Critical Race Theory

Link – Patriot Act/Time of Terror

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Link – Patriot Act/Time of Terror

Racial and ethnic minorities have historically suffered from government surveillance—Alien and Sedition Acts, WWII Internment, McCarthy, and Vietnam War prove

Kleiner 10 (Yevgenia S. associate chair of the Firm’s Women’s Affinity Group and representative of Stroock's Pro Bono Project “Racial Profiling in the Name of National Security: Protecting Minority Travlers' Civil Liberties in the Age of Terrorism” Boston College Third World Law Journal Volume 30 Issue 1 Article 5 11-1-2010 , cayla_)

Striking a Balance: The Government’s Post-9/11 War on Terror and its Efforts to Protect Civil Liberties The United States has a dark history pertaining to the treatment of racial and ethnic minorities in times of war and domestic conflict.61 As Wisconsin Democratic Senator Russell Feingold stated in his 2001 Congressional address criticizing the contents of the USA PATRIOT Act: There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of supposed Communist sympathizers during the McCarthy era, and the surveillance and harassment of anti-war protesters, including Dr. Martin Luther King Jr., during the Vietnam War.62 One explanation for these stains in our nation’s history is that in times of mass hysteria, the legislature and the courts tend to subordinate civil rights in their effort to keep the peace.63 Many scholars have argued that the federal government and TSA would do well to learn from the Korematsu decision and particularly Fred Korematsu’s petition for a writ of coram nobis.64 In his petition, Mr. Korematsu contended that the government knowingly concealed contradictory evidence as to its claim of military necessity for the internment of thousands of Japanese Americans.65 The U.S. District Court, relying largely on the finding by the Commission on Wartime Relocation and Internment of Citizens that “a grave injustice was done to American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them, were excluded, removed and detained by the United States during World War II,” granted Mr. Korematsu’s petition despite acknowledging that it would be impossible to predict whether the concealed evidence may have led the Supreme Court to have reached a different outcome in 1942.66 The USA PATRIOT Act of 2001 attracted serious criticism even before it was enacted into law.67 Some scholars argued against the adoption of the Act because of its double standard of ensuring due process for citizens but not for legal immigrants, a violation of equal protection principles embodied in the United States Constitution.68 Others, such as Senator Feingold, warned that the PATRIOT Act fell “short of meeting even basic constitutional standards of due process and fairness [because it] continues to allow the Attorney General to detain persons based on mere suspicion.”69 The passage of the USA PATRIOT Act signaled the beginning of an era of reduced judicial oversight of surveillance by the federal government.70 Although the Fourth Amendment protects against unreasonable searches and seizures and normally requires probable cause for government interference, no convenient provision exists to explicitly define the way the Amendment should be read in light of a potential terrorist threat.71 As a result, the USA PATRIOT Act granted the government wide-sweeping investigative powers by permitting it to obtain warrants without a demonstration of the truthfulness of its allegations.72 Furthermore, provisions under Section 505 of the USA PATRIOT Act granted the Department of Justice the freedom to use administrative subpoenas called National Security Letters to obtain records of individuals’ electronic communications without judicial oversight.73 This provision essentially means that National Security Letters enable federal officials to obtain information on anyone, because the Act does not require officials to demonstrate probable cause or a compelling need for access to the information.74 It was not until 2003 that Attorney General John Ashcroft finally admitted in a statement before the House Judiciary Committee that the USA PATRIOT Act had lowered the standard of proof for a warrant to something “lower than probable cause,” and that it had enabled federal officials to investigate citizens who were neither spies nor terrorists.75 Unfortunately, this admission did not lessen the burden on wrongfully targeted minorities who wish to assert their constitutional rights: in addition to proving a violation of their Fourth Amendment Due Process rights, individuals alleging a racial profiling claim against the government are required to show that the relevant government agency violated the Equal Protection Clause of the Fourteenth Amendment by complying with a “purposefully discriminatory policy.”

Link – Probation periods

The surveillance of probationers and parolees becomes cyclical

Alexander 10 (Michelle associate professor of law at Ohio State University, a civil rights advocate and a writer “The new Jim Crow: Mass incarceration in the age of colorblindness” New York: The New Press. 2010 , cayla_)
According to a Bureau of Justice Statistics study, about 30 percent of released prisoners in its sample were rearrested within six months of release.90 Within three years, nearly 68 percent were rearrested at least once for a new offense.91 Only a small minority are rearrested for violent crimes; the vast majority are rearrested for property offenses, drug offenses, and offenses against the public order.92 For those released on probation or parole, the risks are especially high. They are subject to regular surveillance and monitoring by the police and may be stopped and searched (with or without their consent) for any reason or no reason at all. As a result, they are far more likely to be arrested (again) than those whose behavior is not subject to constant scrutiny by law enforcement. Probationers and parolees are at increased risk of arrest because their lives are governed by additional rules that do not apply to everyone else. Myriad restrictions on their travel and behavior (such as a prohibition on associating with other felons), as well as various requirements of probation and parole (such as paying fines and meeting with probation officers), create opportunities for arrest. Violation of these special rules can land someone right back in prison. In fact, that is what happens a good deal of the time. The extraordinary increase in prison admissions due to parole and probation violations is due almost entirely to the War on Drugs. With respect to parole, in 1980, only 1 percent of all prison admissions were parole violators. Twenty years later, more than one third (35 percent) of prison admissions resulted from parole violations.93 To put the matter more starkly: About as many people were returned to prison for parole violations in 2000 as were admitted to prison in 1980 for all reasons.94 Of all parole violators returned to prison in 2000, only one-third were returned for a new conviction; two-thirds were returned for a technical violation such as missing appointments with a parole officer, failing to maintain employment, or failing a drug test.95 In this system of control, failing to cope well with one's exile status is treated like a crime. If you fail, after being released from prison with a criminal record—your personal badge of inferiority—to remain drug free, or if you fail to get a job against all the odds, or if you get depressed and miss an appointment with your parole officer (or if you cannot afford the bus fare to take you there), you can be sent right back to prison—where society apparently thinks millions of Americans belong. This disturbing phenomenon of people cycling in and out of prison, trapped by their secondclass status, has been described by Loic Wacquant as a "closed circuit of perpetual marginality."96 Hundreds of thousands of people are released from prison every year, only to find themselves locked out of the mainstream society and economy. Most ultimately return to prison, sometimes for the rest of their lives. Others are released again, only to find themselves in precisely the circumstances they occupied before, unable to cope with the stigma of the prison label and their permanent pariah status. Reducing the amount of time people spend behind bars—by eliminating harsh mandatory minimums—will alleviate some of the unnecessary suffering caused by this system, but it will not disturb the closed circuit. Those labeled felons will continue to cycle in and out of prison, subject to perpetual surveillance by the police, and unable to integrate into the mainstream society and economy. Unless the number of people who are labeled felons is dramatically reduced, and unless the laws and policies that keep ex-offenders marginalized from the mainstream society and economy are eliminated, the system will continue to create and maintain an enormous undercaste.

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