manufacturing Company v. Wright, that Santa Clara was used as precedent in an opinion by the Northern District Court of Georgia. The case, arising from a suit by Singer Manufacturing Company against the state of Georgia to enjoin the collection of taxes.[8] In his opinion, Justice Newman stated that “it was for some time doubted by the court whether the word ‘person,’ as used in the fourteenth amendment, included corporations. Indeed, it has been settled by some courts that it does not. But it is now considered settled, I presume, by the language used by Chief Justice Waite, speaking for the supreme court, in the case of Santa Clara Co. v. Railroad, 118 U.S. 396, 6 Sup.Ct.Rep. 1132, that corporations are so included and entitled, as fully as natural persons, to its protection”.[9] This interpretation of Santa Clara, however, is both incorrect and inappropriate. Although Justice Newman argues that the matter of corporate personhood had been settled, the lack of legitimate precedent says otherwise. Despite this, through Singer Manufacturing, corporate personhood became legal precedent and Santa Clara quickly became used in a myriad of cases to reinforce the notion.

Over the next year, Santa Clara was used as precedent in both Stockton, Attorney General of New Jersey v. Baltimore & N.Y.R. Co. and others and Charlotte, C. & A.R. Co. v. Gibbes. In Stockton, it was stated that “in the recent case of Santa Clara Co. v. Railroad, 118 U.S. 396, 6 Sup.Ct.Rep. 1132, the doctrine that corporations are not citizens or persons, within the protective language of the constitution, was unanimously disapproved, and the court expressly held that they are entitled, as well as individuals, to the equal protection of the laws, under the fourteenth amendment of the constitution”.[10] In Charlotte, when debating corporate personhood, it was declared that “in Santa Clara Co. v. Railroad, 118 U.S. 396, 6 Sup.Ct.Rep. 1132, the court seemed to be so well satisfied upon the point that they declined to hear argument on the question whether the provision in the fourteenth amendment to the constitution of the United States, which forbids a state from denying to any person within its jurisdiction the equal protection of the laws, applies to corporations; the chief justice saying: ‘We are all of opinion that it does.’”[11] As with Singer Manufacturing, Santa Clara was used incorrectly as precedent supporting corporate personhood – an event that never actually occurred in the eyes of the law.

Santa Clara has been used to justify corporate personhood as recent as 2013, in Hallowich v. Range Resources Corporation in which the court argued that “had the framers intended the protections of article I, § 1 to extend to business entities, they certainly could have written, ‘All persons are created equally free and independent….’ They did not. Indeed, it is federal amendment XIV’s use of the word “person” that makes its protections applicable to business entities, because its drafters were presumed to have known that “person” is a legal term of art, encompassing business entities under the common law. This was so clear that chief justice Waite ruled, prior to oral argument, that: The court does not wish to hear argument on the question of whether the provision in the Fourteenth Amendment to the constitution, which forbids a state to deny to any person within its jurisdiction the equal protections of the laws, applies to these corporations. We are all of the opinion that it does.”[12] The use of the phrase “chief justice Waite ruled” is particularly interesting, as the use of the verb “ruled” assumes that Chief Justice Waite’s statement is legal precedent when in fact, is not.

Tracing the history of Santa Clara beyond J.C. Davis’ headnote and into the headnote’s usage both immediately and long after it was written provides more insight into how corporate personhood became established as legal precedent. The inscription of court commentary is by no means unusual, however, in the case of Santa Clara, Justice Waite’s fateful verbal acknowledgement of corporate personhood became used as precedent for over a century. Even more interestingly, this headnote was almost immediately used as precedent in opinions by judges who should have known the non-legal and un-precedential nature of Justice Waite’s statement. In this sense, corporate personhood was the direct result of a legal anomaly, and has become the bulwark for the American social, economic, and political systems through later cases such as First National Bank of Boston v. Bellotti, Citizens United v. Federal Election Commission, and Sebelius v. Hobby Lobby.

~~~

[1] Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819)

[2] Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886)

[3] Ibid.

[4] Ibid.

[5] Hartmann, Thom. Unequal protection the rise of corporate dominance and the theft of human rights. San Francisco: Berrett-Koehler, 2009.

[6] Ibid.

[7] Fire Association of Philadelphia v. People of the State of New York, 7 U.S. 108 (1886).

[8] Singer Manufacturing Company v. Wright, 33 F. 121 (1887).

[9] Ibid.

[10] Stockton, Attorney General of New Jersey v. Baltimore & N.Y.R. Co. and others, 32 F. 9, 13 (1887).

[11] Charlotte, C. & A.R. Co. v. Gibbes, 4 S.E. 49, 55 (1887).

[12] Hallowich v. Range Resources Corporation, 2013 WL 10254260 (2013).

A War on Two Fronts: The Indigenous Fight against Paramilitarism and Cartels

Mexico has one of the largest indigenous populations in the Americans, with one in ten Mexicans speaking one of 56 federally recognized languages.[1] Geographically, most of Mexico’s indigenous population is located in about one-third of Mexico’s states and more than half live in four states: Oaxaca, Veracruz, Chiapas, and Puebla.[2] Out of the estimated 15 million indigenous Mexicans, around 72% are considered impoverished and despite the 2003 passage of the Ley Federal Para Prevenir y Eliminar La Discriminación, indigenous Mexicans continue to experience a large amount of marginalization.[3] Much of the direct and indirect discrimination and violence faced by indigenous Mexicans comes not only from the lack of legislative harmony, but also from government-supported paramilitary groups and cartels. In this sense, indigenous Mexicans face a complex and difficult situation in which they are terrorized by cartels and gangs yet cannot turn to the government that is also threatening them.

Paramilitary groups have a long history of operation in Mexico, with the government delegating funds, equipment, and training for the enactment of missions and tasks that regular armed forces are unable to openly implement. Through this technique, the Mexican government has supported and implemented forms of state violence that are not legally recognized as such. Because the state-sanctioned actions of paramilitary groups are disguised, these indirect state actors often go unpunished.[4] One of the most notable paramilitary groups is that of the Brigada Blanca, which was established in June 1976 to investigate La Liga Comunista 23 de Septiembre.[5] The Brigada Blanca consisted of 240 police, Dirección Federal de Seguridad personnel, and members of the Policía Judicial Federal who regardless of military status, were given a monthly compensation of three thousand pesos by the Mexican government. In addition, the Brigada Blanca maintained office space and trained at a military field, and received 55 vehicles, 253 guns, and several helicopters as needed.[6] With such strong ties between the Brigada Blanca and the Mexican government, it is evident that the lines between legitimate policing and paramilitarism can often be extremely tenuous.

Many of the targets of paramilitary violence have been Zapatistas, indigenous Mexicans who through the Ejército Zapatista de Liberación Nacional (EZLN) fight for “work, land, housing, food, health, education, independent, liberty, democracy, justice, and peace”.[7] Between 1995 and 2000, the Paz y Justicia paramilitary group has been responsible for the death or forcible disappearance of 122 indigenous people, as well as for the displacement of 4,000 Ch’ol and Tzeltal residents in Chiapas.[8] Paz y Justicia reappeared in 2015, and indigenous activists accused Edgar Gomez, the president of the Tila municipality, as well as other Tila municipal officers, of supporting the paramilitary group as a means to control indigenous residents.[9] Such claims are extremely plausible not only because of historical precedent, but also because of the valuable natural resources the Mexican government has been stealing from indigenous Mexicans for years.[10]

In addition to paramilitary groups, indigenous Mexicans are also threatened by drug cartels, such as Los Zetas in Michoacan. The presence of cartels has led to an increase in indigenous youth consuming drugs, and individuals from indigenous communities being used and exploited as drug smugglers.[11] Additionally, cartels have taken over farmland traditionally used by indigenous peoples to grow poppies, and hitmen are a common occurrence. This past May, Miguel Vásquez and his brother Agustín, two prominent activists, were killed by gunmen believed to be part of the Jalisco New Generation cartel.[12] Rather than risking death, many indigenous Mexicans have moved and become displaced by the spread of organized crime; entire towns have even moved to escape the violence.[13] All too often, though, cartels and the local police collude. In the case of the Vásquez brothers, municipal police had arrested the suspected murders that day yet released them right before the shootings took place.[14] Additionally, the current fight against drug cartels has given paramilitary groups a seemingly legitimate excuse to continue terrorizing and violating the human rights of indigenous Mexicans.[15]

The dual pressures of paramilitary groups and drug cartels have put indigenous Mexicans in a unique situation, in which they are being terrorized by external groups but are also unable to receive assistance from a government that is funding some of the very groups that are enacting violence. Although resources such as the Indigenous Council of Government (CIG) exist, they are often only a pretense that cover the continuation of state violence against indigenous communities. Recently, after the appointment of a new CIG spokesperson, indigenous communities across the country experienced increased repression.[16] Rather than segregating and marginalizing indigenous peoples, the Mexican government should work with communities to recognize their sovereignty, address their needs, and protect their fundamental rights as laid out in the UN Declaration on the Rights of Indigenous Peoples, of which Mexico is a signatory. Integral to this process would be ending the use of paramilitary groups to enact state violence and rectifying the vulnerability of indigenous populations to drug cartels. Until such actions occur, indigenous peoples will continue to be viewed and treated as second-class citizens by their own government.

~~~

[1] Fox, Jonathan. “Mexico’s Indigenous Population.” Cultural Survival. March 1999.

[2] Ibid.

[3] “72% of the Indigenous Population in Mexico live in Extreme Poverty Conditions.” The Yucatan Times. August 16, 2014.

[4] López y Rivas, Gilberto. “Paramilitarismo y contrainsurgencia en México, una historia necesaria.” TeleSUR. August 25, 2015.

[5] Ibid.

[6] Castillo García, Gustavo. “El gobierno creó en 1976 brigada especial para “aplastar” a guerrilleros en el valle de México.” La Jornada.

[7] International Service for Peace [SIPAZ] ( January 2002) Chiapas Peace Process, War Process.

[8] “Mexican Paramilitary Group that Killed 120 Indigenous Reappears.” TeleSUR. December 28, 2015.

[9] Ibid.

[10] Alvarado Álvarez, Ignacio. “Bishop: Natural resources are being snatched from indigenous Mexicans.” Aljazeera America, April 4, 2015.

Tresierra, Julio. “Rights of Indigenous Groups Over Natural Resources in Tropical Forests.” Inter-American Development Bank, May 1999.

[11] Sokan, Kenny. “Mexico’s indigenous Raramuri have been suffering at the hands of narcos for decades.” Public Radio International. June 30, 2016.

[12] Tucker, Duncan. “An indigenous Mexican people are battling cartels and peyote tourism.” VICE News. June 16, 2017.

[13] Balderas, Oscar. “Some Mexicans Have Been Living in Limbo for Years After Fleeing Cartel Violence.” VICE News. March 15, 2016.

[14] Tucker, Duncan. “An indigenous Mexican people are battling cartels and peyote tourism.” VICE News. June 16, 2017.

[15] Rushing, John. “Mexico Drug War Violence Used As Pretext For Indigenous Community Repression.” The Huffington Post. June 23, 2011.

[16] Gutiérrez, Oscar. “Congreso Nacional Indígena denuncia represiones.” El Universal. November 6, 2017.

Cuban Migrants and the Legal/Illegal Immigrant Divide

The traditional notion of immigration to the U.S. is that of European immigration and assimilation; essentially, U.S. history views European migrants as the prototypical migrant.[1] This is in sharp contrast to migrants from other countries, who due to the criminalization and racialization of immigration are perceived to be illegal. Historically, non-European migrants were excluded from the narrative of “valid” immigrants through the passage of the explicitly racist immigration laws, notably the 1882 Chinese Exclusion Act and the quota system of the Immigration Act of 1921. Although quotas were official abolished with the passage of the Immigration and Naturalization Act of 1965, immigration policy continues to be implicitly biased in a way that frames certain migrants, particularly Latin American migrants, as illegal and undeserving migrants; this opposes and reinforces the traditional view of “real” and “deserving” immigrants as European. One notable exception to this, though, have been Cuban migrants. Due to the highly-politicized remnants of the Cold War, Cubans have been treated as anomalies to the legal/illegal immigrant divide for decades, both by the U.S. and by other Central American countries.

Modern immigration policy between the United States and Cuba originated with the Cuban Adjustment Act of 1966 (CAA), which enabled Cuban immigrants to declare political asylum without having to prove refugee status.[2] The CAA permitted any Cuban who touched ground in the United States to naturalize immediately, allowing individuals to circumvent the complicated quota and visa system applicable to migrants from all other countries.[3] In the context of the Cold War, there were numerous explicit and implicit reasons for the U.S. government to make such a bold political move. Not only would opening U.S. borders provide safe haven for victims of persecution, but it would also reduce administrative burdens that had grown with the rapid increase of migrants fleeing Cuba. Additionally, in the throes of the fight against communism, the U.S. was sending a message to communists across the world that thousands of immigrants were seeking refuge in a democratic government.[4] In this way, the CAA acted as a legislative act of anti-communist propaganda and created a special status for Cubans. While Cubans were given a special status that ushered them through an open door, all other immigrants, particularly those from U.S.-supported governments, had to prove a well-founded, individual fear of political persecution.[5]

The CAA remained the prevalent policy that regulated Cuban immigration until the 1994 Balsero Crisis, when dozens of individuals stormed embassies and diplomatic residencies in Havana, demanding asylum and protesting the impoverished living conditions.[6] The Cuban government identified U.S. foreign policy as playing an integral role in inciting the riot, particularly the economic embargo between both countries, the CAA’s open door policy, the restricted number of legal applications for asylum, and anti-Cuban propaganda.[7] In response, Cuban leader Fidel Castro gave orders not to discourage emigration, leading the U.S. to tighten its economic embargo and causing tens of thousands of Cubans to flee for the United States via the sea. However, rather than being received into the U.S. as expected, Cuban migrants were transported and detained at Guantanamo Bay.[8] On May 2, 1995, the Clinton Administration announced a resolution of the Balsero Crisis that would solve the immediate migration crisis created by the 28,000 Cubans detained at Guantanamo Bay, implement a control mechanism for preventing future waves of Cuban migrants seeking asylum, and continue opposition against Fidel Castro by upholding economic and political initiatives.[9] Additionally, Castro agreed to discourage future mass emigration while the U.S. agreed to eliminate the CAA’s open door policy. The CAA was replaced by a new policy, dubbed the “Wet Foot, Dry Foot Policy”, that allowed for the interception and repatriation of Cuban immigrants at sea. However, those migrants who reached U.S. soil were still allowed to remain.[10]

Although a considerable restriction on Cuban migration considering the prior CAA policy, the Wet Foot, Dry Foot Policy was much more generous than the treatment of other migrants from Latin America. A notable comparison can be made using the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) that was passed in 1996, only two years after the Wet Foot, Dry Foot Policy. In contrast to the recognition of undocumented Cuban migrants as needing asylum from dire economic and political situations (albeit recognized for politically motivated reasons), the IIRIRA framed undocumented immigration from other countries as a strategy for migrants to live off public programs for free.[11] Unlike Cuban migrants, who received the benefits such as Medicaid and food stamps, migrants under the IIRIRA were restricted from numerous social programs and even academic benefits with states being prevented from offering in-state tuition for undocumented students attending public institutions.[12] When viewing U.S. policy towards undocumented migrants as a whole, it is evident that Cuban migrants not only received preferential treatment, but that they also represented a departure from how other Latin American migrants are treated. Rather, the special handling of Cuban migrants acts as an anomaly from the typical legal/illegal immigrant divide. This has raised tensions among Central American migrants, many of whom resent the assistance and friendly reception given to Cubans but denied to others fleeing similar situations.[13]

Latin American countries have also reinforced this divide through their treatment of Cuban migrants. In January 2013, when Cuba relaxed travel restrictions for its citizens, and in December 2014, when Obama announced rapprochement with Cuba, thousands of Cuban migrants began traveling to the U.S. compelled by the fear that thawing relations between both countries would end favorable U.S. immigration policies. In 2015, the number of undocumented Cubans arriving in the U.S. nearly doubled from 24,278 in 2014 to 43,159 in 2015.[14] Rather than traveling by sea to the East Coast, the route traditionally taken, migrants began traveling through Latin America; many migrants began their journey in Ecuador, due to the country’s no-visa policy that allowed individuals to travel in and out of the country freely.[15] Although Latin American countries began closing their borders as the influx of migrants increased, Cubans still received an extraordinary amount of aid that was denied to others, with Mexico and Central American countries agreeing to help thousands of Cuban migrants stranded on their way to the U.S. When Costa Rica closed its border, Panama airlifted 3,800 migrants to Juárez, Mexico; when Panama closed its borders to Cubans without visas, it ended up waiving immigration restrictions for over 800 migrants, including many Cubans; when Nicaragua closed its border with Costa Rica, Costa Rica airlifted the majority of Cuban migrants to El Salvador and Mexico.[16] Additionally, El Salvador bused Cubans to Mexico; and Mexico granted Cubans a 20-day visa to facilitate their safe passage to the U.S.[17]

This is in sharp contrast to the treatment of Central American migrants, who travel through Guatemala and Mexico to reach the United States. Without the help of governments, migrants travel hundreds of miles, battling state corruption and gang violence and forcing their way through untraveled and unsafe jungles. This comparison by no means detracts from the situations of Cuban migrants, many of whom face similar situations and experience extreme hardship on their journey to a better life.[18] However, contrasting the government assistance provided to Cuban migrants and the lack of support provided to other migrants effectively highlights the ways in which Cubans are treated as anomalies to the traditional narrative of who is considered a “true” and “deserving” immigrant, and who are afforded certain benefits as a result of that status.

However, this treatment was reversed in January 2017, when President Obama terminated the Wet Foot, Dry Foot Policy.[19] In an effort to normalize relations between the U.S. and Cuba, Obama revoked the status of Cuban migrants as political exceptions to immigration policy, stating that “effective immediately, Cuban nationals who attempt to enter the United States illegally and do not qualify for humanitarian relief will be subject to removal, consistent with U.S. law and enforcement priorities”.[20] Upon this policy dissolution, Cuban migrants have lost their status as anomalies to the legal/illegal immigrant divide, and are now treated just like all other migrants – like all other Latin American immigrants, that is. As a result of the revocation of the Wet Foot, Dry Foot policy not only has Cuban migrant been criminalized, but the legal/illegal immigrant divide has been reinforced. Almost immediately after Obama’s announcement, the U.S. and Central American countries began deporting Cuban migrants, and even denying Cuban migrants seeking asylum.[21] That same month, the Mexican government announced its intentions to instruct the INM to return Cubans stranded along the U.S.-Mexico to Cuba; 90 Cuban migrants along Mexico’s southern border were also repatriated. [22], [23] Once receiving special treatment, Cuban migrants are now being treated like the majority of migrants traveling through Mexico, subject to the militarization of southern Mexico and the uncertainty and possible violence when encountering INM agents and other state actors.

Through the reinforcement of the legal/illegal immigrant divide, the U.S. also exacerbates the current humanitarian crisis in Mexico and Central America that has resulted in the violation of human rights for tens of thousands of migrants. When combined with the lack of international protection for undocumented migrants, this also indicates that the U.S. lacks the political will to extend protection to Latin American migrants. By using Cuban migrants as an exception to and then a fortification of the legal/illegal immigrant divide, the U.S. only feeds into nationalistic “othering” of Latin American migrants and upholds the false notion that excluding Latin American migrants is to protect American citizens.

~~~

[1] Goodman, Adam. “Nation of Migrants, Historians of Migration.” Journal of American Ethnic History 34, no. 4 (2015): 7-18.

[2] Pérez, Alberto J. “Wet Foot, Dry Foot, No Foot: The Recurring Controversy Between Cubans, Haitians, and the United States Immigration Policy.” Nova Law Review 28 (2004): 437-65.

[3] Ibid, 442.

[4] Pérez, 444.

[5] Nackerud, Larry, Alyson Springer, Christopher Larrison, and Alicia Issac. “The End of the Cuban Contradiction in U.S. Refugee Policy.” International Migration Review 33, no. 1 (1999): 176-92.

[6] Ibid, 177.

[7] Ibid, 178.

[8] Ibid, 178.

[9] Ibid, 180.

[10] Pérez, 450.

[11] Newton, Lina. Illegal, Alien, or Immigrant: The Politics of Immigration Reform. New York: New York University Press, 2008.

[12] Ibid.

[13] Preston, Julia. “Tension Simmers as Cubans Breeze Across U.S. Border.” New York Times. February 12, 2016.

[14] Miroff, Nick. “The other migrant crisis: Cubans are streaming north in large numbers.” The Washington Post. December 5, 2015.

[15] Fleischner, Nicki, and Elizabeth Gonzalez. “Infographic: Mapping Cubans’ Migration through the Americas.” AS/COA. August 17, 2016.

[16] Ibid.

[17] Ibid.

[18] De Dios García Davish, Juan. “Cubanos demandarán a la SSyPC y al INM por daños y golpes – Quadratín.” Quadratin Chiapas. March 13, 2017.

[19] Robles, Julie. “Obama Ends Exemption For Cubans Who Arrive Without Visas”. New York Times. January 12, 2016.

[20] Ibid.

[21] Chardy, Alfonso. “Border guards accused of illegally turning away foreigners seeking asylum.” Miama Herald. May 21, 2017.

[22] “Mexico Deportara a Cubanos.” La Red de Altamira. January 17, 2017.

[23] Jervis, Rick. “Mexico deports Cubans; first time since wet foot/dry foot repealed.” USA Today. January 20, 2017.

Justice Harlan and the True Origins of the Colorblind Constitution

The notion of a colorblind Constitution originated with Supreme Court Justice Harlan, a historically famous dissenter who is well-known for writing in defense of racial equality and equal rights for African-Americans. As the lone dissenter in Plessy v. Ferguson, Justice Harlan objected to the finding that enforced segregation was constitutional on the basis that:

“In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights… Our Constitution is color-blind and neither knows nor tolerates classes among citizens…The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”[1]

In a sense, Harlan’s dissent seems heroic; in the face of a Supreme Court that upheld the doctrine of separate but equal, he proclaimed racial equality in the eyes of the law. By denying that the law can take race into account when determining the civil rights of citizens, Harlan promoted a colorblind legal system and argued that the nation should disestablish racial hierarchy in formal political and legal discourse. In fact, Harlan’s colorblind interpretation of the Constitution was so powerful that it was used post-World War II by the NAACP and the Civil Rights Movement to end segregation through cases like Brown v. Board of Education. By claiming that racial discrimination policies did take color into account despite a colorblind Constitution and legal system, civil rights activists were successful in dismantling segregated public areas, most notably schools.

Yet when reflecting on Harlan’s life, particularly his youth and early political beliefs, it seems peculiar that he would write a dissent opposing segregation. During his lifetime, Justice Harlan, a defender and practitioner of slavery, transformed not only in his stance on slavery, but also in his regard for the civil rights granted to newly freed slaves. Harlan’s mixed views on race combined with his devotion to nationalism and unionism were developed from a very young age and became important indicators of the political and legal positions he held throughout his lifetime.

John Marshall Harlan, named after the former Chief Justice of the United States, was born on June 1, 1833 to James Harlan and Eliza Davenport Harlan, a Kentucky slave-owning family.[2] James, a lawyer and member of the Kentucky House of Representatives, was a very important figure in Harlan’s life and in many ways shaped his opinions on slavery; while by no means an abolitionist, James did not believe in the extension of the slave system or in the harsh treatment of slaves. Rather, he treated the family’s slaves well and believed that slavery was an evil that would eventually die out.[3] Harlan’s future wife, Malvina, also morally opposed slavery and no doubt exercised some influence over her husband, as it was noted that he never made a major decision without consulting her first. However, Harlan might also have been influenced by the fact that he had a half-brother or half-uncle, Robert, who was the son of a slave. Although Robert was officially a slave, he was brought up in the Harlan household as a member of the family and remained in touch with them for the rest of his life. Robert eventually bought his own freedom, later becoming a prominent member of the Republican State Committee and the Ohio State Legislature.[4] It is clear that these experiences and influences from Harlan’s youth shaped his mixed positions on race, as throughout his life he held contradictory positions on slavery, newly freed slaves, and the civil rights granted to them.

In addition to shaping Harlan’s views on race, James provided Harlan with numerous Whig beliefs, particularly the belief in a nationalist government “that would be supreme and paramount in all matters entrusted to the General Government, its powers, however, to be so exerted as not to infringe upon the rights which remain with the people of the several States”.[5] This is a principle that corresponds to how Harlan felt about slavery, as he saw the topic to be one that each state should handle independently. Harlan’s Whig belief in nationalism and conflicting views on slavery were furthered by his Unionist Whig law school professors, who had a deep distaste for all forms of involuntary servitude. These ideals would stay with Harlan for the rest of his life and arguably were the cornerstone for many of his political moves and judicial opinions.

Upon graduation from law school in 1852, Harlan began working for his father’s law practice and began his political career as a Know-Nothing, as the Whig Party had already begun to disappear.[6] However, Harlan continued to espouse the Whig principles of nationalism and anti-secession during his time as a Know-Nothing, later as a Constitutional Unionist who fought against secession, and even as the attorney general for Kentucky and as a Union soldier. During the Civil War, Harlan fought for the Union, in a continuation of his anti-secession views and in spite of his pro-slavery opinions. Harlan also attacked Lincoln for the Emancipation Proclamation and for suspending privileges of the writ of habeas corpus, as he believed both were unconstitutional and that slavery was a question beyond the powers of the federal government.[7] This clearly exemplifies that Harlan continued to hold the Whig beliefs that his father had instilled in him throughout his life.

Harlan’s firmness in the preservation of the Union maintains his motive to support the Democratic Party through George McClellan in the 1864 presidential campaign.[8] Although Harlan did not agree with most of the principles put forth by the Democratic Party at the time, McClellan held similar views of unionism that encouraged Harlan to work on McClellan’s campaign. During this time, Harlan also vehemently disagreed with the passage of the 13th Amendment, as he expressed fear that immediate abolition would stimulate racial unrest and predicted future attempts to give African-Americans the right to vote.[9] Consequently, it was surprising when Harlan’s next political move was to join the Republican Party. Harlan’s rapid turn to the Republican Party surprised many, and has led to two main theories which offer hypotheses on this switch. One theory is that Harlan joined the party as a matter of political expediency.[10] At the time, as a Conservative Unionist who held the Union in the highest regard but who was against civil rights for former slaves, Harlan was stuck in between the Republican and Democratic parties; some argue that Harlan chose the Republican Party and adopted Republican doctrines to simply continue upward mobility for his career.

However, perhaps Harlan’s move to the Republican Party was a true signal of his conflicted views on race. Factors including Harlan’s father’s and wife’s views on slavery and Harlan’s relationship with Robert likely influenced the softening of his racial attitudes. This, combined with Harlan’s intense commitment to nationalism and unionism, might explain why he leaned towards the Republican Party rather than the Democratic Party. In 1870, Harlan entered a legal partnership with Benjamin Bristow, a Republican who was known as a champion of civil rights for African-Americans under the 13th Amendment.[11] During this time with Bristow, Harlan used his law practice to defend the 13th and 14th Amendments, to fight for the rights of newly freed slaves, and to consolidate African-American support for the Republican Party.[12] Harlan also argued a case regarding his own church in front of the Supreme Court when political tensions split the congregation and its possessions between pro-Northern and pro-Southern factions. In his brief, Harlan argued for the pro-Northerners that federal courts had the proper jurisdiction to right wrongs done by the state, therefore demonstrating and reinforcing his belief in nationalism and unionism.[13] It is highly probable that Harlan’s experience in similar situations that exacerbated the split between the North and the South furthered his move towards the Republican Party.

After his political shift and during his vigorous defense of the Reconstruction Amendments, Harlan campaigned for Rutherford B. Hayes in the 1876 presidential election. Once Hayes won the presidency, he nominated Harlan to the Supreme Court; during the nomination process, many questioned whether Harlan’s Republican beliefs were sincere as he had been known to demonstrate inconsistent principles during his career.[14] However, as a Supreme Court Justice, Harlan wrote many dissents in defense of the rights of African-Americans and in many ways served as the Court’s conscience. When reading many of Harlan’s Supreme Court opinions, Harlan clearly maintained many aspects of the Whig doctrine, particularly supporting a strong national government and arguing for interpretations of the 14th Amendment and of the commerce clause that maximized the powers of Congress. However, despite his seemingly progressive views in regards to the civil rights of African-Americans, Harlan was indeed a man of his era. Although he disavowed slavery and believed that African-Americans should have the same rights as others, like many during the post-Civil War era, Harlan did not see African-Americans as equal.[15] A close reading of Harlan’s dissent in Plessy v. Ferguson shows the continued complexities regarding Harlan’s views on race. Although he was arguing for a colorblind Constitution and legal system, Harlan also stated that:

“The white race deems itself to be the dominant race in this country.  And so it is, in prestige, in achievements, in education, in wealth, and in power.  So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”[16]

Harlan’s opinion is simply advocating adopting a colorblind constitutional regime to allow the continuance of the racial stratification of society. In other words, colorblindness can be used to disavow de jure racism, or racism in the eye of the law, while allowing it to continue through de facto racism. In many ways, colorblindness has come full circle and Harlan has predicted the way in which colorblindness would integrate itself into society. What started as an attempt to fight legal racist policies through the Civil Rights Movement has led to a submerged version of the same, with colorblindness being used as an excuse for allowing racist societal behavior to continue below the radar of the law. This, in turn, has caused efforts that attempt to recognize race in the face of a colorblind society to be futile.

Perhaps the fundamental error in applying Harlan’s notion of a colorblind Constitution and legal system is that the statute to which he was dissenting, mandated separate but equal public services, is profoundly different from present-day statutes that directly take race into account, most notably affirmative action. Time and time again, the Supreme Court has ruled on affirmative action in ways that has narrowed its applicability despite the obvious differences between past racist laws and current ones that take race into account in order to remedy past harms. This has happened most recently through Fisher v. University of Texas, in which the Supreme Court stated that universities should use a holistic approach to its application with race as a variable in relation to data.[17] Essentially, the constitutionally acceptable way for universities to use race is to hide it deep in the application process by coding for race through other indicators, such as income level. The irony of this is that while race is not allowed to be explicitly or numerically used in admissions, the ultimate goal of affirmative action is to reach an explicit statistical race-based form of diversity in universities. It is clear that despite the self-designation of colorblindness, society still takes race into account. Justice Harlan, a man with a complicated life and even more complicated views on race, acknowledged that race is indeed something that matters in the world in which we live, despite the colorblindness of the Constitution. Until we acknowledge the same, the application of a colorblind Constitution to a color conscious society will always be inherently flawed.

~~~

[1] Plessy v. Ferguson, 163 U.S. 537 (1896)

[2] Loren P. Beth John Marshall Harlan: The Last Whig Justice. Lexington, KY: University Press of Kentucky, 1992.

[3] Beth, The Last Whig Justice, 11.

[4] Beth, The Last Whig Justice, 12.

[5] Beth, The Last Whig Justice, 8.

[6] Beth, The Last Whig Justice, 29.

[7] Beth, The Last Whig Justice, 69.

[8] Beth, The Last Whig Justice, 73.

[9] Beth, The Last Whig Justice, 74.

[10] Tinsley E. Yarbrough Judicial Enigma: The First Justice Harlan. New York: Oxford University Press, 1995.

[11] Beth, The Last Whig Justice, 83.

[12] Beth, The Last Whig Justice, 83.

[13] Beth, The Last Whig Justice, 86.

[14] Beth, The Last Whig Justice, 84.

[15] Goodman, Paul. Of One Blood: Abolitionism and the Origins of Racial Equality. Berkeley: University of California Press, 1998.

[16] Plessy v. Ferguson, 163 U.S. 537 (1896)

[17] Fisher v. University of Texas, 579 U.S. (2016)

Book Review: “The Other Slavery”

It has long been presupposed that epidemic disease is the explanation for the decimation of the Indian population across North America. But how historically accurate is this claim? In The Other Slavery, Andrés Reséndez argues that rather than smallpox and malaria, it was slavery, overwork, and famine that led to the devastation of Native populations in the New World.

Reséndez begins by describing the foundation of Indian slavery by Spanish explorers after the discovery of goldfields in the Caribbean. From the advent of Indian enslavement by explorers, the Spanish monarchy worked to prevent slavery and to protect the Native population. Such efforts included the New Laws of 1542, which were explicitly intended to prevent Indian slavery. Although enacted with the best of intentions, the New Laws and other attempts at preventing slavery were not only unenforceable, but were also immediately overwhelmed by the reality that individuals would do whatever they could to continue enslaving Indians. For centuries after the passage of the New Laws, Natives were enslaved despite the continued formal illegality of Indian slavery by the Spanish, Mexican, and American governments.

This is perhaps the most insidious evolution of Indian enslavement – by cultivating intricate justifications, slavers moved the entire system of Indian slavery under the guise of the law. Explorers claimed holy wars to bring salvation to “heathens”; slavers amended laws to meet the labor needs of the silver industry; governors fabricated debt to ensure peonage; and Indians were labeled as “rebels” and “criminals” to establish convict leasing. While there were measures by which Natives fought for their rights, notably through legal proceedings or planned insurrections, the Indian slave trade remained strong for over four centuries.

To be sure, the enslavement of Native peoples had been practiced long before the arrival of the Spanish. For centuries, Indian tribes partook in the slave trade and from the very beginning offered captives to Europeans; what changed with the advent of European contact, rather, was the commodification of slavery by Native tribes. Reséndez focuses on the American Southwest and presents tribes, notably the Comanche and Ute, as preeminent suppliers of captives who fully participated in the enslavement of both Indians and Mexicans. Through this chronicle, Reséndez establishes an account of Indian slavery that depicts a vast expansion that stretched across the west coast of North America.

One of the most compelling narratives that Reséndez presents is what the history of Indian slavery reveals about African slavery. Much like the continued oppression of Natives despite the illegality of Indian slavery, so too were African-Americans subjugated long after the passage of the Thirteenth Amendment. Tactics that had been used for centuries against Indians, such as vagrancy laws, indebtedness, and convict labor, were also used against newly freed African-American slaves. Iterations of these strategies continue to subjugate and oppress individuals, whether through vagrancy and loitering laws used to harass the poor or through drug laws that target young Hispanic and African-American men. By detailing the chronicle of Indian slavery, Reséndez complicates and challenges both popular knowledge of what the concept of “slavery”, and the evolution of slavery in the United States both historically and to the present.

Reséndez cautiously maneuvers a loaded historical landscape by bringing forth carefully constructed arguments that use strong evidence to display the horrific instances of depravity and inhumanity perpetrated in the New World. With evidence ranging from maps to photographs and illustrations from primary sources, The Other Slavery depicts Indian slavery and explains why it was overlooked for centuries, and in doing so also illuminates its lasting effect on the present. It is only right that we acknowledge and apprise ourselves of the tragedy endured for centuries by indigenous peoples, and that we use this knowledge to inform ourselves of the world around us.