Mia Brett

The legal system often leaves survivors of abuse with only one viable option

A common refrain in attacking women who have accused men of sexual assault (especially rich men) is that they are just looking to bring a civil suit and get a payday.

This accusation gets worse if these women so much as breathe in the direction of legal representation. Unfortunately, civil litigation is often one of the only ways for victims of gender-based violence (sexual assault, domestic violence, etc.) to get any kind of public acknowledgment, or redress, considering the abysmal statistics on convictions and jail time. Rather than judging the civil litigation route, we should be encouraging people to seek acknowledgment and personal justice in any way they see fit. And if that method comes with some money at the end for victims, so much the better.

Many victims report an experience of retraumatization and minimization by police when they report sexual assault. Police commonly mock, harass, dismiss and belittle accusations out of an assumption that women aren't telling the truth and a system of rape culture that downplays sexual assault entirely. Our adversarial system is tough on survivors in the best of circumstances. It was built as a structure that supported rape culture. But when one adds the sexism and racism pervasive in policing reporting sexual assault or domestic violence can be almost impossible for many victims.

Even when victims bring cases and make it through police questioning, the statistics on successful sexual assault prosecutions are dismal. In Manhattan, in 2019 prosecutors dropped 49 percent of sexual assault cases brought to their offices (an increase in dropped cases from 2017). Perhaps one reason prosecutors drop so many sexual assault cases is that they are one of the most difficult violent crimes to get a conviction for. That same year, in Manhattan, the conviction rate for sexual assault was 44 percent compared to 79 percent for first-degree murder. Nationwide, less than 1 percent of rapes and attempted rapes lead to felony convictions and less than 3 percent of rapists ever spend a day in jail (pre- or post-conviction). We shouldn't accept the low conviction rate as a justification to not bring charges. It's up to police and prosecutors to believe victims and overcome the challenges if a victim bravely comes forward.

When a man is finally brought to justice, we often ask why the women didn't come forward sooner and we judge the reliance on whisper networks for not doing enough to protect people from the abuser. Considering the retraumatizing treatment of victims, and the dismal success rates, how can we blame women for not coming forward? Until we put serious effort into reforming the criminal justice system's treatment of sexual assault cases and other gender-based violence, we cannot expect survivors to take on the risk and responsibility of coming forward to protect others without public support. One possible path forward is restorative justice, which could provide accountability without retraumatization. This option is appealing, especially for those who knew their abuser. Unfortunately, this option is not available in many jurisdictions and needs more logistical support than is currently in place.

Until the criminal justice system improves, I suggest we stop looking down on women bringing civil suits against rapists and abusers. Civil litigation has a lower bar of evidence for judgment in favor of the plaintiff than criminal court. The standard in civil court is a "preponderance of evidence" instead of "beyond a reasonable doubt." While the result from a civil trial obviously isn't a criminal conviction, a verdict that favors the plaintiff (accuser) would be a very public acknowledgment of their experience and could bring public accountability as well as protection for others (a civil verdict is a lot louder than a whisper network). Additionally, depositions and testimony from civil suits are a legal record that can be subpoenaed for jobs, other lawsuits or even criminal charges in the future (assuming the prosecutor doesn't make a deal with the perpetrator, like in the Bill Cosby case). While the system is still adversarial, a victim isn't reliant on police and prosecutors to decide if she's credible. Instead, she hires a personal advocate to protect her interests and file the case (this also makes this option too expensive for many victims, though). Also honestly, why shouldn't we support survivors seeking financial redress after a traumatic assault?

This week, New York City council members Carlina Rivera and Selvena Brooks-Powers introduced a bill to amend the existing Gender-Motivated Violence Act with a two-year window for revived civil litigation. Soon after the provision in the Violence Against Women Act to grant survivors of domestic violence and sexual assault the power to bring federal lawsuits was struck down in United States v. Morrison, New York City passed the Gender-Motivated Violence Act to allow victims to sue for damages.

The legislation was passed with a seven-year statute of limitations. Rivera and Brooks-Powers introduced a bill with a two-year "lookback window" to give victims more time to bring suits. Many victims need time to process their trauma and statutes of limitations can often make getting justice or public acknowledgment difficult. Many states are changing their statute of limitations with regard to rape and childhood sexual assault as a response to the abuse scandals from the Catholic church.

The proposed amended New York City bill aims to provide redress for survivors coming forward as a result of the cultural moment of #MeToo who are currently shut out as a result of the statute of limitations. The council members particularly had victims of Dr. Robert Hadden in mind. Hadden abused hundreds of women while working as a gynecologist and was granted a sweetheart deal by Manhattan District Attorney Cy Vance, which included zero jail time. The amended legislation would allow his victims to bring suit and hopefully have a day in court. In a press release, Rivera said, "For too long New Yorkers who survive instances of gender-motivated violence have been shut out of opportunities to pursue civil actions against their assaulters. Brooks-Powers said, "All survivors deserve to have their voices heard—on their own terms—and by adding a lookback window to the [Gender-Motivated Violence Act], countless others will finally be able to come forward with their stories."

For many shut out of the criminal justice system, civil litigation can be a powerful tool for public accountability, acknowledgement and a day in court on a victim's own terms. Let's stop judging women for seeking financial redress and instead support survivors of domestic violence and sexual assault for coming forward in whatever way possible. A criminal courtroom is not the only place to support their voices.

Mia Brett, PhD, is a legal historian who writes about the construction of race and gender in American history. She lives with her dog Tchotchke. You can find her tweeting @queenmab87.

A historian explains the key mistakes Texas Republicans are making in their new education bills

Education bills are being passed around the country to protect children from the "evil" critical race theory and 1619 Project. They might make white children feel bad. Forget that those railing against these academic efforts rarely understand them or their purpose correctly, or that sexist and racist education has been making students feel bad for generations. The latest bill to gain attention is a Texas Senate bill passed in response to a House bill, set to become law in September, that included a bunch of conservative ahistorical requirements, but also had too many women and marginalized groups on the required list. While claiming to fight indoctrination, these bills miss historically accurate opportunities to paint the United States in a positive light, because they're so worried kids might learn about white supremacy in the process.

The first mistake these bills make is introducing "morality" into an analytical historical education. Morality is usually a personal or religious judgment that can be culturally dependent. It's not useful for analyzing history. Bigotry, violence, discrimination, white supremacy and harm impact are concepts we should be considering. Both bills require students be taught "the fundamental moral, political and intellectual foundations of the American experiment in self-government," and prohibit teaching that "an individual's moral character, standing,or worth is necessarily determined by the individual's race or sex." However, only the House bill includes a requirement "that the history of white supremacy, including but not limited to the institution of slavery, the eugenics movement, and the Ku Klux Klan, and the ways in which it is morally wrong." Both bills mandate that teachers don't teach that "with respect to their relationship to American values, slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States, which include liberty and equality."

This last statement included in both is one of the most problematic requirements of these educational mandates as it forces teachers to elide important aspects of America's history and ultimately participate in nationalistic propaganda. We know that the first African slaves arrived in 1619 (don't worry I didn't cite the 1619 Project), only 12 years after Jamestown, Virginia, was founded. We know the first laws "racializing" slavery and making it an inheritable state were passed in Virginia in 1662.

At the time of the Declaration of Independence, slavery was legal and existed in all 13 colonies. The first gradual abolition law was passed in 1780 in Pennsylvania with all Northern states following until New Jersey passed the last one in 1804. Since most Northern states passed graduation emancipation acts, meaning enslaved people would be freed once they reached a certain age, slavery existed in many Northern states until the Thirteenth Amendment in 1865. Slavery was also inscribed in the Constitution with the Three Fifths Compromise, that enslaved peoples would be counted as three-fifths of a person for census purposes and representative apportionment.

There were also federal laws that supported the rights of slave owners and Southern state rights like the Fugitive Slave law of 1793, made stronger by Prigg v. Pennsylvania, and the Fugitive Slave Act of 1850 which required those living in free states to participate in catching fugitive slaves. It's hard to argue that an institution with this level of federal support was a deviation from the country's values at the time.

The more conservative Texas senate bill is particularly puzzling in that it wants teachers to tell children slavery was a deviation from America's values, but doesn't want the students to learn that slavery and the Ku Klux Klan are "morally" wrong. Isn't that kind of a mixed message? At least the House bill pays lip service to teaching that American values actually condemn racism. The hesitancy to condemn the Klan is a real missed opportunity as well, because it's one of the only times conservatives actually have examples of the United States fighting violent racism.

Historically, the federal government has not been swift in its actions to tamp down racist institutions, with the exception of the first Klan. Initially, the first KKK formed in the wake of the Civil War during Reconstruction in 1865. Klan activities were violent, racist and targeted against Republican Reconstruction efforts. As a result, Union troops stationed in the South during Reconstruction worked hard at combating the violence. President Grant signed the Enforcement Act of 1870 and the Civil Rights Act of 1871 to enforce civil rights provisions and combat the Klan. Grant eventually suspended habeas corpus and invoked the Insurrection Act of 1807 to apprehend Klan members, many of whom were incarcerated and fined. A grand jury named the Klan as a "terrorist organization" in 1870. By 1872, the first Klan had mostly disbanded as a result of the government's willingness to use troops and enforce legal action.1

I'm not in the habit of teaching American history through a lens of proving our country's morality and commitment to equality, but if you were, I can't really think of a better example than the federal government's response to the first KKK. Of course, to use this example you would have to want to condemn the Klan and white supremacy.

While I appreciate that the initial Texas House bill includes mandating teaching Martin Luther King's "I Have a Dream Speech," Frederick Douglass, the Chicano Movement, and Women's Suffrage (and the willingness to condemn the Klan and white supremacy of course), the biggest problems with these bills exist in both of them.

History should not be taught through a moral lens or as a tool of nationalistic propaganda. Bigotry and discrimination should not be taught as if both sides are valid (oh yeah, another provision in both bills is that teachers can't give deference to one perspective over another). We can teach aspirational possibilities of the founding documents without ignoring that slavery was imbedded in the fabric of the nation. In fact, as Nikole Hannah-Jones explains in the 1619 Project, Black Americans have been at the forefront of pushing the United States to live up to its promised ideals.

Mia Brett, PhD, is a legal historian who writes about the construction of race and gender in American history. She lives with her dog Tchotchke. You can find her tweeting @queenmab87.

Texas creates a market for abortion vigilantism

So you know how we often tell anti-choicers that our abortions are none of their business? Well, unfortunately, Texas just passed a law (HB1515/SB8) to make all abortions after heartbeat detection (about six weeks) literally everyone's business.

Usually (as in almost always) enforcement is the state's job but, according to this new ban, enforcement will only be the purview of regular citizens. It doesn't expect people to barge into procedure rooms and engage in a citizen's arrest, but it instead provides a mechanism for suing abortion providers. If individuals can prove the abortion provider performed an illegal abortion, they will be awarded $10,000 per illegal abortion proven in civil court. Yes, this law is really as bonkers as it sounds. It's so bonkers that the following paragraphs will mostly be about proving just how ridiculous this law is.

A new abortion law is the first law in the nation to place the entire mechanism of enforcement in the hands of private citizens.

First, six week abortion bans (and really all pre-viability bans) are unconstitutional. We know they're unconstitutional, because they keep being struck down, and we have language from multiple United States Supreme Court cases telling us they're unconstitutional (none has yet been overturned). Roe v. Wade is still law and it recognizes a constitutional right to abortion until fetal viability. Planned Parenthood v. Casey is still law. It created the "undue burden" standard for abortion restrictions.

A pre-viability abortion restriction cannot create an "undue burden" to accessing an abortion. Whole Women's Health is still law (though the Supreme Court has accepted a similar case this term suggesting a revisit) and it struck down targeted abortion restrictions that created an undue burden to accessing an abortion. More than that, the court held that determining the undue burden of a restriction was the purview of the courts, not the legislatures. Six-week abortion bans aren't just pre-viability bans. They would effectively ban all abortions since pregnant people often don't know they're pregnant at six weeks. Sixteen states have attempted to fully ban abortions before viability (usually around 23 weeks) and have been stopped by a federal court. Texas knows that six-week abortion bans have pretty universally been overturned by federal courts, which is why the state is trying a new approach with this latest law.

Texas' new law is the first in the nation to place the entire mechanism of enforcement in the hands of private citizens. The other unique aspect of this law is that people can sue without proving damage. People who were not personally harmed by the abortion, and were not a party to the "crime" in any way, somehow still have standing to not only sue in civil court but also to recover damages to the tune of $10,000.

Financial settlements in civil court are supposed to provide redress for actual harm done to a person so how does the awarding of money when you weren't a party to an action at all make any sense? You're right! It doesn't! This award is more like a bounty paid to someone for recovering a criminal or a reward for supplying useful information to authorities. Except in both those cases, state law enforcement officials are involved and there's no legal cause of action where a person claims to have standing to sue based on someone else's private business. Last month, the Supreme Court limited the scope of a class-action suit by ruling that only people who had suffered "concrete harm" had a right to sue TransUnion for incorrectly tying people to terrorist organizations through their credit reports. One would hope the court would agree that private citizens don't suffer "concrete harm" by strangers having an abortion. But we all have reason to be scared about any abortion case heading to the current court.

Texas's Travis County Attorney Delia Garza outlined a scenario in which a rapist could profit off his crime by suing the doctor who performed an abortion on his victim.

So why would Texas go out on such a weird legal limb for this law? Legislators are hoping that by removing all state actors from enforcement of the law they can avoid constitutional challenges and stay out of federal court. The legislative director for Texas Right to Life admitted this himself when he said "this was not working in federal court, so let's try a different route." As I said, Texas knows six-week abortion bans have been pretty universally struck down by federal courts considering constitutional questions, so with this new law they're hoping to keep the suits in state courts that don't take up constitutional questions. This makes the suits much more difficult to bring and means the suits carry with them more risk. There's no telling what each individual judge will decide so even if one judge refuses to award damages because the law is blatantly ridiculous another could uphold the law and force individuals to pay thousands and thousands of dollars for performing abortions. Additionally without a clear path for legal challenges many abortion providers won't try to challenge the law and will instead just stop performing abortions entirely.

The financial motivation also provides a high incentive to interfere in other people's lives and drag people into court. Consider the mechanisms for abuse. Even if a woman did not have an illegal abortion, her rapist or abusive spouse could drag her and her doctor into court and force her to disclose medical records and personal information. Travis County Attorney Delia Garza outlined a scenario in which a rapist could profit off his crime by suing the doctor who performed an abortion on his victim. Since the law includes those who "aided" an illegal abortion in being subject to a suit, it also has the added effect of possibly preventing pregnant people from even seeking counsel on abortion. A spiritual leader, therapist, friend or even a cab driver (if they drove the person to the abortion facility) could be subject to one of these suits.

This new Texas law is a transparent political ploy to enact an abortion ban without fear of federal challenge. Abortion providers, abortion funds, clergy and other groups have filed a lawsuit in the US District Court for the Western District of Texas in the hopes they can stop the law before it takes effect September 1. Since it uses a different mechanism for enforcement, the lawsuit challenging it had to include every judge and clerk who could have jurisdiction in enforcing the law in civil court. Unfortunately though we know the law is currently unconstitutional, it's unclear if the procedural change in the law could protect it from the district court judge stopping its effect.

While we're waiting to hear about this lawsuit, please make sure to support local abortion funds in Texas like the Frontera Fund, which provides assistance in the Rio Grande Valley, and The Afiya Center, which is a larger reproductive justice organization for Black women and girls that includes assistance for abortion access.

—Mia Brett

Newly found unmarked graves for Native children are a dark reminder of an ongoing legal battle

This past month hundreds of unmarked graves of Native children have been found at two separate residential schools in Canada. Unfortunately, the United States has its own history with residential schools and removal of Native children, amounting to cultural genocide. These practices supported weakening the Native population and tribal sovereignty to serve US interests of stealing land from indigenous tribes. The discovery of these graves are a cruel reminder of the tragic treatment of Native-American children, which should remind us of the importance of the Indian Child Welfare Act, or ICWA, which is currently going through legal challenges.

In North America, missionaries often imposed religious education on Indigenous tribes in order to "civilize" Native people and enforce assimilation. One of the first laws passed in the United States to accomplish these goals was the Civilization Fund Act passed in 1819. The act encouraged and funded activities and education carried out by "benevolent societies" or religious organizations in order to "civilize" Native Americans. Not only did this act amount to forced cultural erasure, but it also supported the federal government funding religious groups and Christian education.

This act set the stage for the formation of federally supported residential Indian schools after the Bureau of Indian Affairs was created in 1824. In 1891, Congress passed a "compulsory attendance" law for residential schools. While the law was not strictly enforced, it did enable troops to come onto a reservation and forcibly take children away to enroll them in one of the boarding schools. The Commissioner of Indian Affairs was also authorized to use coercive practices, such as withholding rations, in order to force parents to send their children to the residential schools.

When Hopi parents resisted the removal of children in 1894, troops not only rounded up 104 kids but also arrested 19 Hopi elders and sent them to Alcatraz for almost a year as punishment for resisting. In 1898, Congress passed another law that made attendance at school for Indian children mandatory, something that did not exist in every state for non-Indian children until 1912. By 1902, there were 25 residential schools off reservations in 15 states or territories. These amounted to forced assimilation and cultural genocide in their practices, which included requiring haircuts, uniforms, Christian religious services, and denial of indigenous languages and customs. Physical and sexual abuse were rampant and ignored. Enrollment grew throughout the 20th century, reaching a height of 350 residential schools by the 1970s.

Residential schools were not the only method of Indian child-removal and cultural erasure. From 1958 to the early 1970s, the Indian Adoption Project removed thousands of Native kids from reservations and placed them in Christian homes. Child-welfare groups removed children from native homes for minor issues that never would have justified removal from white Christian homes. Minor hospital stays or even traditional religious practices were enough to justify removing native children from their families and tribes. Eighty-seven percent of Native children removed from their homes in this period were placed with non-Native families. As a result of residential schools and adoption, between 25-35 percent of Native children were removed from their homes.

In response to the disproportionately high rate of Indian child removal, Congress passed the Indian Child Welfare Act in 1978. ICWA gives Native American tribes exclusive jurisdiction over children who reside on an Indian reservation and presumptive jurisdiction over the foster care placement of Native children who do not live on reservations. ICWA prioritizes familial, tribal and cultural connection when considering tribal placement and requires active efforts to keep children with their families or tribes. While ICWA has helped stem the extreme removal of children, the lack of federal oversight has allowed noncompliance. Native parents are four times as likely to have their children removed and placed in foster care than white parents.

While many in child welfare consider ICWA the "gold standard" in child welfare policy, it has faced, and continues to face, legal challenges. In 2013 ICWA reached the United States Supreme Court with Adoptive Couple v. Baby Girl. In it, a non-Native mother put her baby up for adoption after the Native father expressed interest in terminating his parental rights. However, after learning of the baby's adoption by a non-Native couple, the father sued under ICWA. The Court found that since the father was noncustodial, he did not necessarily have rights to sue under ICWA. While the decision ruled against the Native father, it did not overrule ICWA as a law. Unfortunately, it did inspire a number of legal challenges to the law by special interest groups as a result of Justice Alito's opinion, which analyzed the baby's connection to the Cherokee tribe through race rather than citizenship or political identity.

These challenges mostly failed until a coordinated attempt by the Goldwater Institute using an Equal Protection argument to challenge ICWA. The institute claims that ICWA is a race-based law that treats Native children differently from non-Native children based on their race. Claims that Indian law conflicts with the Equal Protection Clause date back to the passage of the Fourteenth Amendment. If successful could have far reaching implications for tribal sovereignty beyond ICWA.

In Morton v. Mancari in 1974, the Supreme Court ruled that a preference for Indians did not violate the Equal Protection Clause of the 14th Amendment because such a preference was intended to correct discrimination, not cause it. The court argued that a preference for hiring Indians in governmental positions in the Bureau of Indian affairs gave "Indians a greater participation in their own self-government; to further the Government's trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life."

Additionally ICWA, and most Indian law, is based on tribal citizenship and sees Native American identity as a political one, not a racial one. Rebecca Nagle, citizen of the Cherokee Nation, has explained to me that, "Anything that feeds this argument that Native identity is based on racial biology, rather than a political status as citizens of tribes, feeds this far-right attack on our tribes." She emphasized that Native Americans aren't a homogeneous group but instead tribes are separate sovereign nations.

In 2018, a federal district court in Texas struck down portions of ICWA in Brackeen v. Zinke. Judge Reed O'Connor sided with conservative arguments that ICWA violates the Equal Protection Clause and categorizes children by race, not eligibility for membership in a tribe. After initially overruling O'Connor, the Fifth Circuit agreed to hear the case, resulting in a mixed decision released in April 2021 upholding the law but overruling certain provisions. The Fifth Circuit found that the higher standard of requiring "active" versus "reasonable" efforts be made to keep the child with family to be unconstitutional as well as the requirement that child welfare agencies provide a "qualified expert witness" to justify placing a Native American child in foster care.

While this recent opinion is mixed, it does not seem to justify the Equal Protection challenge or the claims that ICWA is a race-based law. Unfortunately if the case is further challenged and makes it to the Supreme Court, it's possible the entire law will be overturned and Native children will once again have no protection from removal.

The truth about Bill Cosby, the law, and the legacy of rape in America

Serial rapist Bill Cosby has been released from prison. His 2018 conviction for the sexual assault of Andrea Constand has been overturned. While there are legitimate legal reasons for the decision, his release certainly is not justice. It's hard, however, not to feel that the biggest tragedy is that despite the short jail time, three years, Cosby spent more time in prison than 97 percent of rapists who never spend a day behind bars. Cosby's release does not mean he did not rape up to 60 women. It does not mean Constand was not telling the truth. His release shows us while due process must be the standard for jail time, it absolutely cannot be the standard for believing women.

The unfortunate reality is releasing Cosby was probably the right decision legally. In 2005, the then-District Attorney Bruce Castor made an "unconditional promise" to not charge Cosby in the assault of Andrea Constand, which led Cosby to give depositions in a civil case. Cosby's testimony in that civil case, his admittance that he drugged women to have sex with them, was then used in his criminal trial. The Pennsylvania Supreme Court ruled this violated Cosby's due process rights. I think Cosby belongs in jail. I believe his accusers. Yet under current law, it was the only decision the court could have made. That doesn't mean justice was served. Castor denied justice to Andrea Constand as soon as he made the decision for her to give up a criminal prosecution in favor of Cosby's depositions in a civil matter.

Rape culture and patriarchy are embedded in our criminal justice system. Historically, it has been almost impossible for women to get justice after a sexual assault. In the British North American colonies, rape was illegal but rarely prosecuted and the statute defined rape as requiring forceful carnal knowledge (defined as penetration) against a woman who was not a man's wife (martial rape did not exist as a legal cause until the late 20th century). Additionally, rape was usually a legal issue through the lens of male property. If an unmarried woman were raped, that property was her fathers. If a married woman were raped her husband's property was violated. Age of consent laws also made prosecuting rape difficult, as it was not until the late 19th century that states began to raise the age of consent from 10 to 12 to 14 to 16.

Until the 1970s, rape charges usually required force, multiple assailants or an attack by a man with absolutely no prior relationship with the victim. This definition excludes most rapes, which are committed by someone the victim knows. Because of these legal difficulties, the more common sexual assault charge in the 19th century was seduction. A seduction charge was warranted if a man obtained a woman's sexual consent through the promise of marriage. In these instances, a woman had to be "virtuous" (a virgin), but it was not required that force be proven or that the man be a stranger. Case law in the 19th century made a woman's "previous chaste character" a requirement to bring a charge of seduction and allowed the defendant to provide evidence of "specific acts of lewdness" to disprove a woman's chastity at trial. Though seduction was a more common charge, many of the women described assaults that included more violence or coercion than a simple promise of marriage. Men could escape a charge of seduction by marrying their victims, which was the ultimate result in many of these cases.

Rape charges were even more difficult for women of color who were often assumed to be promiscuous. Enslaved women couldn't legally be raped and interracial sex was more regulated by law than rape of Black women. The entire slave system supported the rape of enslaved women, as it caused pregnancy and ultimately produced more slaves. Furthermore, an enslaved woman defying her master's wishes, whatever they may have been, was a transgression unto itself. Rather than charging slave owners for rape, enslaved women were charged for resisting. In State of Missouri v. Celia, a slave, Celia was charged with murder for killing her owner to stop his four-year-long sexual assault on her. After slavery ended, Black women didn't have much more legal protection from sexual assault. While they technically were now included in the law, it wasn't until 1959 that white defendants were convicted of raping a Black woman in the South when Betty Jean Owens testified against the men who raped her.

Historically, the requirement to prove force and the distrust of the victim's statement made evidence in rape trials almost impossible to gather. A victim would also have to prove her own chastity and evidence of "lewdness" could be admitted to challenge her accusation of rape. Trial courts would rely on medical evidence by doctors to determine both "force" and "rape," but that meant medical understandings of rape and gender, as well as the personal doctor's opinions, heavily influenced rape convictions. Doctors not only gave testimony about evidence of force, such as marks on the body, but also evidence of a woman's resistance. To prove rape, a woman had to not only resist the assault, but resist it to her "utmost resistance." It took until the late 19th century for "force" to be interpreted as possibly including threats of violence. Adding even more confusion, appellate courts often distrusted the medical evidence that had been used to convict a man of rape, challenging what few convictions happened.

Thanks to activism by feminists, rape laws began to change in the 1970s to consider non-violent rape, marital rape, date rape and requirements of active consent. This period saw the passage of "rape shield laws," which protected a victim's identity and made prior sexual experience inadmissible. Before this change in the law, evidence of irrelevant promiscuity could be used to impugn a victim's character and "resistance" to rape. Unfortunately, these legal changes have not successfully changed the cultural understanding of rape or the legal assumptions present in rape trials. Women are often still expected to prove they did not "ask for it." We too often do not consider witness testimony as reliable and instead start from a position of assuming women are lying.

While the legal principle of "innocent until proven guilty" must continue to be applied to rapists in a court of law, that should not be the standard in the court of public opinion. Due process of law is necessary to deprive a man accused of sexual assault of his freedom. But why is it necessary before we believe women? Believing a victim of sexual assault without due process of law does nothing except deprive the accused of our good opinion. As long as the legal system remains biased against victims of sexual assault, we must separate legal standards of guilt from support and believing women.

I'm a scholar of critical race theory — here's the reality about it behind the conservative moral panic

Critical race theory (CRT) is the current conservative media boogeyman spreading moral panic about poor white people being confronted with the history of racism in the United States. Claims about critical race theory range from plausible but incorrect (it's about white privilege and white people's racism) to outlandish and bizarre (it supports a white genocide and confiscating all white people's property). The truth of critical race theory is that it's a socio-legal framework for analyzing the disparate impact of policies on marginalized communities, most often Black people.

OK, but what does that mean? Since CRT was an academic methodology taught in law schools and advanced college courses until recently, those who truly understand CRT often speak in academic language that can be difficult to understand. However, unlike a lot of academic methodologies, CRT has clear and practical real-world applications. Due to its name and origin, people often believe it's an overly theoretical study without concrete evidence. In reality, the scholarship in CRT is often based on the study of statistics, laws and legal cases (about as concrete as you can get).

Berkeley Law Professor Khiara Bridges, a scholar of intersectionality and reproductive rights, provided a list of key tenets of critical race theory in her book Critical Race Theory: A Primer. Professor Bridges argues that critical race theory is concerned with Justice (with a capital J) and is not a thought experiment or academic exercise. Her tenets are that CRT acknowledges that race is a social construction, not a biological reality, that racism is a normal embedded feature of American society (not an aberration), a rejection of traditional liberalism's understandings of racism, and a connection between scholarship and people's real lives. While Professor Bridge's list of core tenets restate a lot of earlier CRT scholarship, it is relevant that her book was published in 2018 and continues to agree with the originators of CRT, such as Derrick Bell and Kimberle Crenshaw. Often, critics of CRT claim the origins are reasonable but the current state is what is problematic. As a newly minted CRT PhD, my scholarship remains loyal to the origins and agrees with Professor Bridge's core tenets.

So what do those core tenets mean practically? First, race has no scientific basis but is instead a social construction based on arbitrarily differentiating between different groups of people. According to the American Society of Human Genetics, "The science of genetics demonstrates that humans cannot be divided into biologically distinct subcategories." However, while race is social and arbitrary, the effects of racism are very real. Rather than essentializing different groups of people based on race, critical race theory challenges essentializing by examining societal reasons for disparate impacts on different races (don't worry we'll come back to this). To say racism is a normal embedded feature of American society, critical race theory is arguing for systemic, rather than individual, causes of racism. It is not concerned with individual instances of racism but instead with large societal impact.

The tenet about liberalism is a little more complicated. Critical race theory originated in the 1970s and gained popularity, among academics, in the 1980s. This period was a response to the work of the civil rights movement that ended segregation and resulted in important legislation like the Voting Rights and Civil Rights Acts. After this work, racialized language was removed from law which ended de jure (but not de facto) segregation. Laws could no longer differentiate based on race, which had been justified until this period as treating both races the same, "separate but equal."

Now laws could not use any explicitly racialized language and instead had to be "facially neutral." CRT scholars came out of a period during which racism was still having a big impact and laws were still discriminatory despite their "facially neutral" status. Therefore CRT sought to address the disparate impact of facially neutral laws, which challenged the traditional liberalism notions of "colorblindness" and legal "equality." CRT showed the need for "equity." The notion of equality seeks to treat everyone equally. The notion of equity suggests that equal treatment is not sufficient if people do not start out on equal footing with equal opportunities. So when CRT scholars say they are challenging traditional liberalism they are not advocating for bringing down democracy. They are just showing that equal treatment is insufficient.

So how is CRT connected to real-world examples? It's so connected that the entire concept of intersectionality—that a person's social and political identities can combine to create different types of discrimination—originated as a tool for Kimberle Crenshaw to argue legal cases that dealt with both racial and sex discrimination, so a single issue analysis was insufficient. In her 1989 paper, "Demarginalizing the Intersection of Race and Sex," Crenshaw discussed three cases in which Black women faced both race and sex discrimination, not one or the other. Crenshaw argued against judges who thought creating a separate class of Black women for the purposes of discrimination would be unwieldy, wanting to limit causes of action to either race or sex discrimination. Crenshaw said "Intersectionality was a prism to bring to light dynamics within discrimination law that weren't being appreciated by the courts."

Mandatory minimums are one of the easiest laws to use to illustrate the need for critical race theory. Mandatory minimums refer to mandatory sentencing for crimes. This was a big push of the tough-on-crime laws of the 1970s and 1980s. The classic example is the sentencing for crack vs cocaine. While crack and cocaine are very similar drugs, crack was predominantly used in the Black community while cocaine was more common among white people. Therefore, those arrested for crack were more likely to be Black. Guess which drug had the harsher penalty? This was justified through the claims that crack was more addictive, led to more violent crime and caused the "crack baby" epidemic. It turns out none of that was true and there was no compelling state reason to treat crack and cocaine differently in terms of sentencing.

So without using any racialized language, and with a law applying equally to white and Black people, mandatory minimums managed to target Black people for incarceration at much higher rates than white people. This is a facially neutral discriminatory law. Do mandatory minimums have a racist intent? Probably. But it doesn't matter. The discriminatory impact is enough to show the harm. That is what critical race theory teaches us. In 1995, Derrick Bell famously asked "Who's Afraid of Critical Race Theory," but I hope after reading this you see critical race theory isn't scary at all.

How the story of Britney Spears reveals the dark and enduring legacy of American eugenics

Britney Spears has been under a conservatorship for 13 years. After her 2008 mental health crisis, Spears' father, Jamie Spears, was put in control of her persona and financial arrangements, though last year a co-conservator has been placed in control of the financial matters along with her father. While Spears seems to have pushed privately for the conservatorship end, or at least for her father to be removed from control, since 2014, Spears made a public statement yesterday for the first time. There can be no question that Spears wants out of her conservatorship after saying, "I truly believe this conservatorship is abusive. I don't feel like I can live a full life."

Perhaps the most chilling part of the pop singer's court statement was that she has an IUD her conservator won't let her remove. While not permanent birth control, the IUD has the effect of forced sterilization. As Britney Spears is under conservatorship based on claims about her mental health, her story joins the long history in the United States of prejudice, eugenics and forced sterilization of those with disabilities.

The first eugenics compulsory sterilization law in the United States was passed in 1907 in Indiana. However, the legal justification wasn't clearly upheld until the 1927 Supreme Court case Buck v. Bell in which Oliver Wendell Holmes famously said "Three generations of imbeciles are enough." The case was a purposeful legal challenge of the Virginia 1924 law authorizing compulsory sterilization of the "intellectually disabled."

The superintendent of the Virginia State Colony for Epileptics and Feeble-minded, Albert Sidney Priddy, filed a petition to sterilize 18-year-old Carrie Buck, claiming Buck was a "genetic threat" to society and had a mental age of 9. According to Priddy, Buck's mother had a mental age of 8 and couldn't care for her five children. Buck's adoptive family had her committed to the colony after she became pregnant. They suggested she was feeble-minded and immoral. In 1927, in an 8-1 decision, the Supreme Court upheld the Virginia sterilization law and sustained the petition to sterilize Buck under the justification that she was immoral and feeble-minded.

No matter the facts of the case, no person should be forced to be sterilized. However, the truth of Buck's life makes this decision even more enraging. Rather than becoming pregnant as a result of her own "immorality," Buck actually became pregnant after being raped by the nephew of her adoptive family. They likely had her committed so they wouldn't have to deal with the reality of the situation and there is little evidence of any intellectual deficit. Carrie Buck was committed and sterilized all as a result of being poor and raped. Her lawyer, Irving Whitehead, barely put on a case. He called no witnesses to counter the supposed medical experts and never introduced evidence that she had been raped. In fact, Whitehead was on the board of the Virginia Colony and as a strong supporter of the sterilization law. Carrie Buck was reported to be an avid reader until her death and her daughter, Vivian, was on her school's honor roll.

The opinion of Buck v. Bell ushered in the passage of compulsory sterilization laws all over the country justifying the sterilization of over 60,000 people. Thirty-two states passed compulsory sterilization laws and the numbers reached their height in the 1930s and 40s. While justified on the basis of "feeble-mindedness," criminality and immorality, many of the women who were forcibly sterilized, sometimes without their knowledge, were women of color. While initially white men were the most likely to be sterilized, Black women soon became the most common target with white women as the next most likely victims. In 1942, Skinner v. Oklahoma ruled against a forced sterilization law but the opinion was very narrow. Oklahoma had passed a forced sterilization law in 1935 that targeted "habitual criminals," exempting white-collar criminals. Jack Skinner, a white man convicted four times of robbery, was sentenced to compulsory sterilization under the new law. The Supreme Court ruled the Oklahoma act violated due process. The court cited the fact that the law targeted specific kinds of crimes, excluding crimes like embezzlement, and a concurring opinion pointed to Buck v. Bell as an example when forced sterilization was called for. The decision only touched on forced sterilization as a punitive measure and did not discuss forced sterilization to address those who were mentally ill or disabled. This ruling helped in part to move the focus of compulsory sterilization away from white men.

Compulsory sterilization lessened by the 1960s and most laws were repealed in the 1970s, but it took feminist campaigns and lawsuits to accomplish the progress. A 1974 case, Relf v. Weinberger, exposed widespread coercive sterilization of women by threatening to expose welfare benefits. The judge in the case ultimately ruled that federal funds could not be used for involuntary sterilizations. Alternatively, in 1978 in Madrigal v. Quilligan, a District Court in California ruled that doctors who coercively sterilized Hispanic women who did not speak English had the best interests of their patients in mind. The judge in the case blamed the women for not ensuring they were informed before signing medical forms and their culture for their trauma. Despite the ruling, the case did result in improvements to informed consent in California.

Unfortunately, forced sterilizations continue to this day. Unwanted sterilizations were being performed on women in California prisons until 2010. Additionally, many states continue programs that encourage unwanted sterilizations. These laws often offered an early release from prison or a reduced sentence if a person agreed to get sterilized. While not technically compulsory, these laws are certainly coercive. Just last year a complaint was filed alleging sterilization procedures were being performed on women in ICE custody without their knowledge or consent. Temporary sterilizations, like Britney Spears', are also often used in abusive ways. In Killing the Black Body, Dorothy Roberts discussed the abuse possibilities with contraceptive implants like Norplant and the narratives around pregnancy for Black and impoverished women to manipulate them into using such semi-permanent forms of birth control.

Ultimately reproductive control, whether to have children or not have children, is a central tenet of reproductive justice. Robin Marty and Laurie Bertram Roberts emphasized the use of IUDs as a form of reproductive coercion in their email from Yellowhammer Fund today in support of Britney Spears, but they also noted the importance of their availability for those who do want one.

Unfortunately, many in the disability community still face steep obstacles to accessing reproductive control over their own bodies. On the one hand, laws support restricting the reproductive control of disabled people, while on the other possible disabilities like Down syndrome are used to justify pre-viability abortion bans. Many think forced sterilizations are a thing of the past, but in truth, Buck v. Bell has never been overturned.

If we want true reproductive justice, it must include not only the choice to not have children, but also the agency to have as many children as we want. This fight must center the disability rights movement to ensure that the law respects the agency of all of us and can't use a mental illness as justification to seize our rights.

"There can be no discussion about Britney Spears' fight to end her conservatorship that does not center … disability justice and reproductive justice. Her right to bodily autonomy was attacked because of her mental illness and the need for support should not result in a surrender of rights." —Disability activist Rebecca Cokley

The politics of violence against women

Last week, I wrote about the causal connection between domestic violence and mass shootings, and the urgent need to take domestic violence seriously. While this is true and while domestic violence remains relevant in 60 percent of mass shootings, we should be concerned with domestic violence outside of public safety. Intimate partner violence accounts for 15 percent of all violent crime, but it's often left out of crime debates. Perhaps this is because 85 percent of domestic violence victims are women.

Historically, domestic violence has been ignored or even legally accepted. Until the 19th century, Anglo-American common law allowed wife-beating as long as the husband did not inflict permanent injury on his wife. Domestic violence wasn't illegal in every state until 1920, but it took the feminist movement of the 1970s to get the culture to begin to take it seriously. More often than not, American jurisprudence viewed marital relations as something protected under a right to privacy, which served to ignore violence within a marriage in order to protect "marital harmony."

This view was aided by the decidedly gendered lens used to see domestic violence, often referring to it as "wife-beating," for example. As many laws allowed for male control of the household and marriage, the gendered lens minimized safety. This began to change in the 1970s. After Craig v. Boren in 1976, a case concerning gendered language in a law governing alcohol consumption, sex-based state action became subject to a heightened level of scrutiny under the Equal Protection Clause of the 14th Amendment. This led to the removal of gendered language in criminal codes in favor of phrases like "spousal assault" and "domestic violence." While this effort was supported by advocates at the time, it hurt legal challenges to domestic assault policies because they seem gender neutral, despite 85 percent of victims being women.1

In Thurman v. City of Torrington, domestic violence victim Tracey Thurman sued her local police department in Connecticut for violating her civil rights and failing to protect her from an abusive husband. In 1982, she left her husband, Charles "Buck" Thurman, with their young son. The following eight months involved ongoing verbal abuse, trespassing, stalking and threats of violence from Buck Thurman that were repeatedly ignored by police. In that time, police refused to charge Buck Thurman with criminal trespass after he forcibly entered Tracey Thurman's home to remove their son; charged Buck with disturbing the peace only after he broke Tracey's windshield (but did little to keep Buck away from Tracey); and ignored reported threatening behavior, including five visits to the police station by Tracey.

Tracey Thurman was eventually granted a restraining order. On June 10, 1983, a police officer arrived 25 minutes after Tracey called police to report her husband on her property. The cop sat in his car while he stabbed her over 20 times outside the house. The police officer eventually took the knife away but watched as Buck kicked Tracey in the head multiple times breaking her neck. Buck was not arrested until 40 minutes after police arrived and Tracey was loaded into an ambulance. The suit claimed that Tracey was ignored by the police because she was married to the perpetrator.

The suit's constitutional basis rested on the claim that as a woman and a victim of violence, Tracey Thurman was treated differently than other victims of violence. A federal district court found that "a pattern of affording inadequate protection, or no protection at all, to women who have complained of being abused by their husbands ... is tantamount to an administrative classification used to implement the law in a discriminatory fashion." She was awarded $2.3 million but settled for $1.9 million.

As a response to the Thurman lawsuit, Connecticut passed the "Thurman Law" (aka the Family Violence Prevention and Response Act) in 1986, which required police to make arrests in domestic violence cases, even if the victim doesn't press charges. Outside Connecticut, police departments all over the country were motivated to change their responses to domestic violence to avoid a financially damaging lawsuit.2

In 1994, the passage of the Violence Against Women Act (VAWA) was intended to address the lack of resources available to victims of gender-based violence. However, the inclusion of a civil-rights remedy for the disparate treatment of women victims caused controversy. Title III of the statute treated violence against women as a form of sex discrimination and established a federal civil-rights cause of action for victims of gender-based violence to be able to sue their abusers in federal court. The act was meant to "protect the civil rights of victims of gender-motivated violence and to promote the public safety, health, and activities affecting interstate commerce."3

Its "interstate commerce" clause was necessary to give Congress authority to enact civil-rights protections under the Constitution's Commerce Clause. Unfortunately, this provision was struck down in 2000 in United States v. Morrison. VAWA provided a federal rape shield law, community violence prevention programs, protections for victims evicted due to events related to domestic violence or stalking, funding for victim assistance services, and legal aid for survivors of domestic violence.

Domestic violence is still the leading cause of physical injury to women, more than car accidents and muggings combined, and more than half of female homicide victims are killed as a result of intimate partner violence. About 25 percent of women have experienced severe domestic violence (compared to one in nine men), and a third of women have experienced some sort of physical violence by their intimate partner.

Trans people and women with disabilities are particularly vulnerable to domestic violence. Domestic violence affects women of all races and incomes but Black women experience intimate partner violence at a rate 35 percent higher than that of white women, and about 2.5 times the rate of women of other races. Over half of Indigenous women have experienced physical violence by an intimate partner and Indigenous women face the highest incidents of rape and assault of any ethnic group.

Indigenous women also face an additional legal hurdle for bringing charges, as tribal courts do not have jurisdiction to prosecute non-members. Unlike other gender-based violence, the majority of violence committed against Indigenous women is committed by men outside their ethnic group. The 2013 reauthorization of VAWA included provisions to address violence against Indigenous women but tribal jurisdiction and the crimes included must be expanded. While VAWA was reauthorized multiple times, it has yet to be reauthorized since in 2018. Joe Biden ran on a promise to reauthorize it. House Democrats did so in March. Next time a senator expresses concern for the safety of women in trans-inclusive spaces, remind them that the real danger is intimate partner violence and demand that they vote to reauthorize VAWA.

Mass shootings are making news again — here are the legal loopholes that help them happen

As our country continues to open up, mass shootings are making the news again. On March 16, a man went on a shooting spree against Asian women, killing eight people in Atlanta. On March 22, a man killed 10 people in a grocery store parking lot in Boulder, Colo. On April 15, a man killed nine in a FedEx facility in Indianapolis. On May 9, a man opened fire at a birthday party, killing seven in Colorado Springs. This week, on May 26, a man killed 10 people at a San Jose, Calif., transit center.

And these are the stories that made the news. According to the Gun Violence Archive, which includes gun incidents in which no one dies in their definition of a mass shooting, there have been 232 mass shootings and 15 mass murders since January 1.

What may surprise people is that while we heard about mass shootings less during the covid pandemic, it was actually the deadliest year for gun violence in decades. There were 610 mass shootings and 21 mass murders last year. So why didn't we hear them? Because most mass shootings are domestic violence incidents occurring in the home.

According to one study that defines a mass shooting as an incident in which four or more people are shot and killed, excluding the shooter, 61 percent between 2009-2018 occurred entirely in the home. Another 10 percent occurred in a home and in public. The majority of children and teens who die as a result of mass shootings don't die in school; 72 percent died in a mass shooting involving domestic violence. At least 54 percent of mass shootings included at least one intimate partner or family member as a victim. The connection between mass shootings and domestic violence gets stronger when you include men who have histories of domestic violence and become mass shooters. An analysis of 749 mass shootings between 2014 and 2019 found almost 60 percent of mass shooters either were committing domestic violence or had a history of domestic violence before the mass shooting. An ex-girlfriend of the San Jose shooter who killed 10 people this week accused him of rape and intimate partner violence.

While I could not find a statistic on the percentage of gun deaths each year that are domestic violence related, we do know that a gun in the home makes it five times more likely a domestic violence situation will be deadly and domestic violence assaults involving a gun are 12 times more likely to result in death than assaults with other weapons or bodily force. Women in the United States are 21 times more likely to be killed by a gun than in other high-income countries and nearly half of all women homicide victims are killed as a result of intimate partner violence.

While domestic violence is a deadly threat to women in a country with so much access to firearms, it is mostly discussed in relation to mass shootings when the shooter also kills people outside the home. Much of the increase in gun deaths in 2020 is a result of domestic violence and people being stuck in the home. However, without the spectacle of the public mass shooting the media mostly ignored gun deaths last year. The narrative about returning to normalcy has also included concern about returning to mass shootings, ignoring the prevalence of domestic violence shootings last year.

In 1997, Congress passed a law, often called "the Lautenberg Amendment," prohibiting anyone convicted of domestic violence from owning a firearm. Unfortunately, loopholes allow a domestic abuser to legally purchase guns. One issue with the law is that it only applies if the abuser has been married, lived with, or had children with his victim. Therefore, those convicted of assaulting a dating partner or a stalking victim can still pass a background check and legally purchase a gun. This has been dubbed "the boyfriend loophole." As of 2018, only 27 states have passed laws to address it.

Many abusers can legally purchase firearms, because their convictions are never entered into the federal database. This must be done manually. State databases don't automatically populate the federal one. This oversight led to the killing of 26 people in a Sutherland Springs, Texas, church in 2017. The shooter, Devin Patrick Kelley, was convicted of domestic abuse in 2012 while in the Air Force. He should have been barred from legally purchasing guns in 2017 but the Air Force said his convictions had not been entered into the National Criminal Information Center database.

There are also gun sales when a background check isn't required. Private sellers are allowed to sell guns without running background checks. This is particularly common at gun shows. If the background check system doesn't immediately make a determination, and three days pass without the FBI continuing to investigate, the gun can be sold in what is called a "default proceed" sale. This is also referred to as the "Charleston loophole" after the Charleston, South Carolina, church shooting.

Improving our societal response to domestic violence and improving our societal commitment to keeping guns away from domestic abusers has the potential to drastically lower gun deaths in this country and limit the number of mass shooters.

Seventy-five percent of mass shooters use a legally purchased gun and, as previously said, 60 percent of mass shooters have a history of domestic violence. Everytown for Gun Safety argues we must strengthen state laws prohibiting domestic abusers from owning guns, improve implementation and enforcement of existing laws, closing the previously mentioned loopholes, improving domestic violence records, requiring gun dealers to notify law enforcement when a convicted abuser attempts to buy a gun, and funding research on domestic violence and gun violence.

I argue we must do all that but we also must take domestic violence as a societal problem more seriously at the first warning sign to ensure domestic abusers get a conviction and are guaranteed to fail a background check.

The long, cruel shadow of a 45-year-old Supreme Court death penalty case still haunts us

In 1976, the Supreme Court reinstated the death penalty after a four-year moratorium in Gregg v. Georgia. Rather than taking the opportunity to rule once and for all that capital punishment constitutes "cruel and unusual punishment" violating the Eighth Amendment, the Court instead ruled the death penalty serves two social purposes, deterrence and retribution, and "comports" with the core of the Eighth Amendment.

To satisfy issues raised four years earlier in Furman v. Georgia, which imposed the moratorium, the court in Gregg required an appellate review process to ensure objectivity in imposing the death penalty and for the sentencer to take the defendant's character into consideration. Almost 50 years later the death penalty remains constitutional, but as more and more states stop imposing capital punishment, opposition is higher than ever.

In 1999, 38 states had the death penalty as a possible sentence. In early 2000, Governor George Ryan issues a moratorium on the death penalty in Illinois. After years of states moving to reinstate the death penalty, this action was the first in states moving away from capital punishment. Today, only 23 states can still sentence a defendant to die, though three have governor-imposed moratoriums. Some states, like New York, reinstated the death penalty and outlawed it without ever executing anyone after Furman v. Georgia. While 24 states have abolished the death penalty, it remains part of federal sentencing and protected by the Supreme Court.

Despite the protection by the Supreme Court, many argue the death penalty does in fact constitute "cruel and unusual" punishment under the Eighth Amendment. This argument is based on the legal standard set forth in Trop v. Dulles that determining the cruelty of a punishment must be considered with "evolving standards of decency." In that case, the court ruled that revoking citizenship was a punishment "more primitive than torture" based on decency standards in 1958. Therefore, even though the death penalty has been constitutional for most of United States history, our contemporary "standards of decency" should abolish the practice.

While the Supreme Court has never ruled a state's method of execution to be unconstitutional as constituting "cruel and unusual punishment," it did list certain execution styles that would be considered unconstitutional in Wilkerson v. Utah in 1879. In ruling that a firing squad was an acceptable method of execution, the court wrote that drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive were all "cruel and unusual" methods of execution that were unconstitutional. In Gregg v. Georgia, the court held that a punishment violates the Eighth Amendment if it involves "the unnecessary and wanton infliction of pain." In 2002 in Hope v. Pelzer, the court ruled that the Eighth Amendment was meant to protect the "basic concept … [of] the dignity of man" and ensuring the punishment is "exercised within the limits of civilized standards." Currently, there are five methods used to execute a prisoner in the United States. Lethal injection is most commonly used, and is legal in every state with the death penalty, but the electric chair, lethal gas, hanging, and the firing squad are all on the books in at least three states.

Lethal injection has become the common method under the assumption that it is the most humane and least painful way for the state to execute someone. Most states that use lethal injection employ a three drug cocktail including a barbiturate that acts as a sedative and painkiller, a neuromuscular blocking drug, which arrests nearly all of the body's muscles, and a lethal dose of potassium chloride to stop the heart.

Despite claims of humanity, this method seems to be a sanitized medicalized version of execution while likely causing a lot of pain. The drug often used as a sedative, sodium thiopental, is short-acting and can wear off before all the drugs are administered. This is particularly problematic because potassium chloride is very painful if a person isn't fully sedated. Additionally, once a neuromuscular blocking drug is administered, it's impossible for a person to cry out or express pain to alert anyone to the problem. This argument was made in Baze v. Rees in 2008, but the court upheld the constitutionality of lethal injection in a 7-2 opinion. In Glossip v. Gross, it went one step further in not only confirming the constitutionality of lethal injection, but writing in a 5-4 opinion that an inmate cannot challenge a method of execution without a viable alternative.

Many states have slowed their executions due to a lack of access to lethal injection drugs, but after 10 years without an execution, South Carolina has responded to this obstacle by passing a new law that will require death row inmates to choose between the electric chair and a firing squad if lethal injection drugs are unavailable. While seemingly a bizarre backwards decision, the new law is supported by statements made by Justice Sotomayor in a 2017 case upholding lethal injection. In Arthur v. Dunn in 2017, Justice Sotomayor argued that, "In addition to being near instant, death by shooting may also be comparatively painless. [...] And historically, the firing squad has yielded significantly fewer botched executions."

While lethal injection has been upheld as recently as 2019 in Bucklew v. Precythe, the constitutionality of the firing squad and the electric chair go back to 1879 and 1890, respectively, and has not been revisited since. Many anti-death penalty advocates agree with Justice Sotomayor's view of the firing squad and argue that lethal injection gives a false sense of medicalization and painlessness to a barbaric practice.

This might be the only time I say this, but I have to disagree with this view and Justice Sotomayor. Rather than quibbling over the most humane way for a state to kill one of its own citizens, I argue we must use every tool we have to end the death penalty even if that means delaying it one execution at a time. Lethal injection, like every other possible method of execution, is cruel and inhumane. They all will cause pain, they all will carry the possibility of mistakes, and they all force people to be executioners which often causes trauma to the people carrying out executions.

When we make an argument that the firing squad is more humane than lethal injection, we are supporting an alternative execution option. The lack of access to lethal injection drugs, and in some states the inability to find a doctor to perform the execution, has greatly slowed the number of executions carried out per year. South Carolina had not had an execution in 10 years due to problems with lethal injection as a method. Why would we make an argument that allows them to kill people by firing squad when they could be forced instead to let people live out their lives in prison without a viable method of execution?

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