Research Blog

Research Blog

The Office for the Advancement of Research, as part of our Public Scholarship Initiative, actively solicits blog entries from John Jay faculty, staff, and external scholars working on issues of key contemporary and historical significance. We promote these entries on social media, including Facebook and Twitter, as well as within the university through a partnership with our Marketing and Development Office. If you wish to contribute an entry, please contact Director of Research Operations Daniel Stageman at dstageman@jjay.cuny.edu with a brief (1-2 sentence) summary of your proposed entry.

Our three most recent blog posts are posted below, to see older posts please visit here


The following piece gives notes for the ongoing research by Dr. Veronica Michel, an Assistant Professor of Political Science.  This research evaluates criminal proceudre codes cross-nationally to examine victim's rights in Lation America. 

The Diffusion of Victim's Rights in Latin America:

Notes on Ongoing Research

by Veronica Michel

For almost a decade I have been doing research on victims’ rights in Latin America. My interest in this topic began because while conducting research for my dissertation at the University of Minnesota I learned that victims of crime in most Latin American countries are granted a very interesting procedural right: the right to private prosecution within criminal proceedings.

I have explained in some of my previous publications (for instance, in this co-authored article with Kathryn Sikkink), that the right to private prosecution goes well beyond a victim’s right to speak granted in the US because the right to private prosecution grants the victim the right to participate  with a lawyer in the prosecution of a crime. As interesting and important as private prosecution is for access to justice (and it is, as I argue here, here, and also in a forthcoming book), in Latin America victims of crime are granted many other rights. For instance, victims have strong reparation rights, like the right to introduce a civil claim within a criminal proceeding, also known as a civil action; and victims are also granted important protection rights, like the right to be informed about the state of the proceedings or the right to be offered shelter or protection when needed.

A content analysis of the current criminal procedure codes in 17 civil law countries in the region shows that these statutes provide quite a vast array of rights to victims of crime. What I find fascinating, however, is that all these rights are quite new. Yes, victims have always existed as long as crime has been around. But “victims’ rights” as such are quite new. As you can see in the Word Cloud above, an analysis of these 17 current criminal procedure codes reveals that among the most used concepts in these statutes we find the words “victim” (víctima) or private prosecutor (querellante).

Moreover, a closer comparison of old and current criminal procedure codes also reveals that the more recent a statute is, the more references to “victims” it makes. Some old criminal procedure codes did not even include the word victim in the whole statute. For instance, the criminal procedure codes of Nicaragua of 1879 or even the one of Honduras from 1985, did not even once mentioned the word victim.

In contrast, since 1994 we have witnessed an expansion of victims’ rights in criminal procedure. For example, Mexico’s previous criminal procedure code of 1934 only mentioned the word victim twice. In sharp contrast, its latest statute which entered into force in 2014, mentions the word 169 times!

So where do these “victims’ rights” come from? Why is it that countries gradually embraced the “victim” and began to expand the rights granted to this actor? Why is it that most countries in the region today provide all these similar rights? These are the questions that I am now exploring in an article that aims to explain how Latin America came to have such a vast array of rights for victims. So, stay tuned. I will report soon a summary of my findings in this blog.


The following piece was featured by The Hill on 8/16/17 under the title: "Trump's actions are more telling than his words on Charlottesville". Heath Brown is an Assistant Professor of Public Policy and an opinion contributor to The Hill.

A Community-Based Response to Charlotteville

by Heath Brown

There's been a lot of attention paid to what President Trump has or has not said about the white nationalist march in Charlottesville, VA. Commentators are right to point to the weak statements from the President and White House as it demonstrates an unwillingness to use one of the most important powers of the presidency to confront organized racism, anti-semitism, and violent bigotry.

But a president’s powers don't end at moral suasion and rhetoric. The President oversees a massive federal bureaucracy that has historically confronted civil rights violations and violent extremism. Just six months into his administration, the President has also failed to use this power to address the rise of the anti-African American, anti-Muslim, and anti-immigrant crime.

For example, in his initial budget for the Department of Homeland Security, the President cancelled grants to several community organizations focused on fighting hate, preferring to focus on the threat posed by ISIS. This is unfortunate because grants to groups like, Life after Hate, can leverage the numerous ways local organizations address intractable social problems, and for very little money.

This missed opportunity also signals a way forward on difficult racial and ethnic issues facing the country. Community groups already provide so many services to those in need, from education to job training to healthcare. These groups can also provide a voice for those victims of hatred and represent community concerns with public officials.

This is especially important during election time when we decide who will make important decisions about government spending. I’ve found that for organizations serving immigrants, less than half have participated during recent elections. That means too few organizations are helping to register new voters, inform residents about important campaign issues, or mobilize communities on Election Day.

This is another missed opportunity to confront white nationalism and hatred, especially when we consider how effective community-based organizations can be in responding to a rise in racial violence like we’ve seen since last fall. During the 2012 election, organizations such as the Sikh Coalition quickly responded to the murder of Sikh worshippers in Oak Creek, Wisconsin. These groups successfully urged the Department of Justice to classify the murder as a hate crime and commit federal resources to the case.

Elsewhere in the country, even though there is a small percentage of immigrant organizations participating in elections, for those that do, they make a major difference. Since it began registering voters in 2004, the MinKwon Center for Community Action has registered 70,000 new voters in New York City. Similar organizations door-knock and phone-bank in numerous languages to make certain every eligible voter knows where and when to vote.

Various forms of racism are embedded in American society and institutions. A thorough response must be just as comprehensive, reliant on the work of office holders, officials in government, and community groups working together with the citizenry. For community groups to play this role they must be supported, not just from federal grants, but also through state and local sources, philanthropy, and neighborhoods that encourage this type of participation.


Jurisdictions to watch on local enforcement, part three: Frederick County, Maryland

This entry is the third in a series on the involvement of local law enforcement agencies in immigration enforcement under the Trump Administration’s January 25th executive orders. Please see the January 26th introductory entry and prior entries on Orange County, California and Etowah County, Alabama for context.

By: Dan Stageman, 2/22/17

Moving forward with the process of profiling jurisdictions that are current 287g agreement holders, it’s essential to acknowledge how quickly policy on interior and border immigration enforcement is moving. What I had originally envisioned as a set of “jurisdictions to watch” is fast becoming a set of templates for imagining the range of possible approaches to enforcement under the proliferation of new 287g agreements that seems likely to arise under the DHS’ stated intention to pursue them aggressively. DHS Secretary John Kelly’s leaked February 17th enforcement memo (released officially today) contains a great deal to unpack, primarily around the agency’s specific plans for implementing the broad strokes of Trump’s January 25th executive orders. While less sensational than the earlier leaked memo detailing plans to utilize National Guard troops to support enforcement activity in a handful of Western states, its contents have the potential to be every bit as momentous – if not more so, given the relative ease of putting them into effect.

Perhaps the most momentous statement in the memo (and the competition for that distinction is indeed sharp) comes early on, in the first sentence under Section A.:

The President has determined that the lawful detention of aliens arriving in the United States or otherwise described in section 235(b) of the Immigration and Nationality Act (INA) pending a final determination of whether to order them removed, including determining eligibility for immigration relief, is the most efficient means by which to enforce the immigration laws at our borders.

Hiding within this seemingly innocuous statement is an explicit mandate for an unprecedented expansion of the nation’s detention infrastructure, an expansion likely to bring back online every prison bed (and then some) emptied in the painstaking nationwide efforts to reduce mass incarceration, and likely to have even more profound effects on nascent parallel efforts to reduce jail populations as well. This effect may well be most keenly felt at and near the U.S.-Mexico border, where the ending of Customs and Border Protection’s longstanding “catch and release” policy will result in the immediate introduction of an entirely new population into detention. It remains to be seen how much additional bed space will be required in short order to make these new policies a reality, but we can safely make a few assumptions: (1) that the vocally pro-enforcement ranks of front-line ICE agents (and their CBP colleagues) will begin enforcement of these policies with a zeal in marked contrast to the resistance with which they met the Obama-era discretion policies that the Kelly memo rescinds in their entirety; (2) that the budgetary requirements of this immediate expansion of detention space will require congressional attention (whether in the overall annual budgetary process or an emergency allocation specific to the administration’s immigration enforcement priorities); and (3) that the expansion will result in a bonanza for private/for-profit detention providers and administration-friendly local jail authorities alike.

Numerous commentators have observed the importance of local authorities like elected prosecutors to maintaining the momentum of criminal justice reform efforts in the Trump era, and the importance of elected county sheriffs to the future of immigration enforcement is an important parallel. Frederick County, Maryland may be a bellweather in this regard, based on the recent history of the jurisdiction and its outspoken longtime sheriff, Charles A. “Chuck” Jenkins. A random sampling of recent news reports on Jenkins, the Frederick County Sheriff’s Office, and its approach to immigration enforcement could seemingly give the casual observer highly contrasting ideas about the purpose and effects of its 287g participation, depending on whether one turned up the news of the department’s recent outreach to Hispanic community groups, or the criticisms of some of those same community groups regarding its patterns of enforcement.

A more systematic examination of Sheriff Jenkins’ public statements on immigration, however, reveals him to be an immigration ideologue – in particular his April 19, 2016 public testimony before the House Judiciary Committee:

The effectiveness and value of local law enforcement partnering or at least simply cooperating with ICE is beyond measure to local public safety. Failure to cooperate and detain known criminal aliens for ICE has lead to American citizens being killed, wounded, injured, and sexually victimized in jurisdictions everywhere. […] It is my belief that if this Congress and the next President do not take action to close and secure the border with Mexico and simply enforce the federal immigration laws that exist, every county in America will become a border county. [emphasis added]

In sharp contrast to the more measured, evidence-based, public safety-oriented approach position outlined by Sheriff Todd Entrekin of Etowah County, Alabama (as profiled in my last entry), Jenkins chooses to align his public stance with the absolutist language (“everywhere”, “every county”) deployed by President Trump throughout his campaign, constructing the narrative of an immigrant crime-wave wholly unsupported by evidence, but signaling a commitment to nativist ideology and the policy priorities that accompany it. This contrast adds important context to the key characteristics that qualify Frederick County for inclusion in this series:

1) “Jurisdictions to watch” have operated consistently under the same chief executive since before the Obama administration’s efforts to reform 287g. In most cases, this means that the same individual who signed the jurisdiction’s first 287g memorandum of agreement is still making the relevant executive decisions about involvement in immigration enforcement moving forward.

2) They are (with few exceptions) county law enforcement agencies headed by elected sheriffs.

3) They have started deportation proceedings for significant numbers of immigrant arrestees under their 287g programs in the past.

4) They have clear incentives for directly involving their officers in immigration enforcement. While these incentives are often political, they are often financial as well, with direct income and/or indirect ‘economic activity’ arising from close ties to private/for-profit immigrant detention facilities located within the jurisdiction, and/or Intergovernmental Service Agreements (IGSAs) under which ICE pays the jurisdiction a per-day fee to detain immigrants in the local jail.

Frederick County fulfills all four of these criteria, even while posting 287g processing numbers that appear moderate next to some of the larger, more immigrant-heavy jurisdictions under review. Frederick County is a potentially important jurisdiction for immigrant advocates because of the possibilities that it raises for working with other levers of local political power to keep in check the worst impulses of a sheriff who is apparently approaching 287g enforcement under the assumptions of nativist ideology. Frederick County, while leaning Republican, is not necessarily an ideological stronghold, and Sheriff Jenkins’ support there, while widespread, is not universal. Perhaps more importantly, Frederick County transitioned in 2014 to a County Charter Government, meaning an elected County Executive – currently Democrat Jan H. Gardner – holds approval power over his budget.

FREDERICK COUNTY, MARYLAND

SHERIFF: Charles A. Jenkins.

Jenkins, a Republican and public supporter of the far right Tea Party movement, was first elected sheriff in 2006 – in part on the strength of campaign promises to ‘crack down’ on unauthorized immigrants – following the retirement of his predecessor James W. Hagy. Jenkins followed through on those promises with the signing of Frederick County’s first 287g agreement in 2008, and has since won reelection twice, in 2010 and 2014. An early supporter of Trump’s presidential campaign, Jenkins has been a frequent commenter since the election on the 287g program, local law enforcement detainer policies, and the Trump administration’s approach to ‘sanctuary cities’. Thus far, he has been careful to distinguish his department’s jail-enforcement agreement from the street-based, task-force agreements rescinded by the Obama administration in 2012, stressing that his officers do not engage in ‘show me your papers’ style enforcement; it will be interesting to know if his rhetoric on this distinction changes once the renewal of 287g task-force agreements is a matter of public DHS policy.

ARRESTEES PROCESSED FOR DEPORTATION UNDER 287G: 138 in 2012 – a number just into three figures and lower than many other 287g counties but proportionately significant for Frederick County’s population of 245 thousand (8.7% of whom Hispanic or Latino). Also of particular note is the statistic in the Frederick County Sheriff’s Office 2012 Annual Report stating that, of the 1,136 detainers lodged in the program’s history up to that point, only 9.5% (108) were “encountered and arrested for felony offenses” – a statistic that throws into question Sheriff Jenkins’ repeated statements about not engaging in street arrests on the basis of immigration status.

ACTIVE IMMIGRANT DETENTION FACILITIES: The Frederick County Detention Center appears to be a purely administrative distinction applied to immigrants detained in the Frederick County Jail, among its general population bed capacity of 348. It’s ADP of 54 immigrants would thus account for some 16% of the jail’s general population, or 12% of its total population of 439.

AVERAGE DAILY POPULATION (ADP) OF IMMIGRANT DETAINEES: The Frederick County Jail held an average of 54 immigrants on any given day throughout 2012. Per diem/per detainee compensation was $83 in 2007 – Assuming 3% annual increase and consistent ADP, a conservative estimate of 2016 gross receipts for detention in Frederick County would be ($112 * 54 detainees * 365 days) = $2.2 million. A significant proportion of this total – about $930 thousand($112 * 138 processed for deportation * 60 day average stay), or around 42% –  could potentially be attributed to enforcement activity under 287g.

HISTORY OF 287G IN FREDERICK COUNTY, MARYLAND: As detailed above, Frederick County entered into its current 287g enforcement agreement in 2008, in fulfillment of Sheriff Jenkins’ campaign promise to do so. Assuming its growing population of immigrants from Mexico and Central America features a proportionately growing undocumented community, the political/ideological value of Jenkins’ vocal anti-immigrant stance could well be rooted in the anxieties of the county’s core voting demographic of longtime white residents in reaction to the changing character (rural to suburban, agricultural to residential, growing diversity) of the community. Jenkins’ 63% 2014 reelection victory, despite the controversies dogging his department in prior years, would seem to bear out this view – indeed, Jenkins himself attributed his victory to “old Frederick”.

CONTEXT AROUND CONTINUED IMMIGRATION ENFORCEMENT UNDER 287G IN FREDERICK COUNTY, MARYLAND: Frederick County bears a very different demographic profile from the overwhelmingly white, overwhelmingly Republican Etowah County, making it impossible for Sheriff Jenkins to pursue an aggressive approach to 287g enforcement in a vacuum. The vocal support the Sheriff’s immigration enforcement activities received from the prior County Commissioner have not been matched by the current elected County Executive, and if immigrant detention in the Frederick County Jail has significant budgetary implications for the Sheriff’s Office and the County overall, so do the liability concerns raised by enforcement activity rooted in profiling. Jenkins has not signaled a willingness to take on the perspective of a law enforcement professional to discuss the evidence-based merits of immigration enforcement as a public safety tool; thus the levers available for preventing or mitigating the harm likely to be caused by a ramped-up approach to 287g enforcement in Frederick County are distinct from the kinds of approaches that might bear fruit with a less ideological actor like Entrekin. These approaches are legal and political, and reliant on the reality that Jenkins is not a fully independent decision-maker in his role as Frederick County’s chief public safety officer. Consistent pressure on Frederick County’s budget, and the political fortunes of its elected decision-makers, may serve to rein in the darker impulses of an ideologue like Jenkins, who would otherwise appear likely to take the freest possible hand allowable under the Trump administration’s new approach to local immigration enforcement.

Daniel L. Stageman, PhD is Director of Research Operations at CUNY John Jay College of Criminal Justice. He is also a criminologist whose scholarship focuses on making sense of America’s punitive approach to immigrants. He can be contacted at dstageman(at)jjay.cuny.edu. This has been the second in his series of profiles of “jurisdictions to watch” on local immigration enforcement under the new policies promulgated by President Trump’s January 25th executive orders. Next up: Alamance County, North Carolina.


The Trump Administration and LGBT Rights

Our latest blog entry comes from Professor of Political Science Daniel Pinello. Professor Pinello is also author of America's War on Same-Sex Couples and their Families: And How the Courts Rescued

By:  Daniel Pinello, 2/7/2017

Shortly after the November 2016 presidential election, the New York Times published the headline “Trump Win Seen as ‘Devastating Loss’ for Gay and Transgender People.” Offering reasons from the President-Elect’s business and personal histories to believe he himself lacked animosity toward lesbian, gay, bisexual, and transgendered folks, the article nonetheless emphasized the overt hostility to LGBT rights evident in the Republican Party’s national platform (including the GOP’s advocacy of parents’ requiring their gay and transgender kids to go into “conversion therapy” to alter their sexual orientation or gender identity). Moreover, Donald Trump’s choice of Governor Mike Pence as Vice President especially distressed the queer community. The Indianan promoted public funding of conversion therapy, voted in Congress against bills prohibiting sexual-orientation and gender-identity discrimination and against the repeal of the military’s Don’t Ask, Don’t Tell policy, and signed a state law allowing businesses the “religious freedom” not to serve gay and lesbian people.

Trump’s cabinet picks also sent tremors through LGBT groups. Declining to sing at the inauguration, for instance, Jennifer Holliday observed that the incoming federal regime was “a who’s who of homophobia.” Notable among the Trump nominees were Jeff Sessions as Attorney General and Rex Tillerson as Secretary of State. As an Alabama senator, Sessions supported amending the Federal Constitution to outlaw same-sex marriage, voted against queer people’s open service in the American military, and objected to bills protecting against sexual-orientation and gender-identity discrimination in the workplace. When Tillerson became chief executive of Exxon Mobil in 2006, the oil company’s score on the Human Rights Campaign’s Corporate Equality Index was 0 percent. Exxon Mobil didn’t formally adopt anti-discrimination policies regarding sexual orientation and gender identity until 2015, a year after the Obama Administration mandated that businesses under contract with the federal government protect LGBT workers. By 2017, the oil company’s HRC score was 85 percent, conspicuously behind 514 other enterprises (like Apple, Chevron, and Walmart) with 100 percent ratings.

So what damage can the Trump Administration do to LGBT rights? A comprehensive answer first requires recognition that our American system of federalism provides states with most of the powers important to the daily lives of queer folk. Legal relationship recognition (whether between coupled partners or the minor children they’re raising), the ownership and distribution of property within families, protections against discrimination in the workplace, housing, and public accommodations – all these vital issues and more are primarily regulated at the state level. Thus, LGBT rights that exist pursuant to state law (such as to marry or adopt children or not to be fired from a job for being gay or transgender) cannot be directly affected by the President or Congress. So queer people living in progressive places like California, Massachusetts, and New York have little to fear immediately from Republicans in Washington, DC.

Rather, LGBT individuals living in the 28 jurisdictions (Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming) without statewide legal-protections against sexual-orientation or gender-identity discrimination have better reason to feel insecure. For years, bills that would add sexual orientation and/or gender identity to the personal-attribute categories protected from discrimination under federal law have languished in Congress. And that lacuna in national legal safeguards for queer folk isn’t likely to be filled while the White House or either congressional branch is under GOP control. Accordingly, had Hillary Clinton won the Electoral College in addition to the popular vote, the Republican-dominated House of Representatives would still have blocked progress in federal statutory protections. So Trump’s ascendancy isn’t decisive for the logjam in such prospective national legislation.

However, the new president can revoke his predecessor’s executive orders regarding policies of concern to the LGBT community or issue new decrees antagonistic to queer rights. For example, in 2010, Barack Obama’s Department of Health and Human Services promulgated regulations requiring hospitals receiving Medicare or Medicaid funding to extend the visitation rights of patients to include their same-sex partners. A subsequent directive allowed married lesbian and gay couples to take family and medical leave. In all, more than 100 executive actions and regulatory changes by the Obama Administration improved the daily lives of queer Americans in sundry ways. Trump has the power to annul all such improvements, including the aforementioned discrimination ban on federal contractors.

Of course, whether he’ll do so is an open question. With regard to workplace protections in particular, American public opinion overwhelmingly supports such guarantees. While just 59 percent of national respondents told the Gallup Organization in 1982 that they thought homosexuals should have equal rights in terms of job opportunities, the proportion who supported equality in the workplace had increased to 89 percent by as long ago as 2006. Hence, Trump, who came into office with the lowest public approval ratings of any president in the modern era, would threaten alienating even more Americans by gratuitously countermanding Obama Administration benchmarks of LGBT-rights progress.

Indeed, on January 30th, the White House announced that the President would not disturb Obama’s 2014 directive prohibiting federal contractors from discriminating against LGBT employees or job applicants. But just two days later, on February 1st, a draft executive order circulated within the Trump Administration which would have provided broad protections for employers and service providers that, based on religious objections, deny jobs or services to LGBT workers or customers, similar to the bill Vice President Pence signed into law as governor of Indiana. By February 4th, the New York Times reported that Ivanka Trump and her husband Jared Kushner were instrumental in scuttling the proposed “religious-liberty”-based rollback of queer rights. Hence, what the new president ostensibly gave on a Monday with one hand – preserving Obama’s executive order of three years ago – he almost took away with the other hand on Wednesday, but for the intervention of social liberals within the President’s immediate family.

If Trump himself has any genuinely reliable political instincts, he’s likely not to tamper extensively with rights policies affecting queer people. In a January 12thNew York Times profile, for instance, Peter Thiel, the billionaire venture capitalist who was a member of the Trump transition team and who is openly gay, averred that “Trump is very good on gay rights. I don’t think he will reverse anything.”

Even diehard right-wing congressional Republicans have seen the political writing on the wall with regard to marriage equality, which the Pew Research Center found 55 percent of Americans supported in 2016. After the U.S. Supreme Court nationalized the right of same-sex couples to marry in Obergefell v. Hodges of June 2015, no organized effort emerged in the GOP-dominated 114th Congress to amend the Constitution for the purpose of toppling that judicial ruling. Although House Republicans threw abundant red meat to constituents by passing numerous symbolic repeals of the Affordable Care Act, GOP lawmakers didn’t even attempt one congressional vote to overturn Obergefell.

The venue in which President Trump may have the most consequential detrimental effects on the everyday lives of queer folk is in his judicial appointments, because federal courts will continue to address disputes affecting LGBT litigants. Last October, for example, the Supreme Court announced it would review whether a U.S. Department of Education regulation – requiring that "When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity" – appropriately implemented Title IX, a 1972 law banning discrimination “on the basis of sex” in schools receiving federal money. Also last October, the Court of Appeals for the 7th Circuit, in Chicago, granted an unusual discretionary rehearing by that full judicial bench on whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation, as held in a 2015 Equal Employment Opportunity Commission decision.

Judge Neil Gorsuch, President Trump’s nominee to replace Supreme Court Justice Antonin Scalia (who died almost exactly a year ago), is likely to be as unsympathetic to queer litigants as his predecessor, who never voted in support of an LGBT-rights claim. Yet substituting Gorsuch for Scalia on the high tribunal would not immediately change its 5-to-4-vote equilibrium in favor of due process and equal protection for all Americans, regardless of their sexual orientation or gender identity. The real threat to the Supreme Court’s balance toward fairness for all would come in the event either Justice Ruth Bader Ginsburg (who turns 84 in March of this year) or Justice Anthony Kennedy (who will be 81 in July 2017) leaves office. A replacement of either of them by someone in the mold of Gorsuch, Scalia, or Justice Clarence Thomas could be disastrous to future LGBT-rights claims in the federal judicial arena.

With that real threat on the horizon, however, I don’t think there’s likely to be substantial retrenchment on constitutional rights already established by existing precedents such as Lawrence v. Texas (the 2003 invalidation of state consensual-sodomy statutes), United States v. Windsor (the 2013 upending of the federal Defense of Marriage Act), and Obergefell v. Hodges. The reasons for my optimism are several.

First, consider federal judicial voting trends on LGBT-rights claims. My 2003 book Gay Rights and American Law analyzed how federal and state appellate courts treated the civil rights claims of lesbians and gay men between 1981 and 2000 through an examination of 1,439 votes by 849 appellate judges in 398 decisions and opinions from 87 courts in all federal jurisdictions and 47 states. The volume’s concluding chapter made this observation:

Federal judges selected by Democratic presidents, compared with Republican appointees, positively determined an astonishing 40.5 percent of the probability “space” between complete success and utter failure of lesbian and gay rights claims in federal appellate courts. Among 45 federal cases in the study not influenced by controlling precedent, only 26.7 percent of 116 votes by judges nominated by Republican presidents were favorable to sexual minorities, while 60.2 percent of 83 votes by Democratic appointees supported homosexuals – a difference of 125 percent! Indeed, presidential party predicted case outcome far better than any other personal attribute [such as age, gender, race/ethnicity, or religious affiliation] of federal judges in the investigation.

My 2016 book America’s War on Same-Sex Couples and Their Families - And How the Courts Rescued Them – which counted the votes between 2013 and 2015 in all lower-federal-court decisions adjudicating disputes over the constitutionality of state same-sex-marriage bans – revealed a remarkable change from what the 2003 volume found:

[T]he (admittedly smaller) sample of federal judges in this survey had even more astonishing voting patterns based on the political party of the presidents who selected them. Among both the sixteen district-court and nine circuit-court judges who were Democratic appointees, 100 percent of their votes – every last one – went in favor of marriage equality, representing a 66-percent improvement over the 1981-2000 Democratic-nominee voting record. Whereas, with regard to the jurists chosen by Republican presidents, four of their six circuit votes, or 67 percent, went against the right of civil marriage for same-sex pairs, while just one of five trial-court decisions, or 20 percent, did so. In total, six of eleven Republican appointees, or 55 percent, embraced marriage equality. Hence, although the gap established by presidential party wasn’t as dramatic in 2013-2014 – at 82 percent – as it was in the last two decades of the twentieth century (125 percent), the disparity, nonetheless, was still substantial.

In other words, the rates at which both Democratic and Republican appointees to the federal bench backed the civil rights claims of LGBT litigants increased steadily, even dramatically, over time. The frequency of support from judges selected by Democratic presidents rose by two-thirds (from 60.2 percent to 100 percent) between 1981-2000 and 2013-2015, while the increment for Republican designees was more than double (from 26.7 percent to 54.5 percent). These enhanced levels of judicial protection mirrored the kinds of advances in American public opinion regarding queer rights referenced earlier. Accordingly, the voting trends of both Democratic and Republican nominees generally bode well for continued support of LGBT rights in federal court.

A second reason for optimism that landmark decisions like Lawrence, Windsor, and Obergefell won’t be jeopardized by Trump judicial appointments is the legal doctrine of stare decisis, which is central to traditional jurisprudential explanations of decision making in American courts. In brief, adjudged cases furnish examples or authority for analogous future fact patterns or similar questions of law. Adherence to established precedents provides security and certainty, mandating established legal principles under which rights may accrue, be recognized, and be followed. Stare decisis facilitates a predictable legal system.

From a macro perspective, the U.S. Supreme Court’s own commitment to honoring precedents is revealed by the statistic that less than .002 percent of all of the high court’s opinions have ever been formally overruled by the Court itself. At the micro level, consider the remarkable endurance of Roe v. Wade. I remember well, for instance, how, after the April 1992 oral argument in Planned Parenthood of Southeastern Pennsylvania v. Casey, all well-informed court observers predicted that, as a result of President George H. W. Bush’s replacement of the liberal lions William Brennan and Thurgood Marshall with David Souter and Clarence Thomas, Roe v. Wade would finally be toast. But, just as the New York Times forecasted with 84-percent certainty last November 7th that Hillary Clinton would be the 45th president, the 1992 conventional wisdom was also wrong. Roe’s core holding prevailed as a precedent in Casey.

Equally important as these general observations about the crucial role of stare decisis in the American legal system, Chapter 5 of Gay Rights and American Law conducted an empirical test of the impact of precedent in the LGBT-rights context. My investigation first identified the votes of judges who were likely predisposed (because of their age, gender, party affiliation, race/ethnicity, religion, and a variety of other factors) not to support the legal claims of queer litigants. The study then compared the computed probabilities of how jurists would vote with their actual behavior deciding cases. I discovered that over one-third (36.4 percent) of the judges on courts of last resort (both state supreme courts and the U.S. Supreme Court) who were otherwise inclined not to endorse LGBT rights nonetheless did so when a binding precedent in favor of such claims was involved in the adjudication. And the proportion of conservative-minded judges on intermediate appellate courts (such as the U.S. Courts of Appeals) who followed relevant liberal precedents was especially striking: 78.6 percent.

Hence, there are good reasons for cautious optimism that President Donald Trump’s impact on LGBT rights in the United States won’t be significantly detrimental.


Local police and immigration enforcement under the Trump administration

Our latest blog entry comes from Dan Stageman, PhD, Director of Research Operations for the Office for the Advancement of Research at John Jay College. 

By:  Dan Stageman, 1/26/17

I began drafting a speculative blog entry about the Trump Administration’s likely actions on immigration enforcement before I caught the news of yesterday’s executive orders on the subject. That entry began with some thoughts on the uncertainty and unpredictability of the new administration’s actions in the immigration arena or any other. Just 24 hours later, those introductory paragraphs read like clueless optimism – the sort of hopeful, best-case-scenario thinking that many of us have continued to indulge in defiance of all evidence to the contrary.

As of January 25th, I’m ready to declare myself officially done trying to find silver linings. What is left for advocates and others concerned with the well-being of America’s immigrant communities is to gird for a long and bitter fight. As I begin to shape my own part in this fight, the anxiety around where to get the most return on investment for my limited time, energy, and expertise is profound. I don’t think there are any easy answers to this dilemma, but the time-honored exhortation to “think globally, act locally” has particular relevance in the context of an immigration enforcement regime that looks set to outdo all prior efforts to involve local law enforcement agencies as a “force multiplier.” Trump’s “deportation force” – an accurate-enough label for the planned trebling of the ranks of Immigration and Customs Enforcement (ICE) agents, a glaring exception to an overall federal hiring freeze – will take considerable time to implement. In the meantime, he has clearly signaled his intention to rely on local law enforcement agencies to quickly ramp up deportation efforts, to a level that will likely make the record-setting pace of expulsions reached under President Obama’s first term seem humane by comparison.

In my last essay on this topic, I speculated that the Trump Administration might choose to take the broadest possible interpretation of section 287g of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, allowing it to ‘deputize’ any interested local law enforcement agency by signing a memorandum of agreement including the bare minimum of training and oversight. Trump’s January 25th executive order in fact goes much further, making a blanket declaration empowering local and state police to “perform the functions of immigration officers in relation to the investigation, apprehension, or detention” of undocumented or deportable immigrants, “under section 287(g) of the INA, or otherwise.”

It remains to be seen how the Trump administration and potential local partners will interpret these provisions, just as it remains to be seen where and how they will be challenged by states and localities, in practice or in court. My own prior work on local immigration enforcement partnerships leads me to believe that local enforcement will be restarted (or ramped up, where it has been ongoing under 287g “jail enforcement” agreements signed with the Obama Administration) first – and with the most significant impact and potential harm to immigrant communities – in jurisdictions that fit a few key criteria. First, these “early adopter” jurisdictions will be headed by the same chief executives (most commonly elected county sheriffs) who signed 287g memorandums of agreement in the past. Second, they will be jurisdictions that started deportation proceedings for significant numbers of immigrant arrestees under these programs in the past. And third, they will be jurisdictions that have clear incentive(s) for directly involving their personnel in immigration enforcement at the local level. These incentives can be politically cynical or ideologically symbolic, but they are often straightforwardly financial: many of the same jurisdictions that have held 287g enforcement agreements in the past also host private/for-profit immigrant detention facilities to which they maintain close ties, or detain immigrants themselves under potentially lucrative Intergovernmental Service Agreements (IGSAs) under which ICE pays the jurisdiction a set per-day fee for each immigrant detained.

Using these and other characteristics, I believe we can anticipate with some accuracy the first round of jurisdictions that will move forward with local immigration enforcement efforts under cooperative agreements with the Trump Administration. We can also make informed judgements about the potential harm these agreements will pose to immigrant communities residing within the jurisdictions in question – and the potential for legislative, legal, political, or practical challenges brought by advocates to mitigate this harm.

In an effort to help advocates better focus their limited resources on effective and broadly impactful challenges to the Trump Administration’s local immigration enforcement efforts, I have begun pulling together the relevant data that I believe will help us make these judgements. This is the first entry in a series I have planned to highlight “five jurisdictions to watch” under the Trump administration’s local enforcement partnership efforts.

There are of course many more than five jurisdictions where ramped up local enforcement efforts are likely to harm immigrant communities, and even the most comprehensive statistical analysis would be limited in the predictive power it could provide. The purpose of organizing this series as a “listicle” is an acquiescence both to blogging culture and to the limits of my own time. It is not my intention, however, to promote an academic project, or protect and withhold privileged academic data. On the contrary, I plan to post the database as a public data tool, and I hope that sharing it in this and other forums helps to generate discussion on ways to make it more useful as a tool for advocates. Please contact me (or contribute a public comment) if you have any thoughts on how to do that.

Each jurisdiction profile will include the full list of facts and figures that justify its inclusion, along with a discussion of its previous involvement in immigration enforcement, its local political and state legislative context, its immigrant communities, and thoughts on what advocates could do (in many cases what they are already doing) to challenge or mitigate the potential harm of local enforcement. The five jurisdictions that I will profile are:

Time permitting, I will also include “(dis)honorable mention” profiles of Monmouth County, New Jersey (Sheriff Shaun Golden) and Butler County, Ohio (Sheriff Richard K. Jones). Note that these jurisdictions do not simply represent the top jurisdictions in terms of likelihood or likely harm of local immigration enforcement; as noted above, they are included based on my own best judgement of the available data. I’ve also made an effort to include jurisdictions from across a broad regional spectrum, to highlight the reality that this phenomenon is not exclusive to any given region – and the equally important fact that federal-state tensions on immigration are reflected in parallel state-local tensions. Thus our first profile will focus on Orange County, the lone 287g holdout in what is arguably the most pro-immigrant state in the nation.

Those who are interested should watch this space. I will post these profiles as I complete them, singly or in multiples as time permits. In the meantime, please don’t hesitate to comment or contact me with any thoughts, questions, or requests.

Daniel L. Stageman, PhD is Director of Research Operations at CUNY John Jay College of Criminal Justice. He is also a criminologist whose scholarship focuses on making sense of America’s punitive approach to immigrants. He can be contacted at dstageman(at)jjay.cuny.edu


To view our archived research blog posts, please visit here