Volume 1, Issue 1 of The Law Journal

Gender, Race, and Justice
Law Journal
The Thurgood Marshall School of Law

Texas Southern University
Articles
THE ART OF PREJUDICE: EXAMINING THE MINORITY EFFECT INSIDE THE COURTROOM
Brittanie A. Holmes
PROVIDING LEGAL OPTIONS FOR THE BATTERED WOMEN WHO CHOOSE TO STAY:
A FEMINIST PERSPECTIVE
Tracy Christine Kennedy
A ROBUST CONCEPTION OF SPEECH:

HATE SPEECH AND THE FIRST AMENDMENT
Preston D. Mitchum
A BRIEF LOOK AT THE CONSTITUTIONALITY OF

SEXUALL Y ORIENTED BUSINESSES IN TEXAS
Robert S. Morales
PADILLA v. KENTUCKY: KEEPING UP WITH SOCIETAL CHANGES-

U.S . IMMIGRATION LAW PROPOSALS FOR LEGAL PROFESSIONALS IN AN EFFORT
TO AVOID LEGAL MALPRACTICE BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL
Nelda V. Trevino
WOMEN, POSTPARTUM DEPRESSION , AND CAPITAL PUNISHMENT

Onikki T. Walker
Volume 1 2011 Issue 1

ACKNOWLEDGEMENTS
The Thurgood Marshall Gender, Race, & Justice Law Journal thanks
Professor Rebecca Stewart, Professor Danny Norris, Professor
Darnell Weeden, and Dean Dannye Holley.
Gender, Race, and Justice
Law Journal
Volume 1 2011 Issue 1
Published Annually by Students of the

Thurgood Marshall School of Law
Houston, Texas 77004
Annual Subscription $10
The Journal collects manuscripts year round via email to

review materials worth publishing. Views expressed in the Journal are
solely of the author.
Citations conform to A Uniform System of Citation (19th ed.

2010), copyright by the Columbia Law Review, Harvard Law Review,
the University of Pennsylvania Law Review, and the Yale Law
Journal.
Please refer to http://www.tsulawjournal.org for more

information regarding subscriptions or submitting manuscripts for
publication.
Copyright © 2011 TMSL Gender, Race, and Justice Law Journal
Cite As: 1 T. Marshall L.J. Gender, Race & Just. 1

THURGOOD MARSHALL SCHOOL OF LAW
Officers of General Administration
2010 – 2011
Dr. John M. Rudley, B.B.A., Ed.M., Ed.D

President of the University
Sunny E. Ohia, B.Sc., M.Sc., Ph.D
Provost & Vice President of Academic Affairs
James M. Douglas, B.A., J.D., J.S.M.
Executive Vice President
Wendy H. Adair, B.A., M.B.A.
Vice President for University Advancement
Jim C. McShan, CPA
Vice President for Finance/Chief Financial Officer
Obidike Kamau, B.S., M.S.L.S., Ph.D.
Director of Libraries
Willie Marshall, B.A., Ph.D.
Vice President for Student Services and Dean of Students
Andrew C. Hughey, J.D.
General Counsel
Marilynn Square, B.A.
University Registrar
Thurgood Marshall School of Law Administration
Dannye Holley, B.A., J.D., Dean, School of Law

L. Darnell Weeden, B.A., M.A., J.D., Associate Dean & Professor
Gabriel Aitsebaomo, B.B.A., J.D., L.L.M., Associate Dean & Professor
Virgie Lemond Mouton, B.S.Ed., M.S.Ed., J.D., Assistant Dean of Student Affairs
Edward Renè, B.A., M.S. Ed., Assistant Dean of Admissions
Shibu Mathews, B.B.A., M.S., Assistant Dean for Administrative Services
Patricia Garrison, B.B.A., J.D., Assistant Dean for Academic Support
Donna Davis-Gregory, J.D., Assistant Dean for Career Services
Prudence Smith, B.A., J.D., Assistant Dean for External Affairs
Leonard Spearman, B.A., J.D., Director, Government Law Center
Lydia Johnson, B.A., J.D., Director, Legal Clinic
DeCarlous Spearman, B.S., J.D., Director, Law Library
Charlotte Washington, B.A., B.S., M.A., Director of Communications
Kris Krishna, J.D., Assistant Instructor for Academic Support
Paul Stein, B.S., Manager of Technology Services
Edith Green, B.B.A., Office Manager
Trudy Green, B.A., M.A., Registrar
Thurgood Marsall
Gender, Race, & Justice Law Journal
"Injustice anywhere is a threat to justice everywhere."

Martin Luther King, Jr.
VOLUME I 2011 ISSUE I
EXECUTIVE BOARD
Azuwuike Okorafor Jay Johnson

Editor in Chief Executive Editor
Crystal Graham Erika Glenn

Circulation Editor Review Editor
Cassandra Romar
Marketing Editor
ASSOCIATE EDITORS
Kayla Timmons Audia Moses
Associate Review Editor Associate Review Editor
Aleece McKnight Julie Wenah

Associate Circulation Editor Associate Marketing Editor
STAFF
Iyanna Grissom Ryan Kampmeyer
Yejide Bullock Camille Callender
Sharde Marks Paula Martinez
Colleen Lowry Christina Coffman
Jerome Kelly Laura Fernandez
Tracy Petite Tiffany Little
Elizabeth Zenon
STUDENT ADVISORS
Luis Salguero Trevin Franklin
David Ortez
FACULTY ADVISOR
Danyahel Norris
Thurgood Marsall
Gender, Race, & Justice Law Journal
VOLUME I 2011 ISSUE I
Table of Contents
ARTICLES
THE ART OF PREJUDICE: EXAMINING THE MINORITY EFFECT INSIDE

THE COURTROOM
Brittanie A. Holmes……………………………………….. 1
PROVIDING LEGAL OPTIONS FOR THE BATTERED WOMEN WHO

CHOOSE TO STAY: A FEMINIST PERSPECTIVE
Tracy Christine Kennedy………………………………….. 27
A ROBUST CONCEPTION OF SPEECH:

HATE SPEECH AND THE FIRST AMENDMENT
Preston D. Mitchum ……………………………………... 51

SEXUALLY ORIENTED BUSINESSES IN TEXAS
Robert S. Morales…………………………………………. 75
PADILLA v. KENTUCKY: KEEPING UP WITH SOCIETAL CHANGES –

U.S. IMMIGRATION LAW PROPOSALS FOR LEGAL PROFESSIONALS IN
AN EFFORT TO AVOID LEGAL MALPRACTICE BECAUSE OF
INEFFECTIVE ASSISTANCE OF COUNSEL
Nelda V. Trevino…………………………………………… 103
WOMEN, POSTPARTUM DEPRESSION, AND CAPITAL PUNISHMENT

Onikki T. Walker…………………………………………… 141
1
THE ART OF PREJUDICE: EXAMINING THE MINORITY

EFFECT INSIDE THE COURTROOM
BRITTANIE A. HOLMES
I. INTRODUCTION
“As American society has matured, blatant forms of racism

have increasingly been replaced by newer, more elusive, but equally
injurious forms of derision.”1 Rule 403 of the Federal Rules of
Evidence states in part that “evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice…or misleading the jury…”2 When inside of a courtroom,
parties to a case become the minority to a controlled majority, known
as the jury, who hold people’s fate in their hands. People’s names
are often tarnished by the attacks of their character on irrelevant
matters, which may be targeted based on their ethnic backgrounds,
religious beliefs, and even legal citizenship. Also, dangers of unfair
prejudice can arise if evidence demonstrates immoral character or
unpopular associations that could arouse juror antagonism,
overemphasizes negative connotations and incites a jury's
vindictiveness, invites unwarranted conclusions generating a risk of
fact-finding mistake, or unreasonably appeals to a jury's emotions or
prejudices.3 Although shocking to some, the utilization and
exploitation of bigotry in the name of “justice” is alive and well.
1
Elizabeth L. Earle, Banishing the Thirteenth Juror: An Approach to the
Identification of Prosecutorial Racism, 92 COLUM. L. REV. 1212, 1222 (1992).
2
FED. R. EVID. 403.
3
D. Craig Lewis, Proof and Prejudice: A Constitutional Challenge to the Treatment
of Prejudicial Evidence in Federal Criminal Cases, 64 WASH. L. REV. 289, 322
(1989).
2
A. Summary of Recent Case Law
In the 2010 decision of TXI Transp. Co. Inc. v. Hughes,4 the

Supreme Court of Texas had the task of determining whether the
admission of evidence regarding the illegal immigrant status of one of
the parties to the case was harmful error by the lower court.5 The
case consisted of a collision where several members of the Hughes
family died after their vehicle collided with an eighteen-wheel tractor-
trailer driven by Ricardo Rodriguez.6 At the time, Rodriguez was
employed as the driver for TXI Transportation Company (“TXI”).7
Surviving members of the Hughes family sued Rodriguez and TXI.8
During the trial, TXI objected to evidence concerning
Rodriguez’s illegal immigrant status based on grounds of relevance
and prejudice.9 The trial court overruled the objection. As a result,
“the jury learned Rodriguez had previously been deported and had
made several misrepresentations regarding his immigration status to
obtain his Texas commercial driver’s license and his employment
with TXI.”10 Subsequently, the jury decided in favor of the Hughes
family finding that the negligence of Rodriguez and TXI was the
proximate cause of the accident, and awarded compensatory and
exemplary damages.11 The court of appeals set aside the award for
exemplary damages, but affirmed the judgment.12
On appeal, TXI argued that it was error to admit evidence of
Rodriguez’s illegal immigrant status because it was irrelevant to the
case and was impermissibly used to agitate the jury and impeach
4
TXI Transp. Co. v. Hughes, 306 S.W.3d 230 (Tex. 2010).
5
TXI at 233.
6
Id. at 233-34.
7
Id. at 234.
8
Id.
9
Id.
10
Id.
11
Id.
12
Id. at 234.
3
Rodriguez’s credibility.13 However, the Hugheses argued that

Rodriguez’s false representations were relevant to claims of negligent
hiring and negligent entrustment.14
The Supreme Court of Texas ruled that Rodriguez’s
immigration status was not the cause of the collision and not relevant
to the negligent entrustment or hiring claims.15 The Court reasoned
that Rodriguez’s statements about his immigration status were not
admissible because it was clearly a collateral matter and inadmissible
under Texas Rule of Evidence 608(b).16 The rules state that “specific
instances of the conduct of a witness, for the purpose of attacking . . .
the witness’s credibility . . . may not be inquired into on cross-
examination of the witness nor proved by extrinsic evidence.”17 In
regards to the harm of the erroneous admission, TXI argued “that the
repeated references to Rodriguez’s immigration problems and alleged
misrepresentations were inflammatory and deliberately calculated to
cause the jury to disbelieve Rodriguez.”18
The Supreme Court of Texas concluded that Hughes
intentionally brought attention to Rodriguez’s illegal immigration
status.19 The Court stated, “Such appeals to racial and ethnic
prejudices, whether ‘explicit and brazen’ or ‘veiled and subtle,’
cannot be tolerated because they undermine the very basis of our
judicial process.”20 The Court held that the trial court erred by
admitting the evidence.21 The error was harmful because its prejudice
was not outweighed by any probative value and fostered the
13
Id. at 240.
14
Id.
15
TXI Transp. Co., 306 S.W.3d at 241.
16
Id. at 241-42.
17
See id. at 242; TEX. R. EVID. 608(b).
18
TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 243 (Tex. 2010).
19
Id. at 245.
20
Id. (quoting Tex. Employers’ Ins. Ass’n v. Guerrero, 800 S.W.2d 859, 864 (Tex.
App.-San Antonio 1990, writ denied).
21
TXI Transp. Co., 306 S.W.3d at 245.
4
impression that TXI should be held liable because it hired Rodriguez

as an illegal immigrant.22 The court of appeals judgment was
reversed and the case was remanded to the trial court for a new trial.23
In another 2010 decision, Salas v. Hi-Tech Erectors,24 the
Supreme Court of Washington determined whether the trial court
abused its discretion by admitting evidence of Alex Salas’
immigration status when he sought damages for lost income.25 Salas
entered the United States in 1989 with a visa, but the visa expired in
1994 and his application for citizenship was never processed.26 Salas
was injured while working at a construction site when he slipped from
a ladder erected by Hi-Tech.27 He sued Hi-Tech for negligence.28
At trial, evidence of Salas’ undocumented immigrant status
was admitted.29 The trial court recognized that some jurors would
probably be distracted by the immigration issue, thereby developing a
bad opinion of Salas.30 Nevertheless, the court reasoned that Salases
immigration status was relevant because his seeking lost future wages
called into question of what type of currency the labor would be
valued.31
The Supreme Court of Washington disagreed with the lower
courts, stating, “In light of the low probative value of immigration
status with regard to lost future earnings, the risk of unfair prejudice
brought by the admission of [Salas’] immigration status is too
22
See id.; TEX. R. EVID. 403.
23
Id.
24
Salas v. Hi-Tech Erectors, 230 P.3d 583 (Wash. 2010).
25
Id. at 585.
26
Id. at 584.
27
Id.
28
Id.
29
Id. at 585.
30
Id. at 584.
31
Salas, 230 P.3d at 585.
5
great.”32 The court held that with regard to Salases lost future
earnings, the probative value of his undocumented status was
substantially outweighed by the danger of unfair prejudice.33
Therefore, the trial court’s decision to admit the evidence was an
abuse of discretion and may have had a harmful effect on the jury.34
Salas was granted a new trial.35
B. Statement of Significance
The recent decisions in TXI Transp. Co. Inc. v. Hughes and

Salas v. Hi-Tech Erectors are just a glance into the many cases where
a person’s character is questioned based on seemingly irrelevant and
prejudicial evidence. The Courts examined previous case law and
sought to establish the wrongful nature of parties calculatingly
addressing immigration status, even though it had no significance to
the cause of action.
The Supreme Court of Texas determined that references to
Rodriguez’s immigration status were a ploy to distract the jury from
the primary nature of the case.36 The Supreme Court of Washington
concluded that references to Salas’ undocumented citizenship status
had a prejudicial and harmful effect on the case.37 These cases
illustrate how mentions of collateral matters based on a person’s
ethnicity and citizenship can negatively influence a case. These cases
further illustrate that those strategies based on bigotry cannot be
tolerated in our judicial system.
C. Article Overview
The purpose of this article is to examine how the courts

address the issue of minority prejudices from the controlling majority.
32
Id. at 586-87.
33
Id. at 587.
34
Id.
35
Id.
36
37
Salas v. Hi-Tech Erectors, 230 P.3d 583, 587 (Wash. 2010).
6
This research is inspired by recent state court decisions which focused

on the erroneous admissions of collateral evidence regarding the
defendant’s immigration status. This research will examine and
analyze both state and federal systems along with case law that
focuses on minority group discriminations in regard to race, religion,
and in particular legal residency and citizenship. Moreover, this
article will be supported by case law and legal theories for the
purposes of providing an adequate analysis of the constitutionality of
a court’s requirement to ensure no one’s rights are violated when they
are entitled to have their trial not outweighed by prejudicial bigotry.
Part two provides a historical abstract of a person’s rights
under the judicial system. The summary presents a historical view of
an individual’s protection in the law even when answering to the
court for matters not in the realm of the primary issue of a case. The
summary will evaluate the rules of evidence and the cases that have
helped to further establish its meaning over the years.
Part three provides critical analysis, examining the threshold
between relevant and collateral matters and distinctions of the state
and federal court’s conduct regarding prohibited and permitted
discretions. It will also provide an analysis of the rulings. The
analysis revisits the decisions in TXI and Salas and further examines
the prejudicial impact of the admitted evidence. Lastly, the analysis
will focus on the Due Process element surrounding these types of
cases and the significant impact of negative connotations.
Part four will provide a summary of all the main points in this
article. In addition, this section will offer recommendations or
suggestions as they may relate to the analysis.
II. BACKGROUND
Prejudicial issues have surrounded this country since the

beginning of time. As the decades pass and times change, eyes are
opened to the various realms of cultures. Judicial control regarding
the use of potentially prejudicial evidence has been in existence for
over three hundred years.38 Even in the 19th century, courts were
forced to address the sensitive issue of “color” being mentioned
inside the courtroom. In the 1889 case of Moss v. Sanger, a Texas
38
D. Craig Lewis, Proof and Prejudice: A Constitutional Challenge to the
Treatment of Prejudicial Evidence in Federal Criminal Cases, 64 WASH. L. REV.
289, 321 (1989).
7
court declared, “Cases ought to be tried in a court of justice upon the

facts proved; and whether a party be Jew or gentile, white or black, is
a matter of indifference.”39 During the last one hundred years, Texas
appellate courts have consistently condemned jury arguments based
on grounds of race, ethnicity, religion, and national origin.40 The
vanishing of those tactics in the last twenty-five years and the scarcity
of such arguments in recent years indicates that society considers
them utterly beyond the pale.41 However, courts are not always
definitive when prejudicial evidence based on someone’s ethnicity or
personal lifestyle is introduced.
The United States Supreme Court has acknowledged that the
exclusion of character evidence, based on its potential to prejudice the
person about whom it is being admitted, conflicts with the general
doctrine that a jury should reach an independent judgment based on
the merits of the case presented to it.42 In addition, federal courts,
such as the Ninth Circuit Court of Appeals, have acknowledged that
the constitutionally protected interest at stake consists of the jury
deciding a case based on its evidence, cross examination, and
assistance of counsel.43
Before the Federal Rules of Evidence were enacted in 1975,
comprehensive evidence codes existed in only a handful of
jurisdictions.44 Controversy arose after the rules went into effect
because of the questionable approach to the interpretation of the
rules.45 The rules provide the federal court system with uniformity in
deciding the admissibility of evidence and act as a model code system
39
Moss v. Sanger, 12 S.W. 619, 620 (Tex. 1889).
40
Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d 859, 866 (Tex. App. San
Antonio 1990).
41
Id.
42
Michelson v. United States, 335 U.S. 469, 476 (1948).
43
See e.g., Thompson v. Borg, 74 F.3d 1571, 1574 (9th Cir. 1996); Dickson v.
Sullivan, 849 F.2d 403 (9th Cir. 1988).
44
Ronald L. Carlson et al., Evidence in the Nineties, 21-23 (3d ed. 1991).
45
Edward J. Imwinkelried, Moving Beyond “Top Down” Grand Theories of
Statutory Construction: A “Bottom Up” Interpretive Approach To The Federal
Rules of Evidence, 75 OR. L. REV. 389, 390 (1996).
8
on which the majority of the states have designed their individual

laws of evidence.46 However, instead of always following the precise
language of a rule, courts have often based their interpretations on
legislative history, common law, and evidentiary policies.47
Rule 403 is a general rule applicable to all forms of evidence,

which authorizes the exclusion of evidence only when unfair
prejudice substantially outweighs the probative value of the
potentially admissible evidence.48 The rule requires the court to
weigh the probative value of evidence against factors such as: (1) the
danger of the evidence causing undue prejudice to the party seeking
its exclusion; (2) the danger of the evidence confusing the jury as to
the issues of the case; (3) the danger of the evidence generally
misleading the jury; or (4) the danger of the presentation of the
evidence causing an undue delay or waste of time.49 This rule is
fundamental in the rules of evidence and is strongly supported by case
law as further discussed in the analysis section of this article. Its
purpose is to prevent a jury from making inaccurate judgments based
on emotion and to ensure an efficient, orderly and fair process of
trial.50
III. ANALYSIS
A. The Threshold to Admit Relevant Evidence v. Collateral Matters
Many State and Federal Courts have been torn on how to

admit, although seemingly prejudicial, matters of relevance in a case.
Evidence is relevant and necessary if its purpose for admission
pertains to the consequence of the action and makes the existence of
46
FED. R. EVID., judicial app.
47
See Werner v. Upjohn Co., 629 F.2d 848, 856 (4th Cir.), cert. denied, 449 U.S.
1080 (1980).
48
FED. R. EVID. 403.
49
See, supra note 46.
50
See, supra note 46, advisory committee’s note.
9
the identified fact more probable.51 “When evidence is likely to

stimulate an emotional response rather than a rational decision, a
danger of unfair prejudice exists.”52 In instances where there is doubt
of a prejudicial nature, partiality should be shown in favor of the
targeted party and evidence exclusion.53
The test to determine whether a matter is collateral depends on
whether the cross-examining party would be entitled to prove it as a
part of their case.54 “Two types of evidence pass this test: (1) facts
relevant to a particular issue; and (2) facts which discredit a witness
by pointing out the witness’ bias, corruption, or lack of
competency.”55 However, there is an exception to the general rule
that a party is not entitled to impeach a witness on a collateral
matter.56 If a witness leaves a false impression concerning a matter
relating to their argument, the opposing party is permitted to correct
that false impression.57 “If a fact may be shown in evidence for any
purpose independent of contradiction, it is not collateral.”58
Racial remarks fall into three categories: racial slurs, non-
derogatory comments, and neutral comments.59 Racial slurs
universally are considered prejudicial, thereby impermissible, and
non-derogatory comments, which refer to a defendant's, witness', or
victim's race for no justifiable reason, also have been subject to being
51
State v. Dennison, 801 P.2d 193, 203 (Wash. 1990).
52
State v. Powell, 893 P.2d 615, 627 (Wash. 1995).
53
Id.
54
See e.g., TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241-42 (Tex. 2010); Bates
v. State, 587 S.W.2d 121, 133 (Tex. Crim. App. 1979); Frechin v. Thornton, 326
S.W.2d 122, 126 (Mo. 1959).
55
Foster v. State, 869 So.2d 743, 745 (Fla.App. 2004) (quoting Lawson v. State, 651
So.2d 713, 715 (Fla. 2d DCA 1995).
56
Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990).
57
Id.
58
Frechin v. Thornton, 326 S.W.2d 122, 126 (Mo. 1959).
59
Harvard Law Review Association, VI. Racial Bias and Prosecutorial Conduct at
Trial, 101 HARV. L. REV. 1588, 1590 (1988).
10
struck down by courts.60 “A prosecutor makes a non-derogatory

comment when, for example, solely to emphasize the race of the
parties at trial, she refers repeatedly to the arresting officers as white
and to the defendant as black.”61
In contrast, neutral comments have been permitted by most
courts because objective, justifiable reasons for referring to race
underlie them and they have a probative value that outweighs any
prejudicial impact.62 A permissible, neutral comment is that which
involves limited references to race made solely for purposes of
identification, such as the height and weight of a defendant or
victim.63
In an attempt to justify the admission of questionable
prejudicial evidence, courts have employed the “harmless error
analysis.” Although erroneous evidentiary rulings may be insufficient
to justify reversal, courts must still consider whether the cumulative
effect is harmless.64 The erroneous admission of evidence is harmless
unless the error probably caused the rendition of an improper
judgment.65 In Chapman v. California, the Supreme Court articulated
a harmless constitutional error if the reviewing court can say beyond a
reasonable doubt that the disputed evidence did not contribute to the
court’s verdict or decision.66 The Chapman Court observed that
“there are some constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error.”67 The appropriate
test for harmlessness is whether the Court can say with fair assurance,
after stripping the erroneous evidence from the whole, that the
60
Harvard, supra note 57, at 1590.
61
62
Harvard, supra note 57, at 1590-91.
63
64
Malek v. Federal Ins. Co., 994 F.2d 49, 55 (2nd Cir. 1993).
65
Id.
66
Chapman v. California, 386 U.S. 18, 23-24 (1967).
67
Id. at 23.
11
remaining evidence was independently sufficient to support the

verdict and the jury was not substantially influenced by the error.68
Texas courts have usually referred to improper arguments as
“curable” or “incurable.” 69 A jury argument is “curable” when the
harmful effect of the argument can be eliminated by a trial judge's
instruction to the jury to disregard the statement(s) they heard,
making error “cured” and rendered harmless by the instruction.70
Conversely, an argument may be so provocative that its harmfulness
could not be eliminated by an instruction to the jury to disregard it
rendering the prejudicial nature to be “incurable.”71 The United
States Supreme Court once held, “[I]f one cannot say, with fair
assurance . . . that the judgment was not substantially swayed by the
error, it is impossible to conclude that substantial rights were not
affected.”72
B. The Standard of Fairness
1. The Prejudicial Impact Standard: A Look into the Interpretation of

Rule 403
The goal of Rule 40373 is to eliminate the obvious occurrence

in which a jury will decide a case based on personal emotion rather
than be motivated by the credible force of the probative evidence.74
Subsequently, courts and scholars have long believed that certain
types of evidence can have profound reliability-threatening impacts
on the outcome of trials.75 For example, in the 1993 decision of
68
State v. Guthrie, 461 S.E.2d 163, 190 (W. Va. 1995).
69
Antonio 1990).
70
Id.
71
Id.
72
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
73
FED. R. EVID. 403.
74
State v. Guthrie, 461 S.E.2d 163 (W. Va. 1995).
12
United States v. Ham,76 the Fourth Circuit court acknowledged, “[w]e

are especially sensitive to prejudice in a trial where defendants are
members of an unpopular religion.”77 In order to uphold justice in the
courts, a trial judge must not permit a jury's finding to be decided on
account of racial or gender bias and an unpopular political belief or
opinion.78 “If rule 403 is ever to have a significant and effective role
in our trial courts, it must be used to bar the admission of this highly
prejudicial evidence.”79 Thus, in the performance of judicial duties, a
judge is prohibited from manifesting bias or prejudice based on race,
sex, religion or national origin against parties, counsel or others by
words or conduct and shall not knowingly permit staff, court officials
and others subject to the judge's direction and control to do so.80
Evident in the cases mentioned throughout this article, the
solicitation of judgment based on a person’s “status” implies an
immutable characteristic that goes beyond the relevant issues of a
case.81 Even in instances where immigration status may have
marginal probative value in regards to credibility, many courts have
held that such evidence is properly excluded for undue prejudice
under Rule 403.82 In the inspired, recent decision of TXI Transp. Co.
Inc. v. Hughes, the Court agreed that the Hughes’s repeated inclusion
75
289, 321 (1989).
76
United States v. Ham, 998 F.2d 1247 (4th Cir. 1993).
77
Id. at 1252-53.
78
Guthrie, 461 S.E.2d at 189.
79
Id.
80
Antonio 1990) (emphasis added).
81
Earle, supra note 1, at 1216.
82
See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 244 (Tex. 2010); Clemente v.
State, 707 P.2d 818, 829 (Cal. 1985) (holding immigration status, "even if
marginally relevant was highly prejudicial"); Diaz v. State, 743 A.2d 1166,
1184(Del. 1999) (finding that even if a witness's concern about immigration status
was relevant to impeach her, the court still must "determine if the probative value of
that immigration status . . . is outweighed by any unfair prejudice").
13
into the case of Rodriguez's nationality, ethnicity, and illegal-

immigrant status was clearly calculated to inflame the jury against
him.83 This type of case goes beyond what is considered harmless
and fair. When a person’s ethnicity, nationality, religious beliefs, or
even political beliefs, are prejudicially brought to the forefront for the
motive of exciting emotion in the courtroom, there is a serious
problem. Although Rule 403 is designed to eliminate this type of
situation, the reality is that once a prejudicial remark is spoken, the
remark stays embedded into the minds of everyone in the courtroom,
especially the jury. Subsequently, the person targeted by the
irrelevant prejudicial statements immediately becomes a disliked
minority on matters not even in issue.84
Looking back at Salas v. Hi-Tech Erectors, the trial court’s
decision was overturned and the Court held that with regard to Salas’
lost future earnings, the probative value of his undocumented status
was substantially outweighed by the danger of unfair prejudice.85
Courts in many jurisdictions have also held that illegal immigrant
status is irrelevant to liability in tort, while in certain cases the courts
have provided divided systems of trial or limiting instructions,
allowing the introduction of such evidence to calculate lost future
earnings once liability has been established.86 This examination
shows that Rule 403 vests broad discretion in trial courts to exclude
prejudicial evidence. However, lawyers have no right to intentionally
open up a realm of prejudicial statements and demoralize the ethnic
harmony of society simply to win a case.87
83
84
See Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d 859, 863 (Tex. App.
San Antonio 1990) (“While most improper jury arguments can be cured by
objection and instruction to disregard, appeals to racial prejudice are one of the
exceptional kinds of argument that are considered incurable”).
85
Salas v. Hi-Tech Erectors, 230 P.3d 583, 586-87 (Wash. 2010).
86
See, e.g., Hagl v. Jacob Stern & Sons, Inc., 396 F. Supp. 779 (E.D.Pa. l979);
Melendres v. Soales, 306 N.W.2d 399 (Mich. Ct. App. 1981); Gonzalez v. City of
Franklin, 403 N.W.2d 747 (Wis. 1987).
87
Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d at 865.
14
2. State and Federal Court Assessments
The denial of due process results in the failure to observe that

fundamental fairness essential to the theory of justice.88 Federal
courts, along with State jurisdictions, have stated that where race,
gender, or religion is a relevant factor in the case, its admission is not
prohibited unless the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice.89 However, there are
also instances where irrelevant prejudicial statements are admitted. In
determining whether a statement made or evidence introduced
represents an occasion of misconduct, courts look at the statement or
evidence in isolation and decide if it is improper.90 If it is improper,
courts evaluate whether the improper statement or evidence rendered
the trial unfair.91 Some factors relevant to the evaluation include the
extent to which the statement or evidence was invited, whether the
statement or evidence was isolated or extensive, and whether the
statement or evidence was deliberately placed before the jury to divert
attention to irrelevant and improper matters.92 Although the
prohibition on appeals to racial and ethnic prejudice is universal, the
precise standard varies from jurisdiction to jurisdiction.
Many jurisdictions have held that a person’s immigration
status is not admissible to attack their character for truthfulness.93 In
addition, there is authority to support the notion that matters such as
race, religion, and nationality should be kept from a jury's
88
Lisenba v. California, 314 U.S. 219, 236 (1941).
89
See Olden v. Kentucky, 488 U.S. 227 (1988); State v. Guthrie, 461 S.E.2d 163
(W. Va. 1995); State v. Crockett, 265 S.E.2d 268 (W.Va. 1979).
90
Guthrie, 461 S.E.2d at 183.
91
Id.
92
See generally Darden v. Wainwright, 477 U.S. 168 (1986) (holding that a trial
counsel’s performance must fall below an objective standard of reasonableness in
order to be deprived of effective assistance of counsel); State v. Sugg, 456 S.E.2d
469 (W. Va. 1995) (prosecutorial comments must be so egregious and prejudicial
that would manifest injustice from the remarks).
93
See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242 (Tex. 2010); State v.
Avendano-Lopez, 904 P.2d 324, 332 (Wash. Ct. App. 1995).
15
consideration.94 For example, in the 1946 case of Peck v. Bez,

counsel for the plaintiff made reference to the defendant’s Muslim
religion and Hungarian nationality.95 The Supreme Court of Appeals
of West Virginia held that those matters were not pertinent or relevant
to the primary issue.96 The Court recognized that the lower court had
charged the jury to disregard the prejudicial questions and
statements.97 However, it was made known that those antics have no
place in the court and counsel should not engage in such conduct
because it violates the decorum which should surround a trial by
jury.98
Similarly, the State of Washington has addressed the
substantial likelihood of courtroom misconduct affecting a jury
verdict and thus denying the right to a fair trial.99 In the 1995 case of
State v. Avendano-Lopez, the Court of Appeals of Washington
reviewed the lower court’s decision in denying a mistrial after the
defendant was questioned about his immigration status. 100 The
Court, quoting an earlier case named State v. Torres, said, “We do not
condone any reference to a person’s race which is intended to slur or
to disparage either the person or the race. . . . [the references’] effect
may have been to impugn the standing of the defendants before the
jury to intimate that the defendants would be more likely than those
of other races to commit the crime charged. Such an inference is
improper and prejudicial.”101 Although the Court agreed that the
questions regarding Avendano-Lopez’s ethnic heritage and
immigration status were improper and calculated to “incite the jury’s
passion and prejudice,”102 the Court affirmed the trial court’s denial
94
State v. Guthrie, 461 S.E.2d 163, 187 (W. Va. 1995).
95
Peck v. Bez, 40 S.E.2d 1, 9-10 (W. Va. 1946).
96
Id. at 10.
97
Id.
98
Id.
99
See State v. Avendano-Lopez, 904 P.2d 324, 328 (Wash. Ct. App. 1995).
100
Id. at 331.
101
Id. (quoting State v. Torres, 554 P.2d 1069, 1071-72 (Wash. Ct. App. 1976)).
102
Id. at 331-32.
16
of the motion for mistrial.103 The Court reasoned that the misconduct
likely did not affect the jury’s verdict because the objection to the
improper question was sustained and Avendano-Lopez was not
permitted to answer, the case against him was very strong, and the
jury was already aware of the defendant’s Hispanic background.104
Across the spectrum, race has been an especially risky subject.
Stemming from a 1977 conviction from the Fifth Circuit in the case
Russell v. Collins,105 defense lawyers for James Russell worked on
briefs for submission to the Texas courts, the lower federal courts,
and ultimately the United States Supreme Court.106 The attorneys
alleged that the county prosecutor in the capital murder trial had
injected the issue of race into the proceedings by asking an all-white
jury if they could imagine the fear of the victim being with the three
“black” suspects.107 “The comments from Russell's trial exemplify
two different types of remarks challenged in courts during this
century, the explicit and implicit references to color.”108 With no
standard of defining racism in the judicial system, no court agreed
with the defense counsel’s arguments and Russell was subsequently
executed by lethal injection.109
Conversely, the Ninth Circuit has noticed the negative effect
of racially biased statements as evident in the case of United States v.
Kallin.110 In Kallin, a witness, whose credibility was not in issue,
testified to the defendant’s dislike of “Mexicans” where the case was
regarding tax evasion.111 The Court recognized reversible error
103
Id. at 332.
104
Id. at 332-33.
105
Russell v. Collins, 944 F.2d 202 (5th Cir. 1991) cert. denied, 501 U.S. 1278
(1991).
106
107
108
109
Earle, supra note 1, at 1212-13.
110
United States v. Kallin, 50 F.3d 689, 696 (9th Cir. 1995).
111
Id.
17
because that portion of the witness’s testimony was not probative of

any matter at issue in the case and could only be used as a tactic to
prejudice the jury against Kallin.112 Quoting a 1986 case of United
States v. Ebens, the Court stated, “We need not know the racial
composition of the jury, for nearly all citizens find themselves
repelled by such blatantly racist remarks and resentful of the person
claimed to have uttered them.”113
Religious beliefs have also been used as a tactic to impeach
witnesses, even when religion has no relevance to the matter at issue.
Rule 610 in the Federal Rules of Evidence provides that “[e]vidence
of the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature
[his] credibility is impaired or enhanced.”114
The Second Circuit tackled the collateral matter of religion in
the 1982 case, Contemporary Mission Inc. v. Bonded Mailings Inc.115
In Contemporary Mission, the lower court’s refusal to permit
questioning of a witness' beliefs in the Roman Catholic Church, in a
breach of contract action, was affirmed because religion was a
“collateral, potentially confusing and prejudicial, issue which would
perforce have raised a ‘religious problem.’”116 The Second Circuit
reasoned that an “uncertain constitutional dimension,” such as
religion, was not appropriate to be addressed in a case regarding a
contract dispute.117
Similarly, in Malek v. Federal Ins. Co.,118 the Second Circuit
ruled that the apparent questioning from the defense counsel
concerning the opposing parties’ Hasidic Jewish beliefs was blatantly
prejudicial because the defense counsel attempted to compare the
112
Id. at 696 n.7.
113
Id. at 696 n.7 (quoting United States v. Ebens, 800 F.2d 1422, 1434 (6th Cir.
1986)).
114
FED. R. EVID. 610.
115
Contemporary Mission Inc. v. Bonded Mailings Inc., 671 F.2d 81 (2d Cir. 1982).
116
Id. at 84.
117
Id.
118
Malek v. Federal Ins. Co., 994 F.2d 49 (2d Cir. 1993).
18
witness’s character to his religious beliefs.119 The dissenting opinion

in Malek interpreted the questions regarding religious beliefs as a
means to show bias, which is permissible under Rule 610, because the
impeached witness’ religious affiliation was the same as the
plaintiff.120 The dissent contrasted the Contemporary Mission Inc. v.
Bonded Mailings Inc. decision in stating, “[T]he witness here was not
subject to ‘extensive cross-examination . . . on the genuineness of his
. . . [religious] affiliation . . . .’”121 However, the majority saw
enough evidence to think differently.
These cases, amongst others, exemplify how Courts
continuously tackle and are at times divided on the issue of calculated
bias between opposing parties. One can easily perceive how the
judicial system can be manipulated to instantly place a person as a
targeted minority inside the courtroom. Although courts have tried to
clean up and correct certain misconduct, the blatant manipulation has
seemed to still slip between the cracks over the years. “When a racial
or ethnic appeal is made, the dispute is no longer confined to the
litigants; there has been an attack on the social glue that helps bind
society together.”122 The manipulation not only goes against the
court, but it also goes against society and it makes no difference
whether the victimized party has shown harm.123
3. Court’s Analysis: Revisiting TXI Transp. Co. Inc. v. Hughes and

Salas v. Hi-Tech Erectors
Upon reviewing the trial court’s decision in TXI Transp. Co.

Inc. v. Hughes, the Supreme Court of Texas noticed that when
Rodriguez was called as a witness, the first questions directed to him
119
Id. at 54.
120
Id. at 60 (McLaughlin, J., dissenting).
121
Id. at 59.
122
Antonio 1990).
123
Id.
19
concerned his immigration status.124 Also, during the trial, jurors

heard nearly forty references to Rodriguez’s status, including thirty-
five as an “illegal immigrant” and seven concerning a prior
deportation.125 There were also thirty-two references to Rodriguez's
misconduct in using a false Social Security number, sixteen
references to Rodriguez's “invalid” or “fraudulently obtained”
commercial driver's license, and seven references that Rodriguez was
a “liar.”126
In delivering the opinion of the Court, Justice David Medina
acknowledged TXI’s assertion that Hughes’s continuous reference to
Rodriguez’s citizenship was simply a ploy to disguise their real claim,
which was “that Rodriguez was negligent for driving without a right
to be in this country and that TXI was negligent for hiring an illegal
alien.”127 The Court held that the trial court erred by admitting the
prejudicial evidence impugning Rodriguez’s character on the basis of
his immigration status.128 The immigration information was not
relevant to the negligence claim against TXI.129 Justice Wainwright
concurred in part and dissented in part. He expressed concern
regarding the expert witness called by the Hugheses.130 That witness
concluded that Rodriguez caused the accident, although there were no
eye witnesses to back up the conclusion.131 In fact, all five of the
eyewitnesses, whom the expert failed to sufficiently address, testified
that they never saw Rodriguez’s gravel truck in the westbound
lane.132
124
125
Id.
126
Id.
127
Id. at 244.
128
Id. at 245.
129
Id. at 242.
130
Id. at 245 (Wainwright, J., dissenting).
131
Id. (Wainwright, J., dissenting).
132
Id. (Wainwright, J., dissenting).
20
The Court’s decision to reverse the trial court’s holding is

meritorious. Because immigration is a sensitive issue, the Court
acknowledged that there was a lack of respect and sincerity shown by
Hughes. The Court seemed to have sent a message regarding
intentional references to Rodriguez’s citizenship. In essence, such
prejudicial references to immigration status will not be tolerated. It
was obvious that the opposing party sought to distract the jury and
embed in their minds how being an “illegal immigrant” was a crime
in itself despite the primary issue at hand, which was whether
Rodriguez negligently caused the vehicle accident. Thus, the
Supreme Court rightfully concluded that Rodriguez was intentionally
and improperly discriminated against, which may have played a
major part in the trial court’s jury verdict. Undoubtedly, when jurors
continuously hear a negative statement, it will have an impact on their
decision. The negative connotation of the word “illegal” alone bears
weight, a topic discussed in Part C of this article.
In Salas v. Hi-Tech Erectors, Justice Mary Fairhurst delivered
the opinion of the court. Alex Salas sought to reverse the Court of
Appeals decision, in which evidence of his being an undocumented
immigrant was admitted by the trial court.133 In this case, as opposed
to TXI, admissibility of Salas' immigration status was conditioned on
his seeking lost future wages.134 However, Salas had been in the
United States since 1989, was working, purchased a home, and had
three children who were born in the United States.135
At the trial court, Salas relied primarily on a criminal case,
State v. Avendano-Lopez,136 to support his contention that any
discussion of nationality or immigration status is inherently
prejudicial.137 “The Avendano-Lopez court held that questions of
nationality and immigration status are irrelevant, appeal to a jury's
133
134
Id. at 585.
135
Id.
136
State v. Avendano-Lopez, 904 P.2d 324 (Wash. Ct. App. 1995).
137
Salas v. Hi-Tech Erectors, 177 P.3d 769, 772 (Wast. Ct. App. 2008), overruled
by Salas v. Hi-Tech Erectors, 230 P.3d 583 (Wash. 2010).
21
passions and prejudices, and are generally improper and inadmissible

in a court of justice.”138
What is puzzling is how the Court of Appeals of Washington
approached their decision in the case of Salas. Oddly, the Court of
Appeals cited to case law, which stood against Salas’ argument of
irrelevant prejudicial evidence, such as the New Hampshire Supreme
Court case of Rosa v. Partners in Progress, Inc.139 The Court in Rosa
held that evidence of a plaintiff's status may well be prejudicial, but
such proof is essential if an illegal alien wishes to pursue a claim for
lost earning capacity.140 The Court of Appeals also acknowledged
other courts that have been restrictive in admitting evidence on the
issue of immigrant status.141 However, their reason for finding no
abuse of discretion was based on Salas making “no attempt to
mitigate any potential prejudice caused by evidence of his
immigration status” and “the issue arose so late in the process and
relevant authority was not provided to the court.”142 The court
questionably favored a lack of evidentiary relevant authority and
legislative silence in their interpretation and reasoning. In other
words, the court turned its cheek to the core issue of unfair prejudice
towards Salas’ immigration status and based its decision on
completely different grounds.
The Supreme Court of Washington acknowledged other
states’ case law and recognized that the admission of a person’s
immigration status is prejudicial.143 For example, the Court cited the
Supreme Court of Wisconsin’s declaration in Gonzalez v. City of
Franklin that the admission of immigration status has “obvious
prejudicial effect.”144 In addition, the Salas Court reasoned that
138
Id.
139
Rosa v. Partners in Progress Inc., 868 A.2d 994, 1002 (N.H. 2005).
140
Id.
141
Salas v. Hi-Tech Erectors, 177 P.3d 769, 773 (Wast. Ct. App. 2008), overruled
by Salas v. Hi-Tech Erectors, 230 P.3d 583 (Wash. 2010).
142
Id. at 774.
143
144
Id. (quoting Gonzalez v. City of Franklin, 403 N.W.2d 747, 760 (Wis. 1987)).
22
“[I]ssues involving immigration can inspire passionate responses that

carry a significant danger of interfering with the fact finder's duty to
engage in reasoned deliberation. In light of the low probative value
of immigration status with regard to lost future earnings, the risk of
unfair prejudice brought about by the admission of a plaintiff's
immigration status is too great.”145 Therefore, although the
immigration status was relevant to the issue of lost future earnings,
the probative value of Salas’ undocumented status was substantially
outweighed by the danger of unfair prejudice.146
The Salas court’s decision to consider the “undocumented
immigrant” statements as prejudicial is understandable. Although
many courts have admitted statements regarding immigration for the
purpose of lost future wages,147 the Supreme Court of Washington
took a step back and analyzed the situation by a personal perspective.
The Court isolated the statements and correctly determined the
occasion of misconduct to be improper and unfair to Salas. Some
people may argue that the comments were “neutral” because
justifiable reasons for referring to Salas’ immigrant status underlie
them for the purpose of determining currency for the payment of lost
future wages. However, when the status remarks are repeatedly
made, the “obvious prejudicial effect” is triggered.
145
Salas, 230 P.3d at 586-87.
146
Id. at 587. Justice Jerry Alexander, in dissent, argued that the trial judge's
decision to admit evidence of Salas' immigration status was not manifestly
unreasonable. Id.
147
See e.g., Majlinger v. Cassino Contracting Corp., 802 N.Y.S.2d 56, 66 (App.
Div. 2005), aff'd sub nom., Balbuena v. IDR Realty LLC, 845 N.E.2d 1246, 1260
(N.Y. 2006); Barahona v. Trustees of Columbia Univ. in City of N.Y., 816
N.Y.S.2d 851, 852 (Sup. Ct. 2006); Rosa v. Partners in Progress, Inc., 868 A.2d
994, 1002 (N.H. 2005).
23
C. The Bigotry of the Controlling Majority
1. The Demise of Due Process: Clean Up What Is Messed Up
While Due Process does not confer a right to an error-free

trial, it does guarantee a fundamental right to a fair trial.148 “The aim
of the requirement of due process is not to exclude presumptively
false evidence, but to prevent fundamental unfairness in the use of
evidence whether true or false.”149 Even though a court may not
believe the prejudicial impact section of Rule 403 applies, Due
Process still requires that the court assess the risk of mistaken
evaluation.150
In addition, the Equal Protection Clause of the Fourteenth
Amendment is indicative of Congress’s aim to ensure a fair trial for
all. In the 1886 case of Yick Wo v. Hopkins, the Supreme Court
explained that the provisions in the United States Constitution are
universal to all persons within the territorial jurisdiction of the U.S.
without regard to any differences of race, color, or nationality.151
While the Due Process and Equal Protection Clauses of the
Fourteenth Amendment apply by their terms to states,152 the problem
is that all courts have not worked hard enough to enforce the law of
the land and most citizens do not take the time to learn case law or
find interest in the true meaning of the U.S. Constitution. Society is
continuously trapped in a box where people are not susceptive to
opening up their minds and learning about the various nationalities
and immigration, regardless of legal or illegal status. Furthermore,
the Fifth Amendment specifically states that no person shall be
“deprived of life, liberty, or property without due process of law.”153
148
State v. Guthrie, 194 W.Va. 657, 684 (1995).
149
Lisenba v. California, 314 U.S. 219, 236 (1941).
150
289, 350 (1989).
151
Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
152
U.S. CONST. amend. XIV, § 1.
153
U.S. CONST. amend. V.
24
This provision broadly refers to “person” and not just a citizen. The
key wording proves that even undocumented immigrants shall have
the same due process rights as any other person living within the U.S.
territory. The key wording further includes all races, genders, and
nationalities. However, the meaning and interpretation of the
provision are obviously not always a priority when it comes to the
intentional solicitation of a biased judgment in court. Thus, it is up
the state and federal courts to ensure that absolutely no person is
deprived of their due process rights. If someone is possibly convicted
or biased based on their ethnicity, religious beliefs, or nationality,
then the court has simply failed us all. No one should be purposely
subjected to unfair prejudicial evidence.
2. The Harm of Prejudice -Racially Based Admissions
If lower courts were not corrected on their decisions to allow

collateral prejudicial evidence, a precedent would be established
permitting calculated, subtle racial or ethnic arguments by litigants in
all types of cases so long as the arguments were properly dressed up
and disguised.154 The disguise of racial and ethnic arguments would
continuously destroy the integrity of the courts. All persons, no
matter their ethnicity, should feel free to litigate their cases before
juries anywhere “without facing state-of-the-art ethnic pleas in
closing argument”.155 “Such arguments are forbidden, and it matters
not whether counsel suggests -- depending upon the venue -- that the
jury reward or penalize a litigant for belonging or not belonging to a
racial or ethnic group.”156
One of the biggest problems today is the hidden prejudice of
simply hearing “illegal immigrant.” “Much of the discrimination
based on perceived foreignness is rooted in unarticulated notions of
what it is to be American.”157 The word “illegal” automatically sends
154
Antonio 1990).
155
Id.
156
Id.
157
Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, “Foreignness,” and
Racial Hierarchy in American Law, 76 OR. L. REV. 261, 336 (1997).
25
out a negative connotation, which in turn can cause an undocumented

immigrant to be prejudiced based on personal opinions toward
“illegal people.”
America's acceptance of foreigners today depends upon the
popular view of legal versus illegal immigrant status and the popular
view of which ethnic groups benefit American society and which
simply burden our economic and social structures.158 “Foreignness
discrimination is problematic because, as with the intersection of race
and gender, it does not fit neatly into the designated categories, but
falls within the cracks.”159 As a juror sits inside the courtroom,
hundreds of thoughts run through his or her mind. In today’s society,
where immigration is a hot topic, there are strong views regarding
undocumented immigrants. When jurors hear “illegal,” they can
easily think negatively about changes to society, including increased
taxes, unemployment, or political biases all because someone is
“illegal.” In turn, the focus ignorantly turns to “teaching that
immigrant a lesson” rather than focusing on the primary issue of a
case.
IV. CONCLUSION
Calculated prejudicial questions and statements based on race,

religion, nationality, or personal beliefs have no place in the court.
The court is obligated to see that the guarantee of a right to a fair trial
under our Constitution is honored. The right to a fair trial cannot be
guaranteed if there is intentional bigotry inside the courtroom. If the
court cannot determine with fair assurance that a verdict was not
influenced by the error, then there is unquestionable harm.
In order for Courts to crack down on the epidemic of blatant
racism inside the courtroom, measures must be taken. If someone
tends to disrespect the decorum of the court, they should be held in
contempt and be punished for their actions. Furthermore, the
solicitation of judgment based on a person’s “status” implies an
immutable characteristic that goes beyond the relevant issues of a
case. The court should also refrain from allowing the open use of the
158
Melinda Smith, Criminal Defense Attorneys and Noncitizen Clients:
Understanding Immigrants, Basic Immigration Law and How Recent Changes in
Those Laws May Effect Your Criminal Cases, 33 AKRON L. REV. 163, 169 (1999).
159
Saito, supra note 152, at 336.
26
word “illegal” when referring to an undocumented immigrant. It

brings about a negative connotation, which can quickly turn against a
party in court. Specific standards need to be set in place so no court
will have an excuse as to their interpretation of when intentional
prejudice has occurred. There needs to be unity when examining how
to properly address an issue when an occasion of misconduct in
regards to blatant racism has occurred. The determination of whether
a statement made or evidence introduced represents an occasion of
misconduct, should be looked at in isolation and decided if improper
and unfair. By isolating and thoroughly examining the specific
misconduct, the guarantee to the right of a fair trial will be upheld.
No person in our society should be subjected to prejudice inside the
courtroom. If our courts do not continuously work to correct the
issue, biased verdicts will continue and all confidence in our courts
will be lost.
27
PROVIDING LEGAL OPTIONS FOR THE BATTERED WOMEN WHO

CHOOSE TO STAY:
A FEMINIST PERSPECTIVE
Tracy Christine Kennedy*
“The legal system developed around the needs

of battered women has undoubtedly helped
hundreds of thousands of women and it is
certainly one crucial component for ensuring
that battered women are safe from abuse. But
what can the legal system do for a woman who
wants to remain with her abuser?”1
“If I only knew what I know now, I would
never have left him.”2
* J.D. Candidate, North Carolina Central University School of Law, 2011; B.A.,
Providence College, 2002. The author thanks her professors, Jennifer Brobst, J.D.,
L.L.M. and Amos Jones, J.D., for their insight, guidance and support in the
development of this article.
1
Leigh Goodmark, Law is the Answer? Do we Know that for Sure?: Questioning
the Efficacy of Legal Interventions for Battered Women, 23 ST. LOUIS U. PUB. L.
REV. 7, 8 (2004).
2
Rana Fuller, How to Effectively Advocate for Battered Women when Systems Fail,
33 WM. MITCHELL L. REV. 939, 940 (2007). (quoting an anonymous battered
woman).
28
I. INTRODUCTION
The decision to leave a batterer must remain with the battered
woman. Her autonomy and assessment of her relationship with her
batterer should be held in highest regard by the legal system. Further,
“the power to decide whether to stay or leave is particularly central to
establishing a battered woman’s autonomy. If the law denies women
the power to make that decision, it replicates the domination
exercised by the abuser.”3 For the battered woman to be empowered,
it is essential for the legal system to provide her with options whether
she chooses to leave her batterer or to stay in the relationship.
Feminism has often been credited with advancing the cause of
the battered woman, in society and in the courtroom.4 Feminism is
defined as “the theory of political, economic and social equality of the
sexes; organized activity on behalf of the women’s rights and
interests.”5 A central ideal to the promotion of the rights of women,
in general, and of the battered woman, in particular, is empowerment
and autonomy.6 To exercise self-determination, the voice of the
battered woman must be heard and her choices should be respected.
Empowerment also plays a central role in the healing process
for the survivor of domestic violence. Moreover,
empowerment provides a space for the
battered woman to decide how to
proceed in the healing process…it
suggests the need for those involved in
the healing process to present options
and relevant data, encouraging the
3
Sally F. Goldfarb, Reconceiving Civil Protection Orders for Domestic Violence:
Can the Law Help End the Abuse without Ending the Relationship?, 29 CARDOZO L.
REV. 1487, 1503 (2008).
4
Id. at 1489.
5
MERRIAM WEBSTER DICTIONARY, 265 (11th ed. 2004).
6
See, e.g., National Coalition Against Domestic Violence, Battered and Formerly
Battered Women’s Statement, (2004),
http://www.ncadv.org/resources/BatteredandFormerlyBatteredWomensStatement.p
hp.
29
survivor to choose the path with which

she is most comfortable.7
Clearly, the objectives of the legal community and the clinical

community are not the same. The legal community, “as guardians of
public safety[,]…must proceed against domestic violence defenders
with or without victim cooperation as long as there is legally
sufficient evidence”8 [emphasis original]. However, this firm stance
may serve only to endanger or disenfranchise the battered woman in
the end. Therefore, the legal system should find a better approach to
working with battered woman that respects her rights and autonomy.
For much of American history, the nation’s legal system
refused to act on instances of domestic violence.9 Moreover, “at the
root of this failure to protect battered women was the patriarchal
notion of privacy: respect for the nuclear, familial home and the
man’s dominance therein.”10 During the country’s infancy and many
years on, the husband had a legal right to physically punish his wife,
7
Linda G. Mills, Killing Her Softly: Intimate Abuse and the Violence of State
Intervention, 113 HARV. L. REV. 550, 567-68, 576-77, 582-85, 595-97, 609-11
(1999) in MARY BECKER, ET AL., FEMINIST JURISPRUDENCE: TAKING WOMEN
SERIOUSLY, THIRD EDITION, 308 (Thompson West 2007).
8
Donna Wills, Domestic Violence: The Case for Aggressive Prosecution, 7 UCLA
WOMEN’S L. J. 173, 173-176, 179-82 (1997) in MARY BECKER, ET AL., FEMINIST
JURISPRUDENCE: TAKING WOMEN SERIOUSLY, THIRD EDITION, 196-197 (Thompson
West 2007).
9
JEANNE SUK, AT HOME IN THE LAW: HOW THE DOMESTIC VIOLENCE REVOLUTION
IS TRANSFORMING PRIVACY, 13 (Yale University Press 2009) (stating, “[i]ndeed,
wife beating, as a form of chastisement and discipline of wives, was overtly
approved and reserved as the right of the man of the house.”).
10
KRISTEN S. RAMBO, “TRIVIAL COMPLAINTS”: THE ROLE OF PRIVACY IN
DOMESTIC VIOLENCE LAW AND ACTIVISM IN THE U.S 113 (Columbia University
Press 2009).
30
as she was an item of his property.11 Further, because a husband was

deemed responsible for the actions of his wife, he was allowed to
punish her misbehavior.12 The husband and wife had a single legal
identity and it rested in the husband.13
In time, with the passage of the Married Women’s Acts14 in
the nineteenth century, and the work of the feminist activists, the
courts began to recognize that they could no longer be a bystander to
the plight of the battered woman.15 However, as this article will
show, the majority of current legal interventions applied are most
beneficial to the battered woman who is either ready and willing to
leave her batterer or whom the court or government institution forces
to separate from her abuser in order to receive its assistance.
Moreover, many attorneys with which the battered woman interacts,
such as the prosecutor, the attorney representing the Department of
11
See, e.g., In State v. Oliver, 70 N.C. 60, 1874 WL 2346, at *2 (N.C. 1874)
(stating “[i]f no permanent injury has been inflicted, nor malice, cruelty nor
dangerous violence shown by the husband, it is better to draw the curtain, shut out
the public gaze, and leave the parties to forget and forgive.”) This assertion of the
court illustrates the legal system’s willingness to ignore what it deemed the minor
violence that occurred in the home. Id. at *2.
12
See, e.g., Bradley v. State, 1 Morr.St.Cas. 20, 1 Walker 156, 1 Miss. 156, 1824
WL 631 at *1 (Miss. 1824), (stating, “let the husband be permitted to exercise the
right of moderate chastisement, in cases of great emergency, and use salutary
restraints in every case of misbehaviour, without being subjected to vexatious
prosecutions, resulting in the mutual discredit and shame of all parties concerned.”).
13
See, e.g., Sawada v. Endo, 561 P.2d 1291, 1295 (Haw. March 29, 1977) (in
describing property rights of married women at common law, stating, “for all
practical purposes, the wife had no right during coverture to the use and enjoyment
and exercise of ownership in the marital estate.”).
14
PETER B. KUTNER & OSBORNE M. REYNOLDS, ADVANCED TORTS: CASES AND
MATERIALS 12 (3d ed. 2007) (“‘Married Women’s Acts’, granting married women
rights to own property, make contracts, keep their own income, etc., were enacted
by many jurisdictions in the nineteenth century.”).
15
Suk, supra note 9, at 13 (asserting that “[a]s a result of feminist activism in the
nineteenth century, the right of husbands to chastise their wives was formally
abolished.”).
31
Social Services (DSS) and the Guardian ad Litem (GAL), may have
the expectation that she will leave her batterer.
In this article, I will argue that the following steps are
necessary to empower the battered woman. The first step is to
recognize that, ultimately, it is the woman’s choice to stay or leave.
Next, the legal system must provide her with the knowledge of her
legal options regardless of her decision or how many times she seeks
its assistance. The battered woman is often in the best position to
assess the lethality of her batterer and should decide the course of her
relationship – and her life – for herself.16 Otherwise, the court system
becomes another controlling entity in her life, telling her that she
must leave in order to gain access to its resources. The battered
woman deserves better from society and from the legal system.
Whether she stays with the batterer or leaves the relationship,
the battered woman should be provided with resources and assistance.
Women with more personal and social resources may be in a much
better position to increase their own safety.17 Moreover, the first time
that she interacts with the legal system, she may not be ready or able
to leave safely. Though the battered woman decides to remain in the
relationship this time, she may later seek to leave her batterer with
assistance from the legal system. In order to provide an open door for
her when she is ready, the legal system must not be viewed as
dominating and unwilling to work with her.18 Moreover, if a battered
woman experiences control on the part of the legal system, she may
resist her role in the prosecution of her batterer. Further, if a battered
16
See generally, University of Minnesota Human Rights Library, Stop Violence
Against Women: 6. Victim Protection, Support and Assistance,
http://www1.umn.edu/humanrts/svaw/domestic/explore/6support.htm (2003).
17
Lisa Goodman, et al., Women’s Resources and Use of Strategies as Risk and
Protective Factors for Reabuse Over Time, 11 Violence Against Women, An
Interdisciplinary and Interdisciplinary Journal 311, 313 (2005).
18
See generally, Jennifer A. Brobst, The Legal Impact on Victims Reluctant to
Testify in North Carolina, 1 Sword & Shield: Accountability for Offenders, Safety
for Victims 1 (2006).
32
woman face intolerance and an unwillingness to work with her, the

legal system may seem like the last place to go to for help.
While it is recognized that men and women control and
assault their partners, this article considers the battered adult woman
who is in a relationship with an adult male batterer. Therefore, this
article focuses on the experiences and challenges of the battered adult
woman who chooses to stay with her partner. It is acknowledged that
battering occurs in all types of relationships, such as between same-
sex partners19 and in teenage dating relationships.20 Further, both men
and women may be victims of domestic violence.21 However, this
article focuses on the unique experience of the battered adult woman
who chooses to maintain a relationship with her male batterer partner.
This article will argue that in order to honor the autonomy of the
battered woman, the legal system must provide her with options in the
event that she chooses not to leave her abuser. The legal system
should not control the battered woman, forcing her to end her
relationship with her batterer in order to gain access to services.
Section II of this article considers the motivation of some women to
remain in a relationship with an abuser. Section III contemplates
legal reforms and policies that can provide options to women who
stay. This argument takes a step forward in the dialogue to argue that
19
National Network to End Domestic Violence, Frequently Asked Questions: Are
Men Victims of Violence?,
http://nnedv.org/resources/stats/faqaboutdv.html#6menvictims, (reporting that “[a]
2001 U.S. study revealed that 85 percent of the victims were female with a male
batterer. The other 15 percent includes intimate partner violence in gay and lesbian
relationships and men who were battered by a female partner.” (last visited Mar. 3,
2011).
20
Centers for Disease Control and Prevention, Understanding Teen Dating
Violence: Fact Sheet, (2010)
http://www.cdc.gov/violenceprevention/pdf/TeenDatingViolence_2010-a.pdf
(reporting that “1 in 4 adolescents report verbal, physical, emotional, or sexual
abuse from a dating partner each year.”).
21
Centers for Disease Control and Prevention, Understanding Intimate Partner
Violence: Fact Sheet, (2011),
http://www.cdc.gov/violenceprevention/pdf/IPV_factsheet-a.pdf (reporting that
“[intimate partner violence] IPV resulted in 2,340 deaths in 2007. Of these deaths,
70% were females and 30% were males.”).
33
not every battered woman will or should leave her abuser. Rather than
asking, why the battered woman stays, this article will argue for legal
options that honor the battered woman’s right to self-determination,
whatever her decision may be. A true feminist perspective on
domestic violence must include a respect for the rights of the battered
woman to be the master of her own destiny, rather than to be
dominated by the more powerful legal system.
II. FACTORS IN A BATTERED WOMAN’S DECISION TO STAY
There are many reasons why a woman may choose to remain
in a relationship in which she is battered by her partner.22 Society
expects that a woman who is abused by her partner should and must
leave him immediately.23 Moreover, “sometimes we tell her that she
must leave; if she does not leave she is a bad mother and her ‘choice’
to stay with the abuser is endangering the children … society says the
state should take her children because she is endangering them”24
[emphasis added]. However, it is clear that there are very real and
valid reasons that a woman may choose to stay with her batterer.25
Among these considerations are fear, financial concerns, immigration
status, lack of support or negative responses from the community and
love for the abusive partner.26 Finally, there is some evidence that in
22
National Network to End Domestic Violence, Frequently Asked Questions: Why
do Victims Sometimes Return to or Stay with Abusers?,
http://nnedv.org/resources/stats/faqaboutdv.html#3whystay, (last visited Mar. 3,
2011).
23
See, e.g., Posting of Mike Alvear to the Huffington Post,
http://www.huffingtonpost.com/mike-alvear/rihanna-the-floormat_b_174064.html,
(March 16, 2009 | 02:01 PM (EST)) (expressing mixed feelings of anger and
sympathy at singer, Rihanna’s decision to return to her boyfriend, singer Chris
Brown, after his highly-publicized violent attack on her, stating “[a]t the risk of
blaming the victim, I have to voice a bit of collective anger about Rihanna's
decision to go back to Chris Brown, or as I like to call him, "Rapper-Batterer Chris
Brown.”)
24
Fuller, supra note 2, at 940.
25
See National Network to End Domestic Violence, supra note 22.
34
some circumstances, with the proper interventions, a batterer can

change, that in fact, “many women have succeeded in remaining in
their relationships and putting an end to violence and with the
assistance of the legal system, many more can.”27 Regardless of her
reasons, the legal system must support a battered woman’s autonomy
and her right to choose to stay or leave.
Race plays a central role in many, if not all, aspects of one’s
view of the world. For the battered woman of color, there may be
further barriers to leaving. According to the National Coalition
Against Domestic Violence (NCADV), “Women of Color ... face
myths of negative stereotypes, such as the myth that Black, Indian
and/or Hispanic people are more violent than others.28 They face
realities such as racism within programs and the criminal system that
leave women of color (battered or not) with fewer options, greater
obstacles to participate and less protection.”29 Therefore, among
members of communities of color, there is often a mistrust and fear of
law enforcement, the legal process and the criminal justice system.
Further,
African American women express
greater reluctance to solicit intervention
from the state. In the African American
culture, where experience with the
criminal justice system has created a
mindset presupposing governmental
coercion, family privacy is highly
valued for the shelter it provides from
26
See, e.g., North Carolina Coalition Against Domestic Violence, Domestic
Violence Information: Definition of Domestic Violence,
http://www.nccadv.org/domestic_violence_info.htm#Definition of Domestic
Violence (2010).
27
Goldfarb, supra note 3, at 1501.
28
National Coalition Against Domestic Violence, Women of Color Caucus
statement, http://www.ncadv.org/resources/WomenofColorCaucusStatement.php;
(follow the “Women of Color Caucus Statement hyperlink) (last visited Mar. 3,
2011).
29
Id.
35
the state. In addition, African

American women and Latinas may be
ostracized by their communities for
contributing to racial stereotypes when
exposing violence suffered at the hands
of their partners.30
Therefore, race may play a particularly important role in a battered

woman’s view of legal system and her decision to stay.
In addition other reasons cited, the battered woman may
choose to stay with her partner because she loves him and does not
want to end the relationship. An example from an article in the New
York Times states, “[Sylvia] never wanted Michael locked up; she
wanted him to change. She wanted to rehabilitate her family, not to
break it up.”31 Sylvia is not interested in interventions that require her
to end her relationship with Michael. The legal system must respect
the choice to stay and provide a battered woman with real legal
options whatever she chooses.
Finally, the danger of an abusive relationship can be very
serious. According to NCADV, “almost one-third of female
homicide victims that are reported in police records are killed by an
intimate partner.32 [Additionally,] in 70-80% of intimate partner
homicides, no matter which partner was killed, the man physically
abused the woman before the murder.”33 As shown by these
statistics, a battered woman often risks death at the hands of her
30
Christine O’Connor, Domestic Violence No-Contact Orders and the Autonomy
Rights of Victims, 40 B.C. L. REV. 937, 958-959 (1999).
31
Goldfarb, supra note 3, at 1489. (quoting Deborah Sontag, Fierce Entanglements,
N.Y. TIMES, Nov. 17, 2002, §6 (Magazine), at 52.).
32
Federal Bureau of Investigation, Uniform Crime Reports Crime in the United
States, 2000, (2001),
http://www.ncadv.org/files/DomesticViolenceFactSheet(National).pdf.
33
Campbell, et al. Assessing Risk Factors for Intimate Partner Homicide, Intimate
Partner Homicide, NIJ Journal, 250, 14-19. Washington, D.C.: National Institute of
Justice, U.S. Department of Justice” (2003).
36
abuser. By virtue of walking out of an abusive relationship, the

battered woman does what her batterer does not want her to do – she
stands up to him and refuses to accept his treatment of her.
Therefore, leaving an abuser can at times be the most perilous times
to leave a batterer.34 A battered woman can best assess her safety and
the safety of her children and may decide that it is safer to stay than to
leave. Further, if her past attempts to leave have been thwarted,
staying may be a better option for her.
III. LEGAL OPTIONS THAT EMPOWER THE WOMEN WHO
STAY
A. Civil Domestic Violence Protective Orders: Not Just for Women
who Leave
The domestic violence prevention order represents a specific
remedy for the battered woman. Applicable statutes include language
such as the following, stating that the order may: “order the defendant
to refrain from contacting the plaintiff, unless authorized by the
court35 … [and/or] order the defendant to vacate forthwith and remain
away from the household, multiple family dwelling, and
workplace.”36 Further, these requirements, “can take several forms,
including ordering the offender to refrain from contacting the victim,
to remain a specified distance away from her and places that she
frequents and to vacate a home shared with the victim.”37 While all
elements of the order are not always required, separation of the
parties and no contact provisions have become synonymous with the
protective order. For the battered woman who choose to stay with her
abuser, the protective order that suggests or requires her to leave her
partner will be an undesirable remedy.
However, the domestic violence protective order should not
necessarily be ignored completely as an option for women who stay.
34
See National Network to End Domestic Violence, supra note 22.
35
MASS. GEN. LAWS ch. 209A §3(b) (2002).
36
MASS. GEN. LAWS ch. 209A §3(c) (2002).
37
Goldfarb, supra note 3, at 1505.
37
The option to obtain a protective order can provide the battered

woman with a feeling of self-determination.38 In addition,
by breaking the silence about the abuse
and creating a public record of what has
been hidden in private, battered women
can regain a sense of control, which in
turn enables them to take further steps
toward improving their lives. In
addition to giving the woman a chance
to speak out, the protection order
operates as an amplifier for her voice; it
unequivocally communicates to the
batterer that his behavior is
unacceptable and that society condemns
domestic violence.39
By filing and obtaining a domestic violence protective order, the
battered woman can grab hold of her life and destiny. She can begin
to feel a sense of control over her own choices. Therefore, the
domestic violence protective order should not necessarily be removed
from consideration when working with the battered woman who
chooses to stay.
A legal system that shuns the battered woman who chooses to
stay will not be helpful to her and will not gain her trust and
cooperation. Moreover, “allowing the victim to select the type of
order she prefers could increase her willingness to seek help through
the legislative process in the future.”40 To provide the tools to help a
battered woman achieve safety and meet society’s goal to bring an
end to domestic violence, the legal system must think creatively to
assist all battered women – those who choose to leave and those who
want to stay.
Therefore, a protective order that requires the batterer to end
the abuse, but allows the partners to remain in a relationship and
38
Id. at 1514.
39
Id. at 1514.
40
Id. at 1523.
38
maintain contact can be an option in some jurisdictions. In the

jurisdictions that have that option, not all judges are willing to grant
them.41 Consequently, in those jurisdictions that provide for a
protective order that permits contact, judges, prosecutors, private
attorneys and court advocates should be educated as to how to use
this option for battered women who are not prepared to leave their
abusers. For example, requiring that the batterer end all contact with
the battered woman is one of several optional remedies to select when
requesting a protective order under such jurisdictions as
Massachusetts42 and North Carolina.43
Finally, the woman who obtains a civil protection order must
not be pressured to seek a final order or have the order renewed or
maintained against her wishes. Merely seeking a civil protection
order can be one tool in a battered woman’s toolbox to working
towards a better future on her terms. For example, in one study,
“women reported that they did not return for a final order because
they felt supported by their advocates and the law, achieved a ‘wake-
up call’ for their partner, sent a ‘message,’ and motivated him to
change or raised the stakes of continued abuse.”44 Further, it must be
noted that civil protection orders are just one piece of the puzzle.
Moreover, “when women file for a [civil protection order], they are
pursuing this legal remedy as one strategy among others… their goals
depend on their particular context and stage in their relationship.”45
Therefore, the women who obtained civil protection orders should
control the decision to continue these orders.
Additionally, though it may be complicated to conceive, civil
protection orders could be expanded to include emotional abuse. In
doing so, the legal system can provide a remedy at an earlier point in
41
Id. at 1523-1524.
42
MASS. GEN. LAWS ch. 209A §3 (2002).
43
NC GEN. STAT. ANN. §50B-3 (West 2009).
44
Jeffrey R. Baker, Enjoining Coercion: Squaring Civil Protection Orders with the
Reality of Domestic Abuse, 11 J. L. & FAM. STUD. 35, 57 (2008).
45
Id. at 74.
39
the relationship before it turns physically violent.46 A few states,

including Michigan, Illinois, Maine and Oregon, include provisions
which provide the possibility for obtaining an order which prohibits
coercive control and emotional abuse.47 Perhaps such a wake-up call
could enable the partners to move toward a healthier, cooperative and
non-violent relationship.
Therefore, the civil protection order can be a tool to provide a
battered woman with a first step toward self-determination and a
control over her life. Whether the woman chooses to retain the civil
protection order or to uses it to serve as a wake-up call to her abuser,
it can be an important first step. Whatever her reasoning, it should be
her decision to make.
B. Without Judgment: the Criminal Justice System Working for
Battered Women who Stay
For the battered woman, the criminal justice system can be the
first step towards a new life or an obstacle preventing her from being
truly autonomous. In fact, “some feminists have noted that state
intervention into the lives of women does not necessarily promote
women’s equality, safety or well-being.”48 While the legal system
has come a long way in recognizing that it may no longer be a
bystander to domestic violence, perhaps the pendulum has swung too
far the other way. At common law, the husband held the right to
punish his wife for misbehavior because he was responsible for her
and the courts deemed it an intrusion upon the marital home to
redress such wrongs49. The rights of a woman to be free from bodily
harm by her partner were ignored. She had little autonomy.
Advances in domestic violence law such as the domestic violence
protective order have changed that. However, policies like mandatory
prosecution of domestic violence, coupled with the expectation that
she must leave her abuser, take away the battered woman’s right to
46
Id. at 58.
47
Id. at 61-64.
48
O’Connor, supra note 30, at 961.
49
See, e.g., State v. Oliver 70 N.C. 60, supra note 11, at *2. See also, Bradley v.
State 1 Morr.St.Cas. 20, supra note 12 at *1.
40
self-determination if the criminal case is brought against her batterer

without her consent. Moreover, “a small but growing number of
feminists are beginning to worry that universally applied strategies,
such as mandatory prosecution, cannot take into account the reasons
women stay in abusive relationships or the reasons for their denial.”50
In order for the criminal justice system to help all battered women, it
must, wherever possible, take into account the unique needs of the
individual battered woman.
Police intervention can be an important tool for the battered
women. Organizational training of law enforcement in domestic
violence issues at the department level may serve to increase
awareness of the need to provide assistance to victims of abuse, rather
than to underestimate the problem by considering it a family matter
that should be left alone.51 At times, law enforcement maybe slow to
respond to a domestic violence call or fail to respond at all.
Moreover, a battered woman may believe that she cannot access
police intervention unless she is prepared to leave her batterer.52
Some women state “that they were not going to end the relationship
and that they ‘love him’ as reasons for not calling the police…Many
women perceive that to get help from … the police, they must be
prepared to end the relationship.”53 One study found, “that women
were more readily referred for legal help by police and social workers
if they (victims) appeared determined to change their situation as
50
Linda G. Mills, Institution and Insight: A New Job Description for the Battered
Women’s Prosecutor and Other More Modest Proposals, 7 UCLA WOMEN’S L.
REV. 183, 187-88 (1997) in NANCY K. D. LEMON, DOMESTIC VIOLENCE LAW,
SECOND EDITION, 722 (Thomson West 2005).
51
See Lamis Ali Safa, Note, The Abuse Behind Closed Doors and the Screams that
are Never Heard, 22 T. MARSHALL L. REV. 281, 306. (stating “despite the
preference of some people that police respond to the crime of wife battering by
enforcing the law against the wife batterer, the policy of many jurisdictions is to
encourage non-arrest or mediation by police officers.”).
52
See id. (proposing that law enforcement may delay or avoid response to a
domestic violence call “when they answer the same call month after month and
nothing seems to change.”).
53
Michelle Fugate, et al., Barriers to Domestic Violence Help Seeking: Implications
for Intervention, 11 Violence Against Women 290, 302 (2005).
41
opposed to being ambivalent in it.”54 Therefore, police intervention

that expects the battered woman to leave the relationship will deter
her from seeking assistance.
In order to be an effective tool for the battered woman, law
enforcement intervention should include a respect for and equal
treatment of the battered woman who chooses to stay. In order to do
so, departmental law enforcement trainings could include a
component that discusses the reasons women choose to stay and the
referral to services tailored to reflect her specific needs. It is not the
duty of law enforcement to pick and choose who it will help and
whom it deems worthy of its assistance. Further, if law enforcement
ignores the particular needs of the battered woman who chooses to
stay, she will be far less likely to seek its assistance in the future.55
Therefore, law enforcement risks alienating other battered women
who may be afraid to access its services. The goal is not to drive
battering back behind closed doors. Rather, law enforcement, like
society, must seek to bring the issue of battering to light to encourage
an end to violence.
The court system can, at times, serve as an obstacle to the
exercise of a battered woman’s autonomy. In effect, “the paternalistic
attitudes with which the courts have traditionally approached
domestic violence victims are an impediment to the free choice and
empowerment of women.”56 In many jurisdictions, upon entering the
court system, the battered woman must be prepared to leave her
abuser. She must be steadfast in her decision to leave and never
return to him. In effect,
if a woman is to act on the help offered
by the legal system, she must be willing
to send him to jail, sever her
relationship with him and risk his
violence when he is released. If she
54
Id. at 303 (citing A. Home, Responding to domestic violence: A comparison of
social workers’ and police officers’ interventions. Social Work and Social Sciences
Review 3, 150 – 162 (1991-1992).
55
Id. at 302.
56
42
repeatedly calls the police and presses

charges, then withdraws and refuses to
prosecute, the courts and police become
frustrated, ignore her complaints and
may also ignore the complaints of other
women.57
Moreover, the battered woman who does not leave and does not fully
cooperate with the prosecutor may find herself facing charges of false
reporting or failure to appear.58 Further, “it has been suggested that a
battered woman’s testimony ‘should be accorded great deference
when [the victim] wants the law to take action against the batterer, but
should be given less weight when [the victim] says she wants to
protect him.’”59 If a battered woman does not want to end her
relationship or has not reached the point at which she is ready to
leave, she may be reluctant to bring charges against her batterer for
fear of facing charges herself.
The courts must recognize a battered woman’s right to self-
determination. Policies to incriminate the battered woman who
chooses not to go forward with her case will discourage her from
seeking assistance from the courts. Threatening criminal contempt
charges is not an effective strategy to gain the trust and assistance of
the battered woman, because “victims are used to an experience of
control and abuse, and therefore often remain passive in the face of
threats of false reporting charges or contempt rulings by prosecutors,
law enforcement and judges.”60 If the court forces the battered
woman to act with dire consequences if she fails to act as the court
thinks she should, she may view the court as acting like a batterer and
act of fear, not intent. Intimidation by the threat of criminal contempt
action does not help the battered woman or the court system.
Wherever possible, the courts and prosecutors should listen to women
and respect her decision to stay or leave.
57
ELIZABETH M. SCHNEIDER, BATTERED WOMEN AND FEMINIST
LAWMAKING. 51 (YALE UNIVERSITY PRESS 2000).
58
Brobst, supra note 18, at 1.
59
60
Brobst, supra note 18, at 2.
43
For similar reasons, mandatory prosecution, or no-drop

policies, that exist in many jurisdictions will often prove to harm
rather than help the battered woman who stays in her relationship.
These “no-drop or pro-prosecution policies prevent prosecutors from
dismissing charges at the victim's request”61 and “are intended to
check prosecutorial discretion.”62 These policies are harmful to the
battered woman because they take the choice to prosecute away from
her and undermine her autonomy and self-determination. The
battered woman cannot be an agent for herself if the system forces the
matter to the courts without her consent. Rather than allowing for the
prosecution of the batterer to be “the victim’s opportunity to take a
proactive step toward removing violence in her life and taking control
in a relationship,”63 such “[a] policy … mandates the removal of this
opportunity and instead replaces one domination with another.”64
Therefore, in order to respect the autonomy of the battered woman
and not be viewed as another controlling force, the courts should not
engage in mandatory prosecution of batterers without the battered
woman’s consent.
In the criminal justice system, the battered woman interacts
with attorneys who do not specifically represent her or her interests,
such as the prosecutor. The prosecutor in the criminal case against
the batterer is a representative of the State or Commonwealth, not the
battered woman. Because of this role, the prosecutor may ignore the
needs and requirements of the battered woman. The prosecutor thus
ignores a key player and someone who will be greatly affected by the
decision of the court. This article does not suggest that the prosecutor
structure his or her case solely around the concerns of the battered
woman. Rather, it is important to understand that the battered woman
can be a willing participant if her views are respected..
However, though the battered woman does not want to the
court to pursue charges against her abuser, in the interests of justice,
61
Goodmark, supra note 1, at 16.
62
63
Id. at 944.
64
Id. at 944.
44
the prosecutor may still go forward.65 In these instances, the court

should take the battered woman’s concerns into account. For
example, the court may be creative with sentencing. For example,
“one innovative judge in Vancouver was willing to experiment with
new programs. Rather than imprisoning these men for months on
end, he sentenced them to weekends in jail.”66 Creative sentencing
can help the battered woman to be safe and still ensure that the
batterer to receives a fair sentence.
In many cases, the judge is given wide discretion in
sentencing. Often when the offense charged is minor or a first time
offense, the judge may consider alternatives to jail time, such as a
batterers’ intervention program.67 Such a program has the
opportunity to be a step to healing and ending the violence. One
option to improve batterers’ intervention programs is to include a
mental health component. In fact, some view battering as an
addiction because “men who are sent by the courts to treatment for
wife assault are addicted to violence. They use it as release from
anger and depression, a way to take control and resolve conflicts, and
a tension reducer.”68 Therefore, there must be a consideration of the
mental health issues that cause a man to seek to control and harm his
partner. Finally, to assist the battered woman who stays in her goal to
end the violence and in the interest of justice, these programs must
have consequences for the batterer who refuses to stop the violence or
who stops attending the sessions. Batterers’ intervention programs
should not be the easy way out for the batterer, but may instead
become the means by which he ends the violence.
In addition, the courts may consider the use of restorative
justice in cases where the battered woman is committed to remaining
65
Goodmark, supra note 1, at 16.
66
DONALD G. DUTTON, PHD WITH SUSAN K. GOLANT, THE BATTERER: A
PSYCHOLOGICAL PROFILE, 173 (Basic Books 1997).
67
Id. at 166 (explaining that batterer’s intervention programs are often in a group
format with “ground rules: …[including] keeping what was said in group
confidential, maintaining openness and honesty [and] taking responsibility for one’s
own violence.”).
68
Id. at 173.
45
with her batterer.69 In effect, “restorative justice is a philosophy that

places emphasis on repairing harm, empowering a victim-driven
process, and transforming the community’s role in addressing
crime.”70 One example of restorative justice that may work in
domestic violence relationship is community conferencing. This
process “is a coming together of identified family and other
supporters for the victim and the offender in a professionally
facilitated meeting to address the wrong done and the harm that
resulted from the wrong … and to identify what the offender is going
to do to make right the wrong.”71 Again, this is not a process that will
succeed in all domestic violence relationships. However, it provides
an alternative that may work for some battered women and support
some batterers in ending the violence.
C. When the Battered Woman is your Client
In some cases, the victim of abuse will hire an attorney to
assist with obtaining a restraining order or other legal issue.72 This
attorney operates on her behalf and is in a good position to assist her
in staying safe should she choose to stay. In working with a client
who is a battered women, an attorney must take special care to work
with her, rather than directing process without her input. In the
abusive relationship, “actions and direction…are not the result of
negotiations, shared decision making or mutual bargains, but follow
the assertion of forceful total hegemony of one over the other.”73
Therefore, to recognize the autonomy of the client in an abusive
relationship, the attorney must work with her, seeking input in the
direction of the case.
69
Quince Hopkins, et al., Applying Restorative Justice to Ongoing Intimate
Violence: Problems and Possibilities, 23 ST. LOUIS U. PUB. L. REV. 289, 294
(2004).
70
Id., at 294.
71
Id., at 296.
72
Ann Shalleck, Theory and Experience in Constructing the Relationship between
Lawyer and Client: Representing Women who have been Abused, 64 Tenn. L. Rev.
1019, 1020 (1997).
73
Baker, supra note 44, at 35-36.
46
At the point at which the battered woman is not seeking to

leave, the private attorney may not have a clear role. However, an
initial meeting with a private attorney is often key to the battered
woman’s understanding of the law in her jurisdiction as it applies to
her situation. For example, in North Carolina, in order to secure
divorce from bed and board, the battered woman must show that the
other party, “by cruel or barbarous treatment endangers the life of the
other”74 or that he “offers such indignities to the person of the other as
to render his or her condition intolerable and life burdensome.”75 The
battered woman may be unable to prove these elements or not want to
affect the reputation of the batterer. In the alternative, the battered
woman could file for divorce without fault. However, in North
Carolina, “[m]arriages may be dissolved and the parties thereto
divorced from the bonds of matrimony on the application of either
party, if and when the husband and wife have lived separate and apart
for one year.”76 Conversely, a battered woman in Massachusetts who
files for divorce on the grounds of irretrievable breakdown of the
marriage is required to wait six months from the time of filing.77
Depending on the jurisdiction, the battered woman who is considering
the option to stay or leave may have a very different legal landscape
to review.
In addition to family law matters, the attorney for the battered
woman who remains with her abuser has other considerations to
discuss with his or her client.78 The attorney can discuss how to
become more financially independent from her batterer. For example,
considering the current financial crisis, it may make sense for both
partners to work outside the home. Also, if thus far, she has been
prevented from having a credit card or account in her name, the
current financial climate may require that she obtain a credit card.
However, it will be vital to encourage the battered women to avoid
74
N.C. GEN. STAT. §50-7(3) (West 2009).
75
N.C. GEN. STAT. §50-7(4) (West 2009).
76
N.C. GEN. STAT. §50-6 (West 2009).
77
MASS. GEN. LAWS ch. 208, §§1 & 1B (West 2009).
78
Shalleck, supra note 72, at 1020-1021.
47
being dragged into debt. Therefore, there are some financial

considerations the attorney may discuss with the victim who stays.
As her advocate, the battered women’s attorney should discuss
alternative options with the client and help her to be proactive in
preparing to leave, despite her present intentions. For example, the
battered woman should set up a separate checking or savings account
in her name only at a bank other than the one she and the batterer use.
In doing so, the battered woman should designate another family
member or a friend as the individual to whom the account is payable
on death. She need not place a great deal of money in the account at
first. Rather, the account will serve as a means to financial
independence should she later decide to leave the relationship. At
minimum, it will provide the battered woman with a degree of
autonomy. Further, the attorney should discuss a safety plan with the
client. Examples of a safety plan may be found online.79 In all
instances, if the attorney is working with a client who is involved in a
domestic violence relationship, the attorney should refer the client to
her local domestic violence service provider80 for assistance and
resources for staying safe while remaining in the relationship.
Finally, the attorney can assist the battered woman in preparing a will
or refer her to another attorney who specializes in estate planning.
Furthermore, the immigrant battered woman may seek legal
assistance through an immigration attorney. These attorneys are
trained to handle the complicated and ever-changing federal
immigration laws. For example, recently, the Obama administration
reversed Bush administration policy regarding asylum for victims of
severe domestic violence.81 The immigration attorney who works
with a battered immigrant woman is in a unique position to
79
See National Coalition Against Domestic Violence, Safety Plan,
http://www.ncadv.org/protectyourself/SafetyPlan.php (last visited Mar. 3, 2011).
80
See National Coalition Against Domestic Violence, State Coalition List,
http://www.ncadv.org/resources/StateCoalitionList.php (last visited Mar. 3. 2011)
(The information provided here indicates local domestic programs through the
United States.).
81
I. Julia Preston, New Policy Permits Asylum for Battered Women,
N.Y. TIMES, July 15, 2009, A1,
http://www.nytimes.com/2009/07/16/us/16asylum.html?_r=1 (last
visited Mar. 3, 2011).
48
understand the legal ramifications in immigration law if the battered

immigrant woman leaves her batterer. This attorney should be
prepared to assist the battered immigrant woman who chooses to stay.
Therefore, an attorney retained by the battered woman will
operate on her behalf and is in a good position to assist her in staying
safe should she choose to stay. In working with a client who is a
battered women, an attorney must take special care to work with her,
rather than directing process without her input. To recognize the
autonomy of the client in an abusive relationship, the attorney must
work with her, seeking her involvement in the direction of the case.
Therefore, there are many ways a private attorney can provide further
resources for the battered woman who chooses to stay.
D. Keeping the Battered Woman Involved is in the Best Interests of
the Child
The battered woman may also interact with an attorney who
represents her children and their needs. For example, the battered
woman may interact with the Department of Social Services (DSS)
attorney who has been assigned to investigate child abuse and neglect
allegations against her and/or the batterer and the Guardian ad Litem
(GAL) that is assigned to represent the interests of her children. It is
rumored to be an unofficial policy in some DSS offices to require a
battered woman to enter a battered women’s shelter to prove that she
has separated from her abuser.82 When such a requirement is in
place, albeit rumored and unofficial, the battered woman will be far
less likely to seek services at her local DSS office. The DSS attorney
should seek to assist her in achieving safety in the home, rather than
separating a mother from her children.
In addition, during the DSS proceedings, a GAL may also be
appointed.83 A GAL is “a guardian, usually a lawyer, appointed by
the court to appear in a lawsuit on behalf of an incompetent or minor
82
This statement is based on anecdotal evidence from the author’s work as a shelter
counselor in Massachusetts.
83
The North Carolina Court System, Frequently Asked Questions,
http://www.nccourts.org/Support/FAQs/FAQs.asp?Type=12&language=1 (Jan. 22,
2003) (explaining the difference between a social worker and a GAL).
49
party.”84 In order to assess the best interests of the child, the GAL
will meet with the child’s mother, who may be a battered woman.85
As stated, there are many reasons why a battered woman may seek to
remain in the relationship. As the mother of the child, the battered
woman’s interest and concerns must be acknowledged by the GAL.
For example, when the GAL listens to the battered mother’s concerns
in considering what is the child’s best interest, he or she will gain a
more well-rounded perspective of the needs of the child. Therefore,
the GAL should educate himself or herself on domestic violence to
better understand the perspective of the battered mother. The GAL
should encourage the battered mother’s participation in the process,
thereby reinforcing her autonomy.
IV. CONCLUSION
The decision to leave a batterer must remain with the battered
woman. Her assessment of her relationship with her batterer and her
autonomy must be held in highest regard by the legal system. In
order to better serve all battered women, it is vital that the legal
system incorporate options that work for the battered woman who
chooses to stay with her abuser, as well as for the battered woman
who leaves. Whether the attorney is the prosecutor in a criminal case
against her batterer, is hired by the battered women or represents the
interests of her children, the attorney must work with the battered
woman and respect her intentions and decisions. The battered woman
deserves better than to be bullied by the legal system to leave her
relationship when she is not ready or is unwilling. Feminism has long
fought for the self-determination and autonomy of all women. It
honors the right of each woman to choose her own destiny. Once
again, feminism can lead the way as we envision the battered
women’s movement of the future.
84
BLACK’S LAW DICTIONARY 774 (9th ed. 2009).
85
The North Carolina Court System, supra, note 85.
50
51
A ROBUST CONCEPTION OF SPEECH: HATE SPEECH AND

THE FIRST AMENDMENT
Preston D. Mitchum*
I. INTRODUCTION
The United States Constitution does not grant rights to

Americans.1 On the other hand, the Constitution assumes those rights
exist, and restricts the government from interfering with them.2
According to John Stuart Mill, “[w]e can never be sure that the
opinion we are endeavoring to stifle is a false opinion; and if we were
sure, stifling it would be an evil still.”3 In other words, individuals
have a fundamental right to freedom of speech without governmental
intrusion, even though his or her speech may be untrue. If Mr. Mill is
correct in his assertion, then the First Amendment’s Free Speech
Clause is undoubtedly the most powerful right that individuals retain
from the Bill of Rights and the United States Constitution.
A common form of speech that the government intends to
prevent is ‘hate speech’ because some critics argue that it has no
*BA, Kent State University, 2008; J.D. Candidate, North Carolina Central
University School of Law, 2011. First, I would like to thank God because without
him, nothing is possible. Second, I would like to thank my mother, Carla Owens,
and my grandmother, Lillie Jean Thompson. Words cannot express how
appreciative I am of their love and support. Third, I would like to thank my sisters –
LeShanua, Ebony, and Jahmeelah. I can only hope that I can be an inspiration to
them like they are to me. Lastly, I would like to thank my mentor, Professor Brenda
Reddix-Smalls, and my family and friends for their support throughout this law
school journey and my lifelong dream of becoming an attorney.
1
Ronald J. Rychlak, Compassion, Hatred, and Free Expression, 27 MISS. C. L. REV.
407, 408 (2008).
2
Id.
3
JOHN STUART MILL, ON LIBERTY 90-91 (Penguin Books Ltd. 1974) (1859).
52
value in the marketplace of ideas.4 However, the idea that every

citizen is entitled to free speech is indeed a misnomer.5 Below are
three hypothetical scenarios of extreme hate speech. In each
example, the First Amendment has been extended to the point of no
return to safeguard the speaker.
First, imagine a middle-aged Black woman walking down the
street in a rural part of Mississippi. She hears voices from across the
street, but unfortunately cannot make out the speech. Suddenly,
someone exclaims, “stupid black bitch!” Immediately offended, she
runs into her apartment to seek refuge. Finally escaping, she calls the
local police to file a police report. To her surprise, the Sergeant
responded that she would be able to file a report, but it would not
matter because her neighbors were simply exercising their “freedom
of speech.” Although the words were hateful, they were entitled to
constitutional protection. Would John Stuart Mill agree with this
philosophy or would he believe this woman would have a cause of
action for hate speech or fighting words?
Second, envision a Muslim woman running late for a flight at
John F. Kennedy, International Airport. This departure is necessary
because the next flight does not leave until the following business
day. She begins to rush through security, and officers are alerted
unexpectedly. In astonishment, she asks, “Did I do something
wrong?” Refusing to answer her question, one of the officers grabs
her arm, and forces her into the police room in the airport. Other
passengers are frustrated with the amount of controversy this woman
is allegedly causing. Suddenly, an older Caucasian gentleman shouts,
“She is a terrorist and is attempting to destroy our country . . . We
should have kicked them out of America after September 11th!”
Does this woman have to listen to these untruthful and provocative
comments or is his statement protected by the First Amendment?
Third, picture an Asian man entering Kent State University,
located in northeastern Ohio. Already nervous because of the culture
shock, his nerves soon turn into trepidation when he learns there are
19,918 undergraduate students, and only 316 are Asian.6 Deciding to
4
Id.
5
Id. at 66.
6
Student Body Profile: Excellent in Action – By the Numbers,
http://www.kent.edu/about/facts/StudentBody.cfm (last visited Nov. 13, 2010).
53
make this an incredible educational experience, he enters his first

course of the Fall Semester -- “American Politics.” Considering the
last two rows were unavailable, he walked to the very front row,
which was in front of the professor. Class began at 10:00 a.m., and to
his dismay, the time was 10:15 a.m. The aggravated professor turned
his head and in disbelief uttered, “I thought ‘chinks’ knew how to tell
time. Thanks for proving me wrong.” Embarrassed and
dumbfounded, the student makes an immediate exit from the
classroom. Will this be another instance when the First Amendment
trumps an individual’s right to refrain from hearing such offensive
remarks?
Granted, the hypothetical scenarios are extreme, however they
are plausible experiences and because of First Amendment
protections, people who wish to make repugnant statements are
permitted to do so under the freedom of speech.
This paper will examine the doctrinal framework of fighting
words and hate speech. While this paper will address how the
legislature and judiciary should change regulations as times change, it
also focuses on case law and statutory authority that infringes on an
individual’s right to free speech under the First Amendment. Next,
this paper will analyze the purpose of the First Amendment’s Free
Speech Clause. This paper will observe that while people may be
offended by distasteful comments, the government should not create
hate speech restrictions solely for this reason. Furthermore, this paper
will consider the role of a “well-ordered society” in creating hate
speech regulations. In addition, this paper will discuss racist hate
speech and its possible harm on society. Lastly, this paper will unveil
the dilemma between hate speech policies at private and public
universities.
II. HISTORICAL BACKGROUND OF THE FIRST AMENDMENT

The First Amendment to the United States Constitution was
ratified in 1791.7 Pursuant to the First Amendment, “Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble; and to petition
the Government for a redress of grievances.”8 Historically, each
7
U.S. CONST. amend. I.
8
Id.
54
freedom carries significant weight, but the most important freedoms

are arguably speech and press;9 and the prohibition of these freedoms
is unquestionably the reason the First Amendment was enacted.10 If
this right were detached from personal liberties, then the
“marketplace of ideas” that proponents espouse would be
meaningless.
Hate Speech and the Alien and Sedition Acts of 1798

In 1798, Congress adopted the Alien and Sedition Acts of
11
1798. The Alien and Sedition Acts of 1798 resulted from divisions
between the Federalist and Republican parties.12 In anticipation of a
possible war with France, the predominantly Federalist Congress
enacted four laws.13 The Alien and Sedition Acts prohibited the
publication of:
[F]alse, scandalous, and
malicious writing or writings
against the government of the
United States, or either house of
the congress of the United
States, or the President of the
United States, with the intent to
defame . . . or to bring them . . .
into contempt or disrepute; or to
execute against them . . . hatred
of the good people of the United
States, or to stir up sedition
9
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1205 (Aspen 3d ed. 2009).
10
Id. at 1206.
11
Id.
12
Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from Virginia
and Kentucky Resolutions, 11 CONST. COMMENT. 315, 317 (1994).
13
1 Stat. 596, Act of July 14, 1798 (“In 1798, the Federalist-controlled Congress
passed four acts to empower the president of the United States to expel dangerous
aliens from the country; to give the president authority to arrest, detain, and deport
resident aliens hailing from enemy countries during times of war; to lengthen the
period of naturalization for immigrants.”).
55
within the United States, or to

excite any unlawful combination
therein, for opposing or resisting
any law of the United States, or
any act of the President of the
United States.14
In other words, the Alien and Sedition Acts criminalized free speech.
The Alien and Sedition Acts of 1798 were repealed as a
violation of political speech, and the freedom to “speak freely about
whatever you want.”15 This means that if individuals wanted to
exclaim “hateful” comments about the government or the President of
the United States, then he or she would be able to freely do so.
Therefore, the repeal of the Alien and Sedition Acts allowed for free
speech even when the comments were considered inappropriate,
distasteful, or offensive. The First Amendment was not enacted to
protect individuals from hearing these comments. On the contrary, a
person should be able to espouse a particular viewpoint, protected
under the First Amendment, without fear of retaliation.16
III. SHOULD “FREEDOM OF SPEECH” BE CLASSIFIED AS A

FUNDAMENTAL RIGHT? IF SO, DOES IT EXTEND TO HATE
SPEECH?
The First Amendment is arguably the most publicly valued
provision of the United States Constitution.17 Speech is the core of
our particular identity as citizens.18 Furthermore, people are
guaranteed the right to express any thought, free from government
14
Id.
15
CHEREMINSKY, supra note 8, at 1206.
16
See generally Bradshaw v. Twp. of Middleton, 296 F. Supp. 526, 542 (D.N.J.
2003).
17
Tom Donnelly, Article, A Popular Approach to Popular Constitutionalism: The
First Amendment, Civic Education, and Constitutional Change, 28 QUINNIPIAC
L. REV. 321, 327 (2010).
18
Police Dept. of Chicago v. Mosely, 408 U.S. 92, 95 (1972).
56
censorship.19 When the government begins to censor without a

compelling or substantial state interest, First Amendment protections
are being destabilized.20 Any restriction on expressive activity
because of its content would “completely undercut profound national
commitment to debate on public issues should be uninhibited robust,
and wide-open.”21 As a general principle, the First Amendment
prevents the government from controlling what people see and hear.22
However, freedom of speech has limitations; it does not embrace
certain categories of speech, including defamation, obscenity,
pornography, and pornography.23 Hate speech may not necessarily be
placed in any of these unprotected categories. Furthermore,
restricting hate speech solely because of its content would have a
similar effect of reducing debate on controversial issues, and should
therefore, be protected speech under the First Amendment.
The Freedom of Speech and Fundamental Rights
Fundamental rights are those that are deeply rooted in the

Nation’s history and tradition and implicit in the scheme of ordinary
justice.24 Justice Brandeis articulated the importance of the First
Amendment being construed as fundamental rights by stating, “[The]
freedom to think and to speak as you think are means indispensable to
the discovery and spread of political truth . . . . [I]t is hazardous to
discourage thought, hope, and imagination . . . .”25
There are four major theories why the freedom of speech
should be classified as a fundamental right: (1) self-governance; (2)
19
Id.
20
Id.
21
Id. (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (270)) (Landmark
federal defamation case that allowed public officials or public figures to sue for
defamatory comments, but only if they can assert actual malice. Actual malice is a
legal standard for the reckless disregard for the truth).
22
Ashcroft v. Free Speech Coal., 534 U.S. 234, 245 (2002).
23
Id. at 245-46.
24
Washington v. Glucksberg, 521 U.S. 702, 702-21 (1997).
25
Whitney v. California, 274 U.S. 357, 327 (1927) (Brandeis, J., concurring).
57
discovering truth; (3) advancing autonomy; and most importantly, (4)

promoting tolerance.26 Perhaps the most controversial out of the four
theories is the concept that hate speech promotes tolerance. For those
reasons, hate speech should be classified as a fundamental right, and
thus entitled to constitutional protection.
1. Self-Governance
Freedom of speech helps perform a check on the value of

government.27 The First Amendment creates an open dialogue, and
allows individuals to make informed choices.28 For example, in
elections, voters must acquire intelligence, integrity, and acumen
necessary to make an effective decision.29 Robert Bork contends
political speech is the only speech that is constitutionally protected
under the First Amendment.30 However, the Constitution is a living
document that changes and as times change. Thus, political speech is
not the only category of speech entitled to constitutional protection.
Accordingly, this protection should be extended to hate speech.
2. Discovering Truth
Truth is likely to be discovered from the discussion of diverse

perspectives.31 Under the First Amendment, “there is no such thing
26
CHEMERINSKY, supra note 9, at 1208-1212 (“All are important in understanding
why freedom of speech is protected, in considering what expression should be
safeguarded and what can be regulated”).
27
Id. at 1208.
28
Id.
29
Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B.
FOUND. RES. J. 523 (1977).
30
Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND.
L.J. 1, 28 (1971).
31
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (Five
Russians were convicted of “publishing language intended to incite, provoke, and
encourage resistance to the United States in the war with Germany, and that during
such war they incited and advocated curtailment of ordnance and munitions.”
Conviction affirmed).
58
as a false idea. However pernicious an opinion may seem, we depend

for its correction not on the conscience of judges and juries but on the
competition of other ideas. But there is no constitutional value in
false statements of fact.”32 Neither the intentional falsity nor the
careless error will advance a robust conception of speech and public
debate.33 If a deceptive idea or opinion exists, the First Amendment
requires that the marketplace of ideas solve that problem, rather than
by government control.34 This is not because the marketplace
necessarily separates truth from falsehood, but because people distrust
the government from doing so.35
However, critics of the marketplace theory argue that simply
because ideas are in the market does not mean they are true.36 Critics
contend that individuals with more resources will always have his or
her ideas at the forefront of the market.37 Although this raises a
critical point of inequality of resources in the marketplace, two crucial
issues exist. First, the United States Supreme Court has repeatedly
held they are not in the ‘business’ of equalizing resources.38
Although this statement was made in the context of campaign finance
reform, its application could apply to hate speech and the marketplace
of ideas.39 Second, it is insulting to assume that simply because the
general public hears something, they will automatically believe it.
Silencing speech will not bring forth truth; requiring more speech
will.40
32
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974).
33
Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and
Somewhat Curious Relationship, 53 UCLA L. REV. 1107, 1110 (2006).
34
Id. at 1111.
35
Id.
36
CHEMERINSKY, supra note 9, at 1210 (Lawrence Tribe observed , “[e]specially
when the wealthy have more access to the most potent of communication than the
poor, how sure can we be that ‘free trade of ideas’ is likely to generate truth.”).
37
Id.
38
See Buckley v. Valeo, 424 U.S. 1 (1976).
39
See generally id.
40
Varat, supra note 33, at 1121.
59
In the marketplace of ideas, individuals can utilize their First

Amendment freedoms to make a statement that some will consider
offensive, and that others will believe are true.41 In some instances,
the First Amendment may bring about “the clearer perception and
livelier impression of truth, produced by its collision with error.”42
This false statement could have an enlightenment value attached to it,
and when juxtaposed with the truth, the truth will become clearer, and
thus contributing to the marketplace of ideas.43 Certainly freedom of
speech has its problems, but the alternative of the government
determining the truth and censoring speech, is much worse.44 With
respect to protecting First Amendment freedoms, “there is no
competing interest sufficient to override our precious freedom to
vigorously debate the wisdom of enacting a measure, even if that
debate contains falsehoods as well as truths.”45
3. Advancing Autonomy
Exercising your ability to speak freely is a form of expression,

and thus entitled to constitutional protection.46 Protecting speech is
critical to autonomy because expression is inherently important to
self-fulfillment.47 According to Justice Thurgood Marshall, “[t]he
First Amendment serves . . . the needs of the polity [and] also those of
the human spirit – a spirit that demands self-expression.”48
Therefore, the First Amendment is entitled to a special protection in
our society.49
41
See State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm., 957 P.2d 691,
701 (Wash. 1998) (Talmadge, J., concurring, joined by Johnson, J.).
42
Varat, supra note 33, at 1119.
43
Id.
44
CHEMERINSKY, supra note 9, at 1210.
45
State ex rel. Pub. Disclosure Comm'n, 957 P.2d at 700.
46
CHEMERINSKY, supra note 9, at 1211.
47
Id.
48
Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring).
49
Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011).
60
In recent years, critics of hate speech have argued for its

restriction because of how such expression demeans others.50
However, although hate speech is repugnant, it allows individuals to
express personal viewpoints, and should be protected if it does not
incite or produce violence.51 If the government regulated hate speech,
it would have the ability to manipulate unpopular speech, and
therefore control matters of public concern.52 In a recent, and
unfortunately correct, United States Supreme Court decision in
Snyder v. Phelps, the Court held that speech on matters of public
concern are “is at the heart of First Amendment protection.”53 Speech
involves matters of public concern when it can “be fairly considered
as relating to any matter of political, social, or other concern to the
community.”54 Governmental regulation of unpopular speech, such
as hate speech, is at a high-level of First Amendment values, and any
attempt to control this speech would contravene its purpose.55
4. Promoting Tolerance
Tolerance should be a basic value in any civil society because

“free expression [and speech] provides a safety valve amidst social
conflict, allowing the non-violent release of tensions and hostilities
within a community and promoting the achievement of mutual
tolerance among antagonistic groups.”56 For example, we know the
Nazis’ views are “wrong,” but we have to tolerate them because
50
See Richard Delgado, Words that Wound: A Tort Action for Racial Insults,
Epithets and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133 (1982) (arguing for
restriction of hate speech).
51
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
52
Snyder, 131 S.Ct. at 1215.
53
Id.
54
Id. at 1216 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).
55
Id.
56
Josie Foehrenbach Brown, Article, Representative Tension Student Religious
Speech and the Public School’s Institutional Mission, 38 J.L. & EDUC. 1, 8 (2009).
61
opening the door to constant suppression of speech, is much worse.57

Tolerating offensive speech is not an evil, but rather, an affirmative
good.58 Tolerance and acceptance are not synonymous; however,
both are crucial democratic value and because words can and often do
cause harm.59 Certainly, no one contends the physical torture others
suffered as a result of their viewpoints requires tolerance. However,
their verbal expressions of hatred have constitutional undertones and
educative effects.60
By requiring individuals to be tolerant of the most repugnant
speech, the First Amendment is being used as a tool of tolerance
throughout political life.61 The purpose of free speech, and even hate
speech, is to teach self-control by forcing people to tolerate an
activity they would otherwise suppress.62 Tolerance is a desirable
value and protecting unpopular or distasteful speech is itself an act of
tolerance. The free exchange of information and ideas is necessary to
a self-governing society.63 Such tolerance serves as a model that
encourages and facilitates more tolerance throughout society.64 Thus,
under a tolerance theory, even hate speech could help to contribute to
promoting a tolerant society.
57
David Strauss, Why Be Tolerant?, 53 U. CHI. L. REV. 1485, 1493 (1986)
(reviewing Lee Bollinger, The Tolerant Society: Freedom of Speech and Extremist
Speech in America (1986)).
58
Id.
59
Michael Kent, Curtis, Article, Be Careful What You Wish For: Gays, Dueling
High School T-Shirts, and the Perils of Suppression, 44 WAKE FOREST L. REV. 431,
434 (2009).
60
See id.
61
Strauss, supra note 57, at 1485.
62
Id. at 1486.
63
Id.
64
LEE BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST
SPEECH IN AMERICA 9-10 (Oxford University Press 1986).
62
IV. CONTENT-BASED AND CONTENT-NEUTRAL

REGULATIONS OF HATE SPEECH
The First Amendment provides the principle that each person

should decide for himself or herself the ideas and beliefs deserving of
expression and adherence.65 Government actions or regulations that
suppress speech because of its message contravene fundamental
rights provided by the First Amendment.66 These restrictions “rais[e]
the specter that the Government may effectively drive certain ideas or
viewpoints from the marketplace.”67 In other words, if the
Government is able to regulate speech and other forms of expressive
communication, then they will be able to control the marketplace of
ideas.68 Certainly, controlling the marketplace of ideas is not the
purpose of the First Amendment, and the Government should not
have the ability to regulate hate speech simply because the language
contained therein will offend certain groups.69
To determine which level of scrutiny to apply to Government
regulations, it is necessary to distinguish between content-based and
content-neutral regulations.70 The principle determination of content-
neutrality is whether the government has adopted a regulation of
speech because of agreement or disagreement with the message
conveyed.71 Generally, laws that distinguish favored speech and
disfavored speech based on the ideas or viewpoints expressed is
content-based.72 However, if regulations or laws are imposed without
reference to the ideas or viewpoints expressed, the law is typically
65
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).
66
Id.
67
Id. (quoting Simon & Schuster, Inc. v. State Crime Victims Bd., 502 U.S. 106,
116 (1991)).
68
See id.
69
See generally Varat, supra note 35, at 1111.
70
Turner Broad. Sys., supra note 72.
71
Id. at 642. See also R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).
72
Id. at 643.
63
content-neutral.73 Regulations that are content-based trigger a strict-

scrutiny analysis whereas content-neutral laws trigger intermediate
scrutiny.74
Laws that attempt to regulate hate speech or eliminate
expressive conduct do so on the basis of the ideas or viewpoints
expressed.75 For that reason, suppressing speech of hateful words
deserves the highest level of constitutional scrutiny. A lesser standard
would undermine the purpose of the First Amendment.
V. UNPROTECTED SPEECH VERSUS PROTECTED SPEECH:

FIGHTING WORDS
Are fighting words and hate speech both entitled to

constitutional protection? Under the fighting words doctrine, fighting
words are not constitutionally protected under the First Amendment.76
Similar to hate speech, fighting words constitute words that others
may find offensive, but do not involve groups who were traditionally
subject to discrimination.77 Fighting words are “those which by
their very utterance inflict injury or tend to incite an immediate
breach of the peace.”78 Because these words would lead to a possible
retaliatory act, they should not be entitled constitutional protection,
and the government should have the right to intervene to prevent
violent acts.79 As long as the particular words would cause a
reasonable person to retaliate, then the words are classified as fighting
words.80
73
Id.
74
See generally R.A.V., 505 U.S. at 377.
75
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 207 (3d Cir. 2001) (citing
R.A.V., 505 U.S. at 377)).
76
Id.
77
R.A.V., 505 U.S. at 377.
78
Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942).
79
See State v. Gaymon, 96 Conn.App. 244, 249, 899 A.2d 715, 720 (2006).
80
Id.
64
Fighting Words in the LGBT Community
In Street v. New York, a man burned an American flag while

simultaneously uttering, “We don’t need no damn flag . . . . If they let
that happen to Meredith we don’t need an American flag.”81 Though
some listeners may have wanted to retaliate, the Court concluded that
the language was not enough to prove the ‘average’ person to retaliate
and cause breach of peace.82 Therefore, most courts will look at the
message and determine if an average or reasonable person is moved
to retaliate.83
Under the doctrinal framework of fighting words, speech must
be conveyed to a particular individual.84 Thus, whether concerning
sexual orientation or otherwise, if the speaker directs his expression at
a particular person, then the fighting words exception to free speech
should be held inapplicable. For example, in Gilles v. Davis, the
Court held that a preacher’s words and conduct constituted fighting
words because they would cause a reasonable person to retaliate.85 In
Gilles, a preacher went to a college campus to preach against
homosexuality.86 Ultimately selecting a student who identified as a
Christian and lesbian; the preacher exclaimed, “Oh, my, you ma’am
are most confused . . . . She’s a lesbian for Jesus. Do you lay down
with dogs? . . . . Can you be a bestiality lover and a Christian also?”87
The court opined that the preacher did not retain a constitutional right
of making such statements because his speech was of such slight
social value as a step to truth, that it was outweighed by societal
interests.88
81
Street v. New York, 394 U.S. 576, 592 (1969).
82
See id.
83
Id.
84
See Hess v. Indiana, 414 U.S. 105, 108 (1973).
85
See Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005).
86
Id. at 201.
87
Id. at 205 (The court ultimately held that although he had the right to speak
generally to a crowd regarding his views, his epithets directed at the woman were
abusive and constituted fighting words).
88
Id.
65
VI. CONSTITUTONALLY PROTECTED SPEECH: HATE

SPEECH
Hate speech “[c]arries no meaning other than the expression

of hatred for some group, such as a particular race, especially in
circumstances in which the communication is likely to provoke
violence.”89 R.A.V. v. City of St. Paul was one of the first cases
concerning hate speech laws.
In R.A.V., several teenagers assembled a cross by taping
together broken chair legs.90 They allegedly burned the cross in the
yard of a Black family that lived directly across the street.91 The
teenagers were accused of violating the St. Paul Bias-Motivated
Crime Ordinance.92 The ordinance provided:
Whoever places on public or
private property a symbol,
object, appellation,
characterization or graffiti,
including, but not limited to, a
burning cross or Nazi swastika,
which one knows or has
reasonable grounds to know
arouses anger, alarm or
resentment in others on the basis
of race, color, creed, religion or
gender commits disorderly
conduct and shall be guilty of a
misdemeanor.93
89
90
R.A.V. v. City of St. Paul, 505 U.S. 377, 379 (1992).
91
Id.
92
MINN. LEGIS. CODE § 298.02 (1990).
93
R.A.V., 505 at 380.
66
The petitioner moved to dismiss this violation and contended that the
statute was overbroad, and therefore unconstitutional.94 The trial
court agreed, but the Minnesota Supreme Court reversed.95
The Government may not create regulations that effectively
drive their ideas or views in the marketplace.96 In R.A.V., the
ordinance was unconstitutional because it attempted to regulate ideas
and viewpoints expressed by individuals.97 The First Amendment
does not permit the City of St. Paul to create an ordinance that
imposes prohibitions on those speakers who express views on
disfavored subjects.98
VII. DOES RACIST HATE SPEECH HAVE A CAUSAL

CONNECTION TO SOCIAL HARMS?
Racist hate speech is alleged to cause a wide variety of

harms.99 It is argued that hate speech causes racial violence, racial
discrimination, and political disenfranchisement.100 Furthermore,
there are arguments that harms caused by racist hate speech outweigh
the harms caused by its regulation.101 However, I propose that these
harms do not develop from hate speech, but from something already
present. Suppressing speech only causes society to believe the world
is a better place because overt expressions of racism are not present.
Critics argue that hate speech marks people of color as
socially subordinate to white people and makes discriminatory
behavior acceptable.102 Critics also argue that racist hate speech
94
Id.
95
Id.
96
R.A.V., 505 at 388.
97
See id. at 391.
98
Id.
99
Ishani Maitra & Kate McGowan, On Racist Hate Speech and the Scope of a Free
Speech Principle, 23 CAN. J.L. & JURIS. 343, 364 (2010).
100
Id.
101
Id.
102
Id. at 369.
67
continues a system of racism in America.103 Absent criminal conduct

and physical discriminatory behavior, individuals should possess the
right to make statements others consider offensive. Racism is more
than race hatred or prejudice.104 Rather, racism is the structural
subordination of a group based on an idea of racial inferiority.105
Although subordination is not an affirmative good, silencing these
statements because of disapproval would be worse. According to Dr.
Cornel West, "to engage in a serious discussion of race in America,
we must begin not with the problems of black people but with . . .
historic inequalities and longstanding cultural stereotypes. How we
set up the terms for discussing racial issues shapes our perception and
response to these issues.”106 Therefore, racism does not develop from
racist hate speech; it is a derivative from systematic inequalities, and
it is necessary to confront those inequalities first before silencing a
person for making distasteful statements.107
Furthermore, critics attempt to argue that hate speech should
be controlled because “(1) equality and human dignity should be the
guiding principles in First Amendment jurisprudence; (2) speech is
already regulated in various contexts; and (3) the United States
Constitution, most notably the Fourteenth Amendment.”108 However,
the question we should ask is if the government is permitted to
continuously regulate all areas of speech, then when will enough be
enough? Although the right to free speech does not mean that a
person can go around and use any insulting comment, it does mean
that the government may not unreasonably interfere with our First
Amendment freedoms.109
103
Id.
104
Mari Mastuda, Public Response to Racist Hate Speech: Considering the Victim’s
Story, 87 MICH L. REV. 2320, 2358 (1989).
105
Id.
106
See Cedric Merlin Powell, The Mythological Marketplace of Ideas, 12 HARV.
BLACKLETTER L.J. 1 (1995).
107
Id.
108
Id. at 48.
109
Rychlak, supra note 1, at 408.
68
IX. UNIVERSITY HATE SPEECH POLICIES
A. Public Universities
While the Supreme Court has generally held that the First
Amendment extends to state university campuses, it also held that a
university’s mission is education and has never interpreted the First
Amendment to deny a university’s authority to impose reasonable
regulations compatible with that mission upon the use of its campus
and facilities.”110 The university has generally created a forum that is
open to its student body.111
Although individuals retain First Amendment protections, the
university is one of the few settings where hate speech should be
severely limited. The Court has held a “university’s right to exclude .
. . First Amendment activities that . . . substantially interfere with the
opportunity of other students to obtain an education.”112 Furthermore,
exposure to hate speech interferes with the enjoyment of educational
opportunities in the university context, which is important to
protect.113 At many colleges and universities, university hate speech
policies serve the purpose of preventing interference with a minority
groups’ educational experience.114
At Emory University, a Black freshman who went to class,
came back to her dormitory and noticed her teddy bear was slashed,
her clothes were soaked with bleach, and “Nigger hang” was written
in lipstick on her wall.115 The student collapsed and was hospitalized
due to trauma.116 Legal recourses must exist for students like this
college freshman; thus, a different analysis for hate speech is
necessary.
110
See Widmar v. Vincent, 454 U.S. 263, 268 (1981).
111
Id. at 267.
112
Healy v. James, 408 U.S. 169, 188-89 (1972).
113
Melissa Webermann, University Hate Speech Policies and the Captive Audience
Doctrine, 36 OHIO N.U. L. REV. 553, 559 (2010).
114
Id.
115
Id. at 553.
116
Id.
69
Regulated expression continues to raise troubling issues

concerning students’ free speech rights at public universities.117
Since the late 1980s, universities have encountered many hate speech
problems on campus.118 Increasing incidents have caused many
university officials to enact rules that regulate conduct that regulate
behavior of directed at minority groups.119 However, public
universities have a difficult situation in enacting hate speech
regulations that will pass constitutional scrutiny.120
In the university setting, the marketplace of ideas is robust.
Creating hate speech policies will not erode this important concept.
The First Amendment solves the conflict between public university
policies promising free speech and its speech-restrictive policies by
rendering the policies unconstitutional.121
B. Private Universities
Although the First Amendment answers the conflict regarding

a public university’s hate-speech policy, a similar conflict is not
resolved at private universities.122 Private colleges are not state
actors; thus, the First Amendment does not restrict private universities
from creating hate speech restrictive policies.123
A private association’s inability to exclude individuals who
express beliefs different to the association’s can interfere with the free
speech and association rights.124 For example, a former policy at
Stanford University proscribed insulting speech to groups on the basis
117
Id.
118
Id.
119
Id. at 554.
120
Weberman, supra note 113.
121
Kelly Sabaryn, Free Speech at Private Universities, 39 J.L. & EDUC. 145 (2010).
122
Id. at 180.
123
Id. at 145.
124
Id. at 155. See also Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000).
70
of sex, gender, sexual orientation, religion.125 Students sued Stanford

for this policy under the Leonard Law as a violation of free speech.126
The court concluded that because the Leonard Law127 only
“prevent[ed] Stanford from proscribing its students’ speech on
campus,” then Stanford’s anti-harassment policy had to be
enjoined.128
A reasonable solution for private university speech-restrictive
policies is contract law. The “basic legal relation between a student
and a private university or college is contractual in nature . . . .
[R]egulations of the institution made available to the matriculant
become a part of the contract.”129 In interpreting ambiguities in
contractual relations, the court described the commonly used method
of: “The proper standard for interpreting the contractual terms is that
of ‘reasonable expectation--what meaning the party making the
manifestation, the university, should reasonably expect the other party
to give it.”130 The proper standard for interpreting the contract should
be reasonable expectations, and any ambiguities should be construed
against the drafter.131
Under the contract law, “[a] private university may establish
the policies it deems appropriate as long as it executes them in good
125
Id. (Corry v. Leland Stanford Jr. Univ., No. 740309, 1 (Cal. Sup. Ct., Feb. 27,
1995), available at http://
www.ithaca.edu/faculty/cduncan/265/corryvstanford.htm).
126
Id.
127
EDUCATION CODE § 94367(a) (“No private postsecondary educational
institution shall make or enforce a rule subjecting a student to disciplinary sanctions
solely on the basis of conduct that is speech or other communication that, when
engaged in outside the campus or facility of a private postsecondary institution, is
protected from governmental restriction by the First Amendment to the United
States Constitution or Section 2 of Article I of the California Constitution”).
128
Corry, No. 740309, at 35.
129
Sarabyn, supra note 121, at 159 (quoting Ross v. Creighton Univ., 957 F.2d 410,
416 (7th Cir. 1992)).
130
Id.
131
Restatement (Second) of Contracts § 206 (1981) (ambiguities in a standardized
agreement interpreted against the drafter).
71
faith.”132 Students and faculty can expect the university to abide by

its promises as reasonably understood.133 Abiding by the understood
promises helps to strike the proper balance between “[t]he university's
right to act without undue judicial interference and students' right to
receive their degree if they abide by the university's advertised
terms.”134
Applying a contractual framework to written university
policies will respect the universities' right to First Amendment
protections as well as students, faculty, and donors' reasonable
expectations of what the university provides.135 It is my suggestion
that courts hold private colleges and universities to their promises of
free speech because of the importance of First Amendment
protections in the university setting.136
C. Best Solution: “Free Speech Zones” at Public and Private
Universities
Certainly, an individual retains privacy interests at private

universities, but his or her constitutional rights are lessened when
entering a private college. The Courts suggests the speaker’s interests
are the central focus of the free speech analysis.137 However, in some
instances, an individual’s unwillingness to hear speech may outweigh
the speaker’s right to say it.138 The most reasonable solution for both
public and private colleges and universities is to establish a “free
speech zone” at one section of campus.139
132
Sarabyn, supra note 121, at 164.
133
Id.
134
Id.
135
Id. at 181.
136
See id.
137
Webermann, supra note 113, at 553.
138
Id.
139
See generally id. at 566.
72
Hate speech policies are different from free speech zones

because free-speech zones limit student expression to defined areas of
campus, as opposed to eliminating speech altogether.140 Often the
zones permit rallies, demonstrations, or speeches in selected areas
only.141 Theoretically, under the public-forum doctrine, free speech
zones are permissible limitations on speech if they are (1) justified
without reference to content; (2) narrowly tailored to serve a
significant governmental interest; and (3) contains alternative
channels of the information.142 A problem could arise if university
officials were bestowed with discretion to approve speech before it is
placed at the free speech zone because this could lead the government
official to prohibit unpopular, but protected, speech.143 Allowing
university officials to approve speech before it is placed at the free
speech zones would directly contradict the purpose of the zones.
Nonetheless, free speech zones are the most reasonable solution of
balancing the speaker’s interest to free speech and the listener’s
interest of avoiding the speaker’s statements.
X. CONCLUSION
Hate speech laws neither reduce discrimination and violence

nor will they force others to become good, tolerant citizens. Speech-
restrictive policies only aim to silence the speaker from making
distasteful and offensive remarks that may be protected under the
First Amendment’s Free Speech Clause. However, when hate speech
transforms into hate crimes, regulations may be established to limit
this criminal conduct. Violating an individual’s ability to speak freely
without governmental intrusion has the potential of opening
Pandora’s Box to many constitutional infringements.
The right to free speech includes “the right to attempt to
persuade others to change their views, and may not be curtailed
140
FIRE, Speech Code Issues, available at
http://www.thefire.org/index.php/article/5675.html#zones (last visited Nov. 21,
2010) (discussing forms of speech code policies and issues that could possibly
arise).
141
Id.
142
See Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92 (1972).
143
Weberman, supra note 113, at 553.
73
simply because the speaker's message may be offensive to his

audience.”144 Thus, the marketplace of ideas either permits us to
change a person’s thoughts or allow them to live in blissful ignorance.
Imagine walking down the street in DuPont Circle at the
“National Gay Pride Parade” in Washington, D.C. Audience
members are enjoying themselves while listening to Cher, Britney
Spears, and Lady Gaga. Suddenly, the audience hears members of
the nearest Christian church exclaim, “Go home faggot . . . . We do
not want you here.” At this point, something unexpected happened.
With a smile, the audience member turns around and responds “this
‘faggot’ is the Student Bar Association President at North Carolina
Central University School of Law . . . . Thank you very much.”
144
Id. at 716.
74
75

SEXUALLY ORIENTED BUSINESSES IN TEXAS
ROBERT S. MORALES
I. INTRODUCTION
In September 2008, a judge ordered The Penthouse Club in

Houston, Texas to shut down for a year for violating the city’s
sexually oriented business law and being found to be a public
nuisance.1 The judge further ordered that The Penthouse Club could
never again open as a sexually oriented business.2 The Penthouse
Club reopened in September 2009 when the judge’s order expired.3
Prior to the closing, the establishment considered itself a bikini bar4
and not a sexually oriented business since the entertainers wore full
bikini bottoms and latex covering on the nipples. However, the
entertainers did dance on a stage with a large, anchored pole5 where
tips from the customers were solicited and private dances for
customers were performed and contact between the entertainer and
1
Robert Arnold, Reported Mob Boss Hiding in Houston, Click2Houston.com, Sep.
15, 2009, http://www.click2houston.com/news/20920113/detail.html.
2
Id.
3
Id.
4
Id.
5
THE PENTHOUSE CLUB, http://www.penthousehouston.net (last visited March 12,
2011).
76
customer was expected.6 When The Penthouse Club reopened, it did

so by marketing itself as a bikini bar with entertainers that wore latex
covering and full bikini bottoms.7 And again, the entertainers danced
on stage and performed private dances for the customers.8
The Penthouse Club is only one of the approximately 150
businesses in the city of Houston9 that may be in violation of the
city’s sexually oriented business ordinance.10 And along with these
businesses are the thousands of people they employ11 who are also
subject to the city’s ordinances. And this is just Houston, Texas, and
just sexually oriented businesses featuring live entertainment. Indeed,
sexually oriented businesses are a multi-million dollar industry in
Texas12 and thus critical to the State’s economy.
II. BACKGROUND INFORMATION
A sexually oriented business is a type of business that is

specially regulated by the state. It is defined in two different state
codes. According to the Business and Commerce Code, it is a
“nightclub, bar, restaurant, or similar commercial enterprise that
provides for an audience of two or more individuals live nude
entertainment or live nude performances and authorizes on-premises
6
This was especially true in the champagne rooms where the customer would
purchase a bottle of alcohol (usually champagne) at a marked-up price in return for
a private room with the exclusive company of an entertainer of his/her choice.
7
See supra note 2.
8
Id.
9
Matt Stiles, City Plans Crackdown On Some Sex Businesses: Venues Too Close To
'Sensitive' Sites Face Relocation Or Closure As A 1997 Law Gets Enforced, The
Houston Chronicle, April 16, 2007,
http://www.chron.com/disp/story.mpl/front/4717463.html.
10
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 125 (1997), available at
http://library.municode.com/index.aspx.
11
See supra note 9. The Men’s Club alone employed over a 1,000 entertainers in
the year preceding the passing of the ordinance.
12
Id.
77
consumption of alcoholic beverages.”13 And according to the Local

Government Code, a sexually oriented business is a
sex parlor, nude studio, modeling studio, love parlor, adult bookstore,
adult movie theater, adult video arcade, adult movie arcade, adult
video store, adult motel, or other commercial enterprise the primary
business of which is the offering of a service or the selling, renting, or
exhibiting of devices or any other items intended to provide sexual
stimulation or sexual gratification to the customer.14
Indeed, the Local Government Code is more encompassing

than the Business and Commerce Code which the former provides the
local governments with more authority to classify a particular
business as being sexually oriented. Also, the Local Government
Code does not define what nudity is while the Business and
Commerce Code does. Thus, local governments are free to
incorporate whatever definition of nudity that they deem necessary to
accomplish their goal of adequate regulation of sexually oriented
businesses since their grants of authority come from the Local
Government Code15 and not the Business and Commerce Code.
Nonetheless, nudity is defined in the Business and Commerce Code
as “entirely unclothed; or clothed in a manner that leaves uncovered
or visible through less than fully opaque clothing any portion of the
breasts below the top of the areola of the breasts, if the person is
female, or any portion of the genitals or buttocks.”16
The regulation of erotic dancing in sexually oriented
businesses can generally be attributed to Barnes v. Glen Theaters,
Inc.17 In Barnes,18 the Supreme Court held that a statute may regulate
13
TEX. BUS. & COM. CODE ANN. § 102.051(2) (Vernon 2009).
14
TEX. LOC. GOV’T CODE ANN. § 243.002 (Vernon 2009).
15
16
TEX. BUS. & COM. CODE ANN. § 102.051 (1) (Vernon 2009).
17
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
18
Id.
78
this kind of dancing as long as the statute passes the O’Brien Test.19
The Barnes decision was reaffirmed nine years later in City of Erie v.
Pap’s A.M 20 while the authority to regulate sexually oriented
businesses in Texas has been found constitutional since 1982.21
III. CONSTITUTIONAL LANGUAGE
“The Constitution is not an instrument for the government to restrain

the people, it is an instrument for the people to restrain the
government - lest it come to dominate our lives and interests.”
A) Freedom of expression
Despite some people’s repulsion towards sexually oriented
businesses, they are allowed to exist under the United States
Constitution.22 In particular, sexually oriented businesses that feature
live entertainers have been found to be vessels for the form of
expression of nude or erotic dancing.23 And, nude or erotic dancing
has been found to be a constitutionally protected form of expression
by both the Constitutions of Texas24 and the United States.25
“Unlikely though it may seem, the fate of First Amendment freedoms
is irrevocably connected to the ongoing struggle between purveyors
of adult entertainment and defenders of public decency.”26 Indeed,
19
United States v. O'Brien, 391 U.S. 367 (1968). See infra note 41 and
accompanying text.
20
City of Erie v. Pap's A. M., 529 U.S. 277, 301 (2000).
21
Memet v. State, 642 S.W. 2d 518, 522-23 (Tex. App. 1982).
22
Barnes, 501 U.S. at 565-66.
23
Id.
24
Memet, 642 S.W. 2d at 522-23.
25
Barnes, 501 U.S. at 565-66.
26
David L. Hudson Jr., Adult Entertainment and the Secondary-effects Doctrine:
How a zoning regulation may affect First Amendment freedoms, VOL. 2, NO. 1
FIRST REPORTS 1, May 2002.
79
“the adult-entertainment industry tests Americans’ commitment to

freedom of expression.”27 As evidenced by the sheer volume of
litigation and resulting case law, erotic expression is both in public
demand and not well liked by government entities. It is this false
dichotomy of the American populous that has set the stage for the
long, combative, and at times, illogical litigation associated with the
regulation of sexually oriented businesses in the context of freedom
of expression.
The U.S. Constitution
According to the United States Constitution, “Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.”28 However, the
Supreme Court has made it clear that “speech” is a legal term with a
special definition. Indeed, the Supreme Court has found that speech
is more than just “the expression or communication of thoughts or
opinions in spoken words” or “something spoken or uttered;”29 the
Supreme Court has found that speech encompasses expressive
conduct30 and does not include obscenity.31
Originally, obscenity was found whenever “the dominate
theme of the material taken as a whole appeals to a prurient interest in
sex, the material was patently offensive because it affronts
contemporary community standards relating to the description or
representation of sexual matters, and the material is utterly without
redeeming social value.”32 Of course, the burden of proving the
material to be utterly without redeeming social value proved to be
27
Id. at 27.
28
U.S. CONST. amend. I.
29
30
Barnes, 501 U.S. at 566.
31
Roth v. United States, 354 U.S. 476, 484-85 (1957).
32
Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966).
80
“virtually impossible.”33 Thus, the bar was lowered to where a

Victorian prosecutor must only prove that “the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value”
instead of having to prove the material to be “utterly without social
value.”34 Thus, the material must now have a serious social value as
opposed to just having some social value. Indeed, works of serious
social value receive First Amendment protection “regardless of
whether the government or a majority of the people approve of the
ideas these works represent.”35 Of course, social value is assigned by
the majority of the people which in turn elects the government. Thus,
works of serious social value only receive First Amendment
protection if the government or a majority of the people approve of
the ideas these works represent.
As mentioned above, the Supreme Court has found that “nude
dancing of the kind sought to be performed here is expressive conduct
within the outer perimeters of the First Amendment, though we view
it as only marginally so.”36 Even though the Supreme Court found
that this type of expressive conduct is one of the lowest forms of
expressive conduct, it is still expressive conduct and thus falls under
the freedom of speech protections guaranteed by the First
Amendment; and a “law directed at the communicative nature of
conduct must, like a law directed at speech itself, be justified by the
substantial showing of need that the First Amendment requires.”37
Thus, for a statute that regulates erotic dancing to be held
constitutional, it must pass the four-prong intermediate scrutiny test
established by O’Brien.38
33
Miller v. California, 413 U.S. 15, 22 (1973).
34
Id. at 24.
35
Id. at 34.
36
Barnes v. Glen Theatre, Inc. 501 U.S. 560, 566 (U.S. 1991).
37
Texas v. Johnson, 491 U.S. 397, 406 (1989) (quoting Cmty. for Creative Non-
Violence v. Watt, 703 F.2d 586, 622 (D.C. Cir. 1983) (Scalia J., dissenting)).
38
Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).
81
According to O’Brien, “a public nudity ordinance that

incidentally impacts protected expression should be upheld if”39 it
meets the following conditions:
(1) if it is within the constitutional power of the government;
(2) it furthers an important or substantial government interest;
(3) the governmental interest is unrelated to the suppression of free

expression; and
(4) the incidental restriction on first amendment freedoms is no

greater than is essential to the furtherance of that interest.40
These requirements are easily met by enacting governments

when the governmental interest is the relief of secondary effects.41
Secondary effects usually include prostitution, assault, drug dealing,42
and the lowering of property values.43 However, these secondary
effects must be related to the actual regulation.44
One common method of restricting sexually oriented business
is with laws that regulate alcohol consumption and sales.45 Indeed, it
is so common that the courts have developed a test to “conclude
[whether] a liquor regulation prohibiting the sale or consumption of
alcohol on the premises of adult entertainment establishments is
constitutional.”46 According to Ben’s Bar, a restriction on the sale
39
Id.
40
Id.
41
Id. at 555-56.
42
Id. at 557.
43
See Smartt v. City of Laredo, 239 S.W. 3d 869, 872 (Tex. App. 2007).
44
Williams v. City of Fort Worth, 782 S.W. 2d 290, 297 (Tex. App. 1989).
45
Ben’s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 705 (7th Cir. 2003).
46
See Id. at 722.
82
and/or consumption of alcohol in a sexually oriented business is

constitutional if:
(1) the State is regulating pursuant to a legitimate
governmental power,
(2) the regulation does not completely prohibit adult
entertainment,
(3) the regulation is aimed not at the suppression of
expression, but rather at combating the negative
secondary effects caused by adult entertainment
establishments, and
(4) the regulation is designed to serve a substantial
government interest, narrowly tailored, and
(a) reasonable alternative avenues of
communication remain available, or
(b) alternatively, the regulation furthers
an important or substantial government
interest and the restriction on expressive
conduct is no greater than is essential in
furtherance of that interest.47
Although at first glance this test may seem to favor
unconstitutionality, in reality most of the elements have already been
adjudicated in favor of the government before any litigation has taken
place. Indeed, the government’s “regulation of alcohol sales and
consumption in inappropriate locations is clearly within its general
police powers.”48 And inherent to the regulation of alcohol
consumption is the fact that the scope of the regulation lies in the
availability of alcohol and not the per se regulation of expressive
conduct.49 Thus, the Court has found that such a regulation does not
violate the First Amendment as the regulation does not prohibit a
47
Id.
48
Id.(emphasis added).
49
Id. at 723.
83
person’s right to indulge in alcohol or enjoy nude or semi-nude

dancing, it only prevents them from doing both at the same time and
place.50 However, the Court was not without empathy towards the
affected businesses as they observed that the:
[D]eprivation of alcohol does not prevent the observer
from witnessing nude or semi-nude dancing, or the
dancer from conveying an erotic message. Perhaps a
sober patron will find the performance less tantalizing,
and the dancer might therefore feel less appreciated
(not necessarily from the reduction in ogling and cat
calls, but certainly from any decrease in the amount of
tips she might otherwise receive.51
The Texas Constitution
According to the Texas Constitution, [E]very person shall be at
liberty to speak, write or publish his opinions on any subject, being
responsible for the abuse of that privilege; and no law shall ever be
passed curtailing the liberty of speech or of the press. In prosecutions
for the publication of papers, investigating the conduct of officers, or
men in public capacity, or when the matter published is proper for
public information, the truth thereof may be given in evidence. And
in all indictments for libels, the jury shall have the right to determine
the law and the facts, under the direction of the court, as in other
cases.52
Although, the protection of free speech in the Texas
Constitution seems more comprehensive than the protections found in
the U.S. Constitution, the Texas Courts of Appeals has not found this
to be the case.53 Indeed, the “Texas Supreme Court has held that free
speech rights under the Texas Constitution may be broader than those
50
Id. at 728.
51
Id.
52
TEX. CONST. art. I, § 8.
53
Kaczmarek v. State, 986 S.W. 2d 287, 291 (Tex. App. 1999).
84
provided by the Federal Constitution in certain cases.”54

Unfortunately, the Court has explicitly held that any broader Texas
free speech protections do not extend to exotic dancing.55 “The basis
for these holdings is that there is less interest in protecting material on
the borderline between pornography and artistic expression than in
free dissemination of the ideas of social and political significance.”56
Indeed, the last case that provided any serious analysis of whether the
Texas Constitution proffers greater free speech protections than does
the U.S. Constitution was the 1995 Woodall case.57 “Since Woodall
was written, neither the Texas Supreme Court nor lower state courts
have issued any rulings undermining its conclusion.”58
In Woodall, the Adult Businesses argued that the Davenport59
case had extended the greater free speech protection found in the
Texas Constitution to sexually oriented business.60 Thus, they argued
that the ordinance must be analyzed under a strict scrutiny test under
the Texas Constitution instead of the intermediate scrutiny test under
the U.S. Constitution.61 If an ordinance’s constitutionality is tested
under strict scrutiny, then the government would have to prove that
the ordinance protects a compelling government interest and uses the
least restrictive means of protecting this interest.62 However, the
Court held that Davenport “appl[ied] only to prior restraints and not
54
Woodall v. City of El Paso, 49 F.3d 1120, 1127 (5th Cir. 1995) (emphasis added)
(Generally political protest speech).
55
Kaczmarek, 986 S.W.2d at 291.
56
Id. (quoting 2300, Inc. v. City of Arlington, 888 S.W.2d 123, 127 n.3 (Tex. App.
1994)).
57
N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 177 (5th Cir. 2003).
58
Id.
59
Davenport v. Garcia, 834 S.W.2d 4, 11-17 (Tex.1992).
60
Woodall, 49 F.3d at 1127.
61
Id.
62
Id.
85
to time, place and manner restrictions in land use restrictions of

sexually oriented businesses.”63 Finding no case on point post
Davenport to support the argument by the Adult Businesses, the
Court relied on the prior case Lindsay64 to hold that the ordinance
must only protect a substantial government interest without
unreasonably limiting alternative avenues of communication.65 In
holding that the Texas Constitution requires the same standard as
under the U.S. Constitution, the Court expressed its bias against the
Adult Businesses by stating that “[i]f the intermediate Texas courts
are wrong about Texas law in this area, we are content to wait until
the Texas Supreme Court corrects their error.”66
Accordingly, under Texas law, “a property owner has no
constitutionally protected right to operate a sexually oriented
business.”67 However, the erotic message being conveyed within the
sexually oriented business is constitutionally protected and “the
government may not prohibit expression simply because it disagrees
with its message” regardless of “the particular mode in which one
chooses to express an idea.”68 This is especially significant
considering the substantial bias against sexually oriented businesses
in Texas. From the onset, the “evidentiary burden for a State
attempting to justify a substantial governmental interest is very
light.”69 However, the courts do require some evidence to justify a
substantial governmental interest.70 Thus, when “there simply is no
evidence,” then “the State has not met the minimal evidentiary burden
63
Id.
64
Lindsay v. Papageorgiou, 751 S.W.2d 544, 550 (Tex. App. 1988).
65
Woodall, 49 F.3d at 1127-28.
66
Id. at 28.
67
Hang On III, Inc. v. Gregg County, 893 S.W. 2d 724, 726 (Tex. App. 1995).
68
Texas v. Johnson, 491 U.S. 397, 416 (1989).
69
Illusions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 313 (5th Cir. 2007).
70
Id. at 312.
86
placed upon it.”71 Indeed, the State’s burden is so low that the only
way that it cannot meet its burden is by presenting absolutely no
evidence at all; the “standard of constitutional scrutiny. . . is simply
whether [the ordinance] addressed secondary effects of adult speech,
as demonstrated by the legislative record submitted by the City.”72
Accordingly, “the City need not [even] demonstrate that the City
Council actually relied upon evidence of negative secondary effects
when it enacted [the ordinance].”73 In fact, the courts have made it
clear how little evidence they need from the government by noting
how unfair it would be to the government “[t]o require the legislature
to show evidence of negative secondary effects and of the new
regulations efficacy requires too much of the City.”74 Indeed, the
ordinances’ expected effectiveness may be proven by common sense
alone; there is no need to prove “empirically[,] that SOB ordinances
will successfully reduce crime.”75 Thus, the “City is entitled to
experiment with distance regulations”76 whether it is to the detriment
of sexually oriented businesses or not. And given the disposition of
the courts toward sexually oriented businesses, the experimentation
with distance regulations is probably expected to be to the detriment
of sexually oriented businesses.
B) Equal Protection Clause
“We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness.”77 Although this statement was made as a justification
for the creation of the United States, it wasn’t a truthful statement.
71
Id. at 313.
72
N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 174 (5th Cir. 2003).
73
Id. at 175.
74
Id.
75
Id. at 180.
76
Id. at 181.
77
The Declaration of Independence para. 2 (U.S. 1776).
87
Had it been, then slavery wouldn’t have been tolerated in the United
States. Thus, not all men were created equal. And if all men weren’t
considered to be equal, then certainly women were excluded from the
creation equality fabrication. Certainly, men and women are
physically different and apparently these differences are not equal in
the eyes of the law. This is especially true when it comes to the chest
area. Indeed, “[l]aws that target female toplessness include zoning
ordinances, public exposure or lewdness ordinances and statues,
ordinances regulating sexually-oriented businesses, law aimed at nude
sunbathing, regulations of business and liquor licenses, and obscenity
statutes.”78 These laws highlight the inequality of men and women by
showing that a male’s viewpoint of the female form wins out to the
female viewpoint to her own body.79 “Specifically, it
demonstrates that courts view the breast from a distinctly
heterosexual male perspective, and from this perspective they
conclude there is a real difference between men and women. While
courts identify this difference as biological, their reasoning reveals
the difference is socially imposed.”80
The U.S. Constitution
According to the U.S. Constitution, “equality of rights under
the law shall not be denied or abridged by the United States or by any
State on account of sex.”81 Actually, that is how the U.S.
Constitution would have read had the Equal Rights Amendment been
adopted. As it was not, women do not receive equal rights under the
law, but only equal protection under the law. “It is clear that gender
has never been rejected as an impermissible classification in all
instances.”82 Thus, we have the lesser standard of equal protection
78
Virginia F. Milstead, Forbidding Female Toplessness: Why “Real Difference”
Jurisprudence Lacks “Support” and What Can Be Done About It, 36 U. TOL. L.
REV. 273, 276-77 (2005).
79
Id. at 282-83.
80
Id. at 279.
81
Equal Rights Amendment, H.R.J. Res. 208, 92 Cong. (1972).
82
Rostker v. Goldberg, 453 U.S. 57, 69 n.7 (1981).
88
and that is granted by the 14th Amendment to the U.S. Constitution

which states:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.83
Indeed, laws regulating sexually oriented businesses are
subject to equal protection and due process84 challenges. The courts
have found that administrative hearings are subject to procedural due
process or any such adverse ruling is subject to reversal.85 Moreover,
sections of sexually oriented business ordinances have been held to
violate the equal rights provisions.86
For a local ordinance to survive a gender-based discrimination
challenge, it “must serve important governmental objectives and must
be substantially related to [the] achievement of those objectives.”87
This is commonly known as the intermediate scrutiny standard of
review.88 Here, the courts have made it clear that “the protection of
public health and safety represents an important function of state and
local governments.”89 Consequently, the prevention of secondary
83
U.S. CONST. amend. XIV, §1
84
U.S. CONST. amend. XIV, §1
85
City of Arlington v. Centerfolds, 232 S.W.3d 238, 249 (Tex. App. 2007).
86
Williams v. City of Fort Worth, 782 S.W.2d 290, 298 (Tex. App. 1989).
87
Craig v. Boren, 429 U.S. 190, 197 (1976).
88
WIKIPEDIA, Intermediate scrutiny,
http://en.wikipedia.org/wiki/Intermediate_scrutiny (as of Oct. 11, 2010, 01:23
GMT).
89
Craig, 429 U.S. at 199-200.
89
effects has also been recognized as an important government

objective that can withstand gender-based discrimination.90 This is
true notwithstanding the reality that the evidence offered by local
governments is generally based on weak statistics and “[i]t is
unrealistic to expect . . . members of the judiciary . . . to be well
versed in the rigors of experimental or statistical technique.”91
Indeed, “proving broad sociological propositions by statistics is a
dubious business, and one that inevitably is in tension with the
normative philosophy that underlies the Equal Protection Clause.”92
However, even if the courts are willing to accept dubious statistics in
regards to sexually oriented business regulation, they also rely on
statistics that conclude that there is no evidence of secondary effects
to strike down these regulations.93 Thus, if sexually oriented
businesses can show that “local studies show no evidence of negative
secondary effects connected with [their] clubs,” then they may
triumph in their cause.94 In reality, sexually oriented businesses may
want to go further and actually prove that the neighborhood actually
improved while a sexually oriented business was located in the
community as the businesses did in Flanigan’s Enterprises, Inc.95
There, the sexually oriented businesses showed “unequivocally that
property values in neighborhoods adjoining the Clubs have increased
during the time the Clubs have been in existence, and that
surrounding buildings show[ed] no signs of blight, or lack of physical
maintenance.”96 Moreover, it was also proven that there was “greater
reported crime connected with establishments that served alcohol but
did not feature adult entertainment” took place.97
90
Buzzetti v. City of New York, 140 F.3d 134, 142-143 (2nd Cir. 1998).
91
Craig, 429 U.S. at 204.
92
Id.
93
Flanigan’s Enterprises, Inc. v. Fulton County, 242 F.3d 976, 979 (11th Cir. 2001).
94
Id. at 978.
95
Id. at 986.
96
Id.
97
Id.
90
Nonetheless, the Court has actually stated that the government must
have an exceedingly persuasive justification to survive a gender-based
equal protection claim.98 In United States v. Virginia, the State was
trying to argue that it could exclude female students from an all-male
public military institution.99 Acknowledging “a long and unfortunate
history of sex discrimination,”100 the Court noted that the Equal
Protection Clause requires that women be given an “equal opportunity
to aspire, achieve, participate in and contribute to society based on
their individual talents and capacities.”101 Thus, “[t]he burden of
justification is demanding and it rests entirely on the State” to prove
that the purpose behind the gender-based discrimination is
exceedingly persuasive.102 Thus, the reasoning must be “genuine, not
hypothesized or invented post hoc in response to litigation. And it
must not rely on overbroad generalizations about the different talents,
capacities, or preferences of males and females.”103 However, the
Court also recognized that there were “inherent differences” between
males and females and society has “come to appreciate [these
inherent differences], [they] remain cause for celebration, but not for
denigration of the members of either sex or for artificial constraints
on an individual's opportunity.”104
Now, the exceedingly persuasive justification standard may
seem like a heightened level of scrutiny, but the Court has found that
the difference between the effect of seeing male breasts and seeing
female breasts is a “self-evident truth about the human condition” and
thus not required to be proven in order to justify gender-based
discrimination in an ordinance.105 Thus, the courts have found that
98
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
99
United States v. Virginia, 518 U.S. 515, 519 (1996).
100
Frontiero v. Richardson, 411 U.S. 677, 684 (1973).
101
Virginia, 518 U.S. at 532.
102
Id. at 533.
103
Id.
104
Id.
105
Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1257 (5th Cir. 1995).
91
“in our culture the public display of female breasts will have far
different secondary effects than the public display of male breasts.”106
Indeed, “the public reactions to the exhibition of the female breast
and the male breast are highly different.”107 The “public exposure of
the female breast is rare under the conventions of our society, and
almost invariably conveys sexual overtones.”108 As such, “numerous
courts have recognized that the societal impacts associated with
female toplessness are legitimate bases for regulation.”109 Likewise,
the government must prove “only that regulation of female breasts is
substantially related to an important governmental interest, not that
the exposure of male breasts is so related.”110 Therefore, these
ordinances will be upheld as “[s]tatutes that fairly can be seen as
responding to clear sexual differences between men and women are
among those laws that courts have upheld, despite the gender-based
classification contained in them.”111 Thus, the courts have established
that gender-based discrimination related to sexually oriented
businesses is constitutional under the heightened intermediate
scrutiny framework.
The Texas Constitution
According to the Texas Constitution, “equality under the law
shall not be denied or abridged because of sex, race, color, creed, or
national origin.”112 The Texas Equal Rights Amendment was
“designed expressly to provide protection which supplements the
federal guarantees of equal treatment.”113 Accordingly, “the Equal
106
Buzzetti v. City of New York, 140 F.3d 134, 138 (2nd Cir. 1998).
107
Id. at 143.
108
Id.
109
Id. at 142.
110
SDJ, Inc. v. Houston, 837 F.2d 1268, 1279 (5th Cir. 1988).
111
Buzzetti, 140 F.3d at 141.
112
TEX. CONST. art. I, § 3a
113
Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002).
92
Rights Amendment is more extensive and provides more specific

protection than . . . the United States [Constitution].”114 Thus, it
“elevates sex to a suspect classification, and is therefore afforded
maximum constitutional protection.”115 As such, an ordinance must
have a compelling state interest to be constitutional.116 And, “[o]nce
it has been determined that the law discriminates against one sex
clearly on the basis of gender, the discrimination is allowed only
when the proponent of the discrimination can prove that there is no
other manner to protect the state's compelling interest.”117 For
example, a regulation that is worded so as to where “a male may
dance topless within the restricted area while a female cannot, a male
may model topless while a female cannot, and the breast of a male
may be pictured or described whereas the breast of a female
cannot”118 must have a compelling state interest to severely restrict
the female body while providing a liberating forum for the male form.
Texas has, however, found that sexually oriented business
ordinances are subject to the Texas Equal Rights Amendment.119 The
Equal Rights Amendment reads that “[e]quality under the law shall
not be denied or abridged because of sex, race, color, creed, or
national origin.”120 When a violation of the Equal Rights Amendment
is alleged, the courts have analyzed the challenged law under a three-
step process.121 First, they look at “whether equality under the law
has been denied.”122 Second, they look at “whether equality was
114
In Interest of McLean, 725 S.W.2d 696, 698 (Tex. 1987).
115
Maloy v. City of Lewisville, 848 S.W.2d 380, 384 (Tex. App. 1993).
116
Id.
117
Id.
118
Id.
119
120
TEX. CONST. art. I, § 3a.
121
Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002).
122
Id.
93
denied because of a person's membership in a protected class of

sex.”123 If so, the law will only be upheld as constitutional if it is
“narrowly tailored to serve a compelling governmental interest.”124
However, some courts have disagreed with those courts that have held
“that the Texas Equal Rights Amendment was intended to apply to an
ordinance prohibiting female topless dancing in residential
neighborhoods.”125 Indeed, these courts have even gone as far as to
chastise their more protective judicial brethren by denying “that a
constitutional provision enacted to insure equality under the law to all
Texans, regardless of gender, race, creed, or national origin, should be
utilized to strike down an ordinance limiting the locations where
female topless dancing is permitted.”126
In Williams, the sexually oriented business ordinance of Fort
Worth was found to discriminate against females since clubs that
featured female topless dancers were subject to geographical
restrictions while those featuring male topless dancers were not.127
Here, the court found that “there was no evidence that exposure of the
breasts of male performers in bars which regularly feature such
entertainment is not considered sexually oriented.”128 Thus, the Court
found that it “is not authorized…to take judicial notice of the concept
that the breasts of female topless dancers, unlike their male
counterparts, are commonly associated with sexual arousal.”129 Thus,
the court held that
“[b]ecause the ordinance discriminates against women
on its face in its definition of nudity, and because the
proponents of the ordinance have produced no proof
123
Id.
124
Id.
125
Schleuter v. City of Fort Worth, 947 S.W.2d 920, 925 (Tex. App. 1997).
126
Id.
127
128
Id. at 297.
129
Id.
94
that they cannot protect their interest in preventing

secondary neighborhood effects without such
discrimination … the “State of Nudity” definition,
relating to female breasts, is null and void in its
application to adult nightclubs and bars.”130
However, the courts have shown that the government has to
overcome a low threshold of proof to satisfy its burden. The courts
have found that evidence that “(1) physiological and sexual
distinctions exist between the male and female breast; (2) female
breasts differ both internally and externally from male breasts; and (3)
the female breast, but not the male breast, is a mammary gland” is
sufficient for the government to justify its discrimination based on
gender.131 Therefore, the government can meet its burden by simply
presenting expert testimony that the difference between male and
female breasts is consistent with what is medically known about
human sexual responses.132 Thus, the courts have made it clear that
there are real physical differences between men and women and these
differences are certainly not equal. These physical differences create
different psychological responses and those responses that men
produce must be controlled by the regulation of women. Inescapably,
it is far too difficult to regulate men in this capacity, so Texas has
imposed society’s burden on women as society has historically done
throughout our nation’s history.
IV. LOCAL ORDINANCES
According to the Texas Local Government Code,133 local

governments are authorized to regulate sexually oriented businesses
to remedy the “decline of residential and business neighborhoods and
the growth of criminal activity.”134 More specifically, “[a]
130
Id. at 298.
131
MJR’s Fare of Dallas, Inc. v. City of Dallas, 792 S.W. 2d 569, 575 (Tex. App.
1990).
132
Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256 (5th Cir. 1995).
133
TEX. LOC. GOV’T CODE ANN. § 243.001(b) (Vernon 2009).
134
TEX. LOC. GOV’T CODE ANN. § 243.001(a) (Vernon 2009).
95
municipality by ordinance or a county by order of the commissioners

court may adopt regulations regarding sexually oriented businesses as
the municipality or county considers necessary to promote the public
health, safety, or welfare.”135 However, this seemingly unbridled
delegation of authority over sexually oriented businesses is limited to
location and density restrictions.136 And even here, the restrictions
are generally confined to licensing and permit requirements.137 Also,
the county is expressly prohibited from regulating a sexually oriented
business located within the corporate limits of a municipality.138
Moreover, a further restriction is placed on the local governments.
They may not set the punishments for violations of their ordinances as
these have already been set by the Code.139 As such, “home rule
cities may not pass a municipal ordinance that conflicts with the
constitution or general laws of the state.”140 However, a violation of a
sexually oriented business ordinance may be enjoined in district
court141 and/or a person may be charged with a Class A
misdemeanor.142 Actually, the use of these two different remedies is
essentially a tool for the prosecutor as a Class A misdemeanor must
be heard in a county court since the district court lacks jurisdiction
over Class A misdemeanors.143 Thus, the prosecutor is given both the
county court and district court system to obtain a favorable
disposition.
135
TEX. LOC. GOV’T CODE ANN. § 243.003(a) (Vernon 2009).
136
137
138
TEX. LOC. GOV’T CODE ANN. § 243.003(c) (Vernon 2009).
139
140
Robinson v. City of Longview, 936 S.W.2d 413, 416 (Tex. App. 1996).
141
TEX. LOC. GOV’T CODE ANN. § 243.010(a) (Vernon 2009); TEX. BUS. & COM.
CODE ANN. § 102.004 (Vernon 2009).
142
TEX. LOC. GOV’T CODE ANN. § 243.010(b) (Vernon 2009); TEX. BUS. & COM.
CODE ANN. § 102.005 (Vernon 2009).
143
Flores v. State, 33 S.W. 3d 907, 915 (Tex. App. 2007).
96
Houston City Ordinance

The City of Houston, Texas, defines an enterprise as an “adult
bookstore, adult cabaret, adult encounter parlor, adult lounge, adult
modeling studio, adult movie theatre.”144 The city restricts an
enterprise from being “located within 1,500 feet of any school,
church, public park, or licensed day-care center; 1,000 feet of any
other enterprise for which there is a permit; or within a 1,500 feet
radius of an area that is more than 75% residential in character.”145
The entertainers of an enterprise are also regulated by city
ordinance. Entertainers are prohibited from “touch[ing] a customer or
the clothing of a customer while engaging in entertainment or while
exposing any specified anatomical areas or engaging in any specified
sexual activities.”146 They are further prohibited from “approach[ing]
closer than three feet to any customer while engaging in
entertainment or while exposing any specified anatomical areas or
engaging in any specified sexual activities.”147 And lastly,
entertainers are prohibited from “engag[ing] in entertainment or
[exposing] any specified anatomical areas or engag[ing] in any
specified sexual activities in the presence of a customer in any
separate area … which entry or access is blocked or obscured by any
door, curtain or other barrier separating entry.”148
ARLINGTON CITY ORDINANCE
The City of Arlington, Texas, defines a sexually oriented

business as a “Sexually Oriented Arcade, Sexually Oriented
Bookstore or Sexually Oriented Video Store, Sexually Oriented
Cabaret, Sexually Oriented Motel, Sexually Oriented Theater,
Sexually Oriented Motion Picture Theater, Escort Agency, Nude
144
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 121 (1997), available at
145
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 125 (1997).
146
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. VIII, § 258(a) (1997).
147
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. VIII, § 258(b) (1997).
148
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. VIII, § 258(c) (1997).
97
Model Business or Sexual Encounter Center.”149 The city restricts a

sexually oriented business from operating “within 1,000 feet of a
church; a public or private elementary or secondary school; a
boundary of a residential district; a boundary of the Entertainment
District; a licensed day care center; a public park; a residential
property; or another sexually oriented business.”150 However, this
geographical restriction can be amended to 500 feet if “there is a
controlled access highway between the district boundary/property line
and the Sexually Oriented Business.”151
The employees of a Sexually Oriented Cabaret must also
adhere to city ordinances. An employee “while appearing in a state of
nudity, commits an offense if the employee touches a customer or the
clothing of a customer.”152 An employee is further prohibited from
“permit[ing] any customer access to an area of the premises not
visible from the manager's station or not visible by a walk through of
the premises without entering a private, exclusive, closed, curtained,
or otherwise screened area, excluding restrooms.”153 Actually, the
city has also enacted regulations against customers as well.
Customers are prohibited from “touch[ing] an employee appearing in
a state of nudity or the clothing of an employee appearing in a state of
nudity.”154
149
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. II
(2007), available at
http://www.arlingtontx.gov/citysecretary/pdf/codeofordinances/SOBChapter.pdf.
150
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. III, §
01(B)-(C) (2007).
151
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. III, §
01(B) (2007).
152
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. V, §
01(A) (2007).
153
01(C) (2007).
154
01(B) (2007).
98
LAREDO CITY ORDINANCE
The City of Laredo, Texas, defines a sexually oriented

business as “an adult arcade, adult book store or adult video store,
adult cabaret, adult motel, adult motion picture theater, adult theater,
escort agency, nude model studio or sexual encounter center.”155 The
city restricts a sexually oriented business from operating “within
1,000 feet of a church; a public or private elementary or secondary
school; a boundary of any residential district; a public park; a
residential area, or within 1,500 of another sexually oriented
business.”156
The city also places restrictions on the entertainers
themselves. An entertainer is prohibited from “conduct[ing] any
dance performance, or exhibition, in or about the nonstage area of the
"adult cabaret" unless that dance performer, or exhibition, is
performed at a distance of no less than four (4) feet of the patron or
patrons for whom the entertainment is being provided.”157
CONCLUSION
Although the cities of Houston, Arlington, and Laredo

encompass different geographical areas regions, they have
remarkably similar views when it comes to the regulation of sexually
oriented businesses.158 They feel that sexually oriented businesses
should be segregated from places of worship, places where children
are generally found, and places where people live by buffers of 1,000
to 1,500 feet.159 And they are so harmful, in fact, that they must even
be segregated from each other.160 Indeed, they are even singularly
155
LAREDO, TEX., CODE OF ORDINANCES, ch. 18A, art. I, § 2 (2002), available at
156
LAREDO, TEX., CODE OF ORDINANCES, ch. 18A, art. III, § 45 (2002).
157
LAREDO, TEX., CODE OF ORDINANCES, ch. 18A, art. III, § 52 (2002).
158
See supra notes 146-59.
159
Id.
160
Id.
99
minded when it comes to how they regulate the interactions between

the entertainer and customer.161 They are in unison when it comes to
the belief that entertainers should not have physical contact with their
paying customers.162 They also agree that the best way to prevent
human contact is with a “no-touch rule” with a “buffer zone” of three
to four feet in between two consenting, contracting adults.163 Thus,
even though Texas has delegated its authority to regulate sexually
oriented businesses to the local governments, it seems that
municipalities are still in accord when it comes to theories of
regulations.164 Indeed, “the frame of mind in the local legislatures
seems to be exerted to prevent the federal constitution from having
any good effect.”165
The so-called secondary effects166 of sexually oriented
businesses that do not involve freedom of expression issues per se are
considered an important governmental interest that must be protected.
Indeed, the evils of prostitution, assaults, and drug dealing167 should
be mitigated whenever possible. Therefore, local governments should
be allowed to pass ordinances pertaining to all of the avatars of these
evils. Indeed, local governments should also be allowed to regulate
military installations and university systems as these are well known
havens of prostitution, assaults, and drug-dealings. Thus, physical
contact between service members and college students should be
strictly regulated to prevent these evils.168 In fact, these societal ills
should be criminalized directly. Prostitution should be made illegal in
161
Id.
162
Id.
163
See supra notes 149 and 159.
164
165
As made famous by Henry Knox.
166
Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).
167
Id. at 557.
168
Curtailing the sexual activity of university students and service members will
certainly be difficult if not impossible in practice.
100
Texas as should the act of assaulting another individual and the

distribution of illegal drugs. Perhaps if these secondary effects were
made primarily illegal, then the need for ridiculous city ordinances
regulating such things as the minimum distance between an
entertainer and a paying customer169 would become unnecessary. Of
course, these ordinances regulating sexually oriented businesses are
so irrational that they encourage scofflaws170 as illustrated by The
Penthouse Club example.171 Thus, the actual secondary effect of
sexually oriented business ordinances is a disregard of the law.172 A
person that walks into an enterprise173 in Houston, Texas, will see
plenty of sights, but adherence to the three foot rule174 will certainly
not be one of those. Therefore, regulations of sexually oriented
businesses should not focus on the thinly veiled regulation of the
actual conduct that is associated with the expressive form of erotic
dancing, but should focus on reasonable time and place175 restrictions.
If not, the government runs the danger of over-regulation which may
lead to the opposite effect than they seek. Indeed, “[t]he more
prohibitions you have, the less virtuous people will be.”176
Even in a traditionally conservative state such as Texas,
sexually oriented businesses are big business.177 Indeed, “[t]here is a
distinct market for up-close, nude, alcohol-enhanced table dances.
Law-abiding customers envision their liberty as encompassing the
169
170
Fantasy Ranch, 459 F.3d at 553.
171
See supra note 2.
172
Fantasy Ranch, 459 F.3d at 553.
173
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 121 (1997).
174
See supra note 149.
175
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986).
176
LAO TZU, TAO TE CHING 57 (Stephen Mitchell, trans., Harper Perennial 2006)
(1988).
177
See supra note 12.
101
right to spend money in the erotic entertainment economy.”178 The

contents housed in sexually oriented businesses have been found to be
valid179 and thus sexually oriented businesses are likely to continue to
exist. Therefore, the laws that regulate sexually oriented businesses
must recognize this fact and be implemented accordingly. The
regulations must not only be reasonable, but above all practical. If
not, the laws will simply be ignored. Indeed, Texas has valid
governmental interests in protecting against the detriment of “public
health, safety, and welfare,”180 but it still needs to make reasonable
concessions into accomplishing its objectives lest the laws become
unjust. Lex Inuista Non Est Lex.181
178
DFW Vending v. Jefferson County, 991 F. Supp. 578, 586 (E.D. Tex. 1997).
179
180
181
As made famous by Augustine and translated as “an unjust law is no law at all”.
102
103
PADILLA v. KENTUCKY: KEEPING UP WITH SOCIETAL

CHANGES –
U.S. IMMIGRATION LAW PROPOSALS FOR LEGAL
PROFESSIONALS IN AN EFFORT TO AVOID LEGAL
MALPRACTICE BECAUSE OF INEFFECTIVE ASSISTANCE
OF COUNSEL
Nelda V. Trevino*
I. INTRODUCTION
This legal scholarly writing is illustrative of a combination of
two legal pedagogic templates: a casenote and an article. It can be
classified as a casenote because it analyzes Padilla v. Kentucky,1 a
recent U.S. Supreme Court decision intimately tied to immigration
law and proper Sixth Amendment rights afforded to non-citizens.2 On
the other hand, this writing can also be described as an article
because, with Padilla standing as its basis and foundation, it offers
new proposals and ideas in an effort to ameliorate the transforming,
ever-changing and cumbersome immigration law practice of the U.S.
*
I would like to express my most sincere gratitude to all those who gave their
assistance and support in completion of this paper. I want to thank Professor
Rebecca Stewart for her guidance, advice and encouragement. I would also like to
thank Professor Imran B. Mirza, for it was his enthusiasm and passion for
immigration law that inspired and motivated me to write this paper. Also, a special
thank you to the counsel mentioned from south Texas (Rio Grande Valley region)
for their invaluable time and interviews. Finally, I would like to thank my parents
for their encouragement and faith in my pursuit of the study of law, and, above all,
God – for His guidance, mercy and unfailing love.
1
Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
2
Adonia R. Simpson, Judicial Recommendations Against Removal: A Solution to
the Problem of Deportation for Statutory Rape, 35 NEW ENG. J. ON CRIM & CIV.
CONFINEMENT 489, 489-90 (2009) (“Non[-]citizens include immigrants who are
lawful permanent residents (LPRs) and undocumented persons, as well as those
temporarily in the United states for a fixed period of time, such as business visitors,
tourists, students and temporary workers.” ).
104
Current immigration law3 dictates that deportation4 is the

mandatory result of many criminal convictions, including minor
crimes5. An estimated 150,000 non-citizens (i.e., immigrants) will be
deported by the end of next year because of convictions resulting in
mandatory deportation.6 Most non-citizens, and their respective
3
Interview with Carlos Garcia, Attorney at Law, Law Offices of Raul García and
Associates, McAllen, Tex. (Jul. 16, 2010) (explaining that when a non-citizen
defendant is criminalized, the legal process generally includes a charge, conviction
(i.e., trial), and sentence; defendant then serves sentence and is subsequently
brought before an immigration judge who determines deportation matters,
specifically “unlawful” entry and/or legal “removal” proceedings; during those
proceedings, the non-citizen defendant has no right to counsel); see also Abel v.
U.S., 362 U.S. 217, 237 (1960) (illustrating that deportation proceedings are civil
proceedings to which the constitutional protections applicable to criminal
prosecutions do not apply).
4
See Maureen A. Sweeney, Fact or Fiction: The Legal Construction of
Immigration Removal for Crimes, 27 YALE J. ON REG. 47, 51 (Winter 2010) (“Tens
of thousands of individuals are removed from crimes each year, many after entering
guilty pleas without any knowledge that their plea would lead directly to their
removal and permanent banishment from the United States, with no possibility for
deviation, equity or mercy.”).
5
E.g., Brief for Asian American Justice Center, et. al. as Amici Curiae Supporting
Petitioner, Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (No. 09-60),
(discussing the deportation case of Jerry Lemaine: Lemaine, a legal permanent
resident, was caught with one marijuana cigarette, and pursuant to the advice of a
legal aid lawyer, plead guilty. Under state statutes, the penalty was only a $100
fine; however, his guilty plea led to a sentence of three years behind bars. Lemaine
is currently battling deportation to Haiti - a country he left at age three); E.g., Bryan
Lonegan, American Diaspora: The Deportation of Lawful Residents from the
United States and the Destruction of their Families, 32 N.Y. U. REV. L. & SOC.
CHANGE 55, 55-56 (2007) (illustrating the deportation case of Hemnauth Mohabir, a
lawful permanent resident, held by immigration authorities at an airport after legally
re-entering the country; he was detained because of a five-year old conviction for
possession of $5 worth of cocaine, for which he had been fined $250; Mohabir
subsequently spent two years in immigration detention and was then deported,
leaving behind his U.S. citizen wife and son); See, e.g., Minto v. Mukasey, 302 F.
App’x 13 (2d Cir. 2008) (involving a noncriminal possession violation).
6
Seth F. Wessler, Quotas or Not, Deportation is a Wrecking Ball, COLORLINES
(March 30, 2010, 1:59 PM),
http://colorlines.com/archives/2010/03/new_deportation_numbers_and_lots_of_em
105
attorneys, fail to realize that once they plead guilty to a crime (which
is usually done in an attempt to secure a minimum punishment), they
unknowingly initiate their own deportation proceedings.7
Mandatory deportation has not been viewed by the U.S. courts
as punishment and is therefore classified as a civil matter,8 even
though non-citizens are charged with criminal matters and then
subsequently deported because of their criminal act(s).9 Because of
such view, many courts have deemed immigration consequences,
such as deportation, to be a collateral consequence rather than a direct
consequence, and have thus held “that the failure to advise non-
citizen criminal defendants of possible deportation consequences does
not constitute ineffective assistance of counsel.”10 As a result, before
the Supreme Court rendered its 2010 decision in Padilla, most
courts11 held that defense counsel who failed to advise and inform
pty_words.html; see 8 U.S.C. § 1227 (2002) (also referred to as § 237, which sets
out language for classes of deportable aliens).
7
See Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) (“Padilla relied on his
counsel’s erroneous advice when he pleaded guilty to the drug charges that made
his deportation virtually mandatory.”); see also 8 U.S.C. § 1227 (2002) (also
referred to as § 237, which sets out language for classes of deportable aliens).
8
See Padilla, 130 S. Ct. at 1476.
9
See Sweeney, supra note 4, at 54 (“[C]ourts have generally relied on the
characterization of deportation as a remedial sanction and have also virtually
universally held that deportation is a collateral consequence of a conviction; for
these reasons, a criminal defendant’s constitutional protections do not attach to
proceedings relating to the immigration consequences of a conviction.”).
10
Lindsay VanGilder, Ineffective Assistance of Counsel Under People v. Pozo:
Advising Non-Citizen Criminal Defendants of Possible Immigration Consequences
in Criminal Plea Agreements, 80 U. COLO. L. REV. 793, 793 (Summer 2009); see
also Sweeney, supra note 4 at 54 (explaining that immigrants are not afforded
constitutional protections during deportation proceedings because courts view
deportation as a remedial sanction).
11
Commonwealth v. Furtado, 170 S.W.3d 384, 386 (Ky. 2005) (holding that
collateral consequences are outside the scope of representation required by the Sixth
Amendment); Meaton v. United States, 328 F.2d 379, 381 (5th Cir. 1964) (holding
that refusal of the court to grant leave for withdrawal of a plea of guilty due to
appellant’s failure to understand the collateral effects was not abuse of discretion);
United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (“A collateral
106
clients of possible immigration consequences did not violate the Sixth

Amendment’s right to effective assistance of counsel.12 However, the
Supreme Court’s recent treatment of this issue has resulted in a
change to the legal landscape for non-citizens represented by
counsel.13
In Padilla, the petitioner, Jose Padilla, a lawful permanent
resident, faced deportation proceedings after entering a guilty plea on
drug related charges in the Hardin Circuit Court of Kentucky.14
Padilla claimed that he pled guilty in reliance of his attorney’s advice
that he did not have to worry about deportation consequences because
he had lived in the U.S. for such a long period of time.15 However,
due to the set up of immigration laws and regulations in the U.S.,
Padilla unfortunately initiated his own mandatory deportation
proceedings when he pled guilty.16 Padilla’s plea agreement provided
that he serve five years of his ten-year sentence, followed by a 5-year
probationary period, after which his life as a lawful permanent
resident in the U.S. would come to an end.17 The petitioner appealed
and alleged that his Sixth Amendment constitutional right was denied
because of ineffective assistance of counsel, as “he would have
consequence is one that is not related to the length or nature of the sentence
imposed on the basis of the plea. Applying this definition, we hold that potential
deportation is a collateral consequence of a guilty plea.”).
12
See People v. Cozo, 746 P.2d 523 (Colo. 1987) (holding that, unlike most courts,
criminal defense counsel may be required to investigate relevant immigration law
and advise non-citizen clients of potential deportation consequences of guilty pleas
to avoid facing ineffective assistance of counsel claims).
13
Padilla, 130 S. Ct. at 1482 (“[A]dvice regarding deportation is not categorically
removed from the ambit of the Sixth Amendment right to counsel.”).
14
Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008).
15
Padilla, 130 S. Ct. at 1476.
16
See Id. at 1478.
17
Padilla, 253 S.W.3d at 483.
107
insisted on going to trial if he had not received incorrect advice from

his attorney.”18 The issue addressed by the U.S. Supreme Court was
whether, under federal law, defense counsel had a duty to advise his
non-citizen client of potential immigration consequences when
pleading guilty to a crime.19 The Court held that competent counsel
should inform non-citizen clients of automatic deportation
consequences.20
Although the Court’s holding was ultimately correct, the court
failed to advise and set out a definite and clear standard for guidance
on how to remedy the problem of ineffective assistance of counsel in
connection with U.S. immigration issues, specifically as to
deportation consequences. Moreover, if the number of deportations
continue to rise because of ineffective assistance of counsel, Congress
may need to intervene once again to reinstate the former judicial
recommendation against deportation mechanisms. Thus, U.S.
immigration law remedies are necessary so that lawyers, whether
having practiced law for years or days, can avoid legal malpractice
because of ineffective assistance of counsel.
An effective solution for any issue is one that starts at the root
of the problem presented. The heart of Padilla revolves around
effective assistance of counsel21 -- as mandated and set out in the
Sixth Amendment of the U.S. Constitution.22 The Sixth Amendment
states that the accused shall have the assistance of counsel for his
defense23 and the U.S. Supreme Court has held that “it had long been
18
19
Id.
20
Id.
21
22
U.S. CONST. amend. VI.
23
Id. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy
and pubic trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his defense.”).
108
recognized that such right to counsel is the right to effective

assistance of counsel.”24 Therefore, in cases similar to Padilla (i.e.,
cases dealing with non-citizens charged with criminal convictions), a
criminal defense attorney must inform the accused of possible
immigration consequences for his or her assistance to be up to par
with the standards set out in the Sixth Amendment. It is imperative
that counsel has some basic knowledge of immigration law if he or
she is to represent the non-citizen defendant in a criminal court
effectively. Such knowledge includes, but is certainly not limited to,
the fact that certain categories of crimes have different definitions and
meanings under immigration law,25 that pleading guilty to a crime
may have irreparable deportation consequences,26 and that
immigration law has its own unique vocabulary terms.27
The U.S. Supreme Court’s holding in Padilla is paramount
because it will change the way non-citizens charged with crimes are
24
McMann v. Richardson, 397 U.S. 759, 771 (1970) (citing Reece v. Georgia, 350
U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v.
Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)).
25
See Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000) (The court held that the
non-citizen’s conviction for possession of drug paraphernalia under the Arizona
Criminal Code was a conviction for a violation of a law relating to a controlled
substance. Since the conviction fell into that category (i.e. controlled substance),
pursuant to the Immigration and Nationality Act and Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, such terminology removed the court’s
jurisdiction and the non-citizen’s due process and fundamental fairness arguments
could not even be addressed, even though he was charged with a crime.); see also
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, §
440(d), 110 Stat. 1276, 1277 (1996); see also 8 U.S.C. § 1182(c) (repealed 1996).
26
Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (citing INS v. St. Cyr, 533
U.S. 289, 296 (2001) (referring to the Attorney General’s authority to grant
discretionary relief from deportation -- an authority that had been exercised to
prevent the deportation of over 10,000 non-citizens during the 5-year period prior to
1996).
27
See Rosenberg v. Fleuti, 374 U.S. 449, 451-53 (1963) (referring to the Court’s
elaboration and definition of the term “entry” for immigration law purposes).
109
treated procedurally28 and will consequently raise the bar for criminal
defense attorneys representing non-citizens in a court of law. In order
to understand the outcome surrounding a case of first impression and
its prevalent impact, it is important to understand the history behind
the present. Thus, part two of this writing delineates a historical
overview of immigration law in the U.S. and illustrates the
connection and importance of immigration law relative to the Sixth
Amendment’s right of effective assistance of counsel. Part three
presents a case recitation of Padilla, including the facts and
procedural history. Part four sets forth an analysis of the Court’s
opinions (majority, concurring, and dissenting). Part five suggests
some possible solutions and critiques that the Padilla holding might
achieve. Finally, part six provides a brief summary of the main points
set forth in this writing.
II. HISTORICAL OVERVIEW
History: “The Beginning is the Most Important Part of the Work”29
In order to grasp a full understanding of the current intricate

immigration laws in the U.S., one must first comprehend their history.
History not only helps to inform us as to how the immigration laws
were formulated, but also helps us to comprehend immigration law as
it stands today. As the following cases demonstrate, immigration
concerns arose many years ago and the progress towards equal
procedural due process for non-citizens has moved at a glacial pace.
Before 1875, there were no federal immigration laws in the
U.S.30 In fact, minimal and minute immigration regulations were
28
VanGilder, supra note 10, at 796 (“[B]ecause immigration consequences have
often been deemed indirect collateral consequences of plea bargains, rather than
‘direct consequences,’ many courts have held that failure to advise a non-citizen
criminal defendant of possible deportation consequences does not constitute
ineffective assistance of counsel.”).
29
THE QUOTATIONS PAGE, http://www.quotationspage.com/quote/24207.html (last
visited Mar. 15, 2011) (quoting Plato).
30
Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875),
93 COLUM. L. REV. 1833, 1844 (December 1993).
110
viewed only at the colonial and state levels.31 Thereafter, a

prohibition of convict immigration was set out in a federal statute
restricting European immigration.32 As a result, Congress passed the
Act of Mar. 3, 1875,33 a statute that barred “convicts and prostitutes
from entering the country.”34 Shortly thereafter, the courts reluctantly
began to get involved because they felt that immigration issues fell
onto the lap of Congress.35
The first immigration case brought before the courts was Chae
Chan Ping v. United States wherein a Chinese laborer who legally
resided in the U.S. left the U.S. for a visit to China, but before his
departure, obtained a certificate entitling him to return and re-enter
the U.S.36 However upon his return, the Chinese laborer was
forbidden from entry on the sole ground that Congress approved a law
during his absence that annulled any certificates entitling Chinese
laborers to re-enter the U.S.37 In Chae Chan Ping, the court held that
“[t]he government, possessing the powers which are to be exercised
for protection and security, is clothed with authority to determine the
31
Id.
32
Id.
33
Id. (stating that the Act of Mar. 3, 1875, excluded persons from legally entering
into the U.S. who were sentenced and convicted in their own countries of felonious
crimes).
34
Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) (referring to Act of Mar. 3,
1875).
35
Fong Yue Ting v. United States, 149 U.S. 698, 713-14 (1893) (“The power of
Congress, therefore, to expel, like the power to exclude aliens, or any specified
class of aliens, from the country, may be exercised entirely through [its] executive
officers . . . [Therefore][,] Congress, having the right, as it may see fit, to expel
aliens of a particular class, or to permit them to remain, has undoubtedly the right to
provide a system of registration and identification of the members of that class
within the country, and to take all proper means to carry out the system which it
provides.”).
36
Chae Chan Ping v. United States, 130 U.S. 581, 581 (1889).
37
Id.
111
occasion on which the powers shall be called forth . . . .”38

Essentially, the court’s view was that the government, pursuant to the
sovereign powers delegated by the U.S. Constitution,39 could exclude
whomever it deemed necessary for the security and protection of U.S.
borders at any time it determined such security was at risk or
reasonably at risk, so long as, when in the judgment of the
government, the interest of the country required it.40 Therefore, in the
era of Chae Chan Ping, non-citizens had few rights and limited
constitutional protections, even if they were at some point approved
to be on U.S. soil. As a result, once a non-citizen left the country, the
government had the power to prohibit him or her from legal entry
back into the U.S.
A couple of years later, the Court declared that deportation
proceedings for non-citizens found inside the U.S. were civil
matters.41 It is evident that, at that time, the Court did not want
deportation proceedings viewed as criminal matters because non-
citizens would then be entitled to U.S. constitutional protections,42
specifically those found in the Fourth, Fifth, Sixth, and Eighth
Amendments. The court held that an order of deportation is “not [a]
punishment for crime [but is] a method of enforcing the return to [a
non-citizen’s] own country . . . .”43 The court further reasoned that
the non-citizen “has not . . . been deprived of life, liberty, or property
without due process of law; and the provisions of the Constitution
securing the right of trial by jury, and prohibiting unreasonable
searches and seizures, and cruel and unusual punishments, have no
38
Id. at 606.
39
Id.
40
Id. at 606-07.
41
Fong Yue Ting v. United States, 149 U.S. 698, 728-29 (1893); see also Simpson,
supra note 2, at 490 (“[D]eportation is not considered punishment, but is merely an
administrative action determining a noncitizen’s right to remain in the United
States.”).
42
Fong Yue Ting, 149 U.S. at 730.
43
Id.
112
application”44 since the issue is civil and not criminal. After the
decision rendered in Fong Yue Ting, Congress, in its exercise of
plenary power, refrained from giving non-citizens procedural due
process rights45 because such “proceeding before a United States
judge . . . is in no proper sense a trial and sentence for a crime or
offense.”46 This view was held by the courts even though the non-
citizens in question were residing inside U.S. perimeters for several
years, had established their U.S. domiciles, and/or had cemented their
families in the U.S.47 For those non-citizens that had developed such
extensive ties in the U.S., spending the rest of their lives in exile is a
reality “often difficult to reconcile with the view that deportation is
not punishment.”48
However, in 1896, the judiciary was faced with an
immigration issue that questioned its previous holding -- that non-
citizens had no constitutionally afforded procedural rights when faced
with charges in a U.S. court of law.49 In Wong Wing v. United States,
the issue before the court was whether Congress could promote its
policy “[t]hat any such Chinese person or person of Chinese descent,
convicted and adjudged to be not lawfully entitled to be and remain in
the United States, shall be imprisoned at hard labor for a period of not
exceeding one year, and thereafter removed from the United States . .
.” without a trial by jury.50 In Wong Wing, the plaintiffs were of
Chinese descent and were found unlawfully inside the U.S.51 The
44
Id.
45
See 8 U.S.C. § 1229a(b)(4)(A) (“In proceedings under this section, . . . the alien
shall have the privilege of being represented, at no expense to the Government, by
counsel of the alien’s choosing who is authorized to practice in such proceedings.”).
46
Fong Yue Ting, 149 U.S. at 730.
47
See Shaughnessy v. Mezei, 345 U.S. 206, 206-07 (1953); Padilla v. Kentucky,
130 S. Ct. 1473, 1475 (2010); Chae Chan Ping v. United States, 130 U.S. 581, 581
(1889); Chew v. Colding, 344 U.S. 590, 592-95 (1953).
48
Simpson, supra note 2, at 491.
49
Wong Wing v. United States, 163 U.S. 228, 235 (1896).
50
Id.
51
Id. at 229.
113
plaintiffs’ mere presence in the U.S. was the criminal offense, so they
were imprisoned and sentenced to “hard labor” for sixty days, and
after serving those sentences, were then ordered to be deported to
China.52 However, for the first time in the nineteenth century, the
U.S. Supreme Court reversed the decision and ultimately reasoned
that “even aliens shall not be held to answer for a capital or other
infamous crime, unless on a presentment or indictment of a grand
jury, nor be deprived of life, liberty, or property without due process
of law.”53 After the decision was rendered in Wong Wing, the
judiciary began to show a sense of equality towards non-citizens by
affording them some forms of procedural due process rights.
Background and Development: Congress Shows that Power Has No

Limits
Just as the wheels of equality began to progress for non-
citizens found in the U.S., Congress passed the Immigration and
Nationality Act of 1917, which brought about “radical changes” for
immigration law.54 To begin, “Congress made classes of non-citizens
deportable based on conduct committed on American soil.”55 The Act
also “authorized the deportation of any alien sentenced to
imprisonment for a term of one year or more” if such conviction
involved a crime of moral turpitude56 and was “committed within five
years after entry to the U.S.”57 Moreover, Section 19 of the Act
52
Id.
53
Id. at 238.
54
Padilla v. Kentucky, 130 S. Ct. 1473, 1478-79 (2010).
55
Id. at 1479.
56
Id. at 1479 (noting that Congress has failed to define with specificity the term
“moral turpitude”); see also Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) (citing
Forbes v. Brownell, 149 F.Supp. 848, 849 (D.C.1957) (“Whether a crime involves
moral turpitude depends upon the inherent nature of the crime, as defined in the
statute concerned . . .”); see also Simpson, supra note 2, at 492 (“What constitutes a
crime involving moral turpitude is unclear, and Congress provides little guidance.
Defining a crime of moral turpitude entails more of a moral or ethical conclusion.”).
57
114
rendered deportable any non-citizen who committed “two or more

crimes of moral turpitude at any time after entry.”58 Congress’ failure
to statutorily define “moral turpitude” affected the status of non-
citizens because it rendered most non-citizens charged with crimes
deportable or inadmissible.59 This was problematic because the
classification of such crimes became “judgment calls regarding the
morality, not the legality of criminal behavior.”60 This led to a lack of
uniformity regarding exactly which crimes were considered crimes of
moral turpitude.61 Thus, it is evident that during that time there was
an increased criminalization of immigration law that affected the
outcome for non-citizens charged with crimes.62
Ironically, this Act also minimized the risk of unjust
deportation because it allowed judges to make recommendations on
deportation proceedings. This was also referred to as Judicial
Recommendation Against Deportation (hereinafter, “JRAD”).63 In
JRAD proceedings, sentencing judges in both state and federal
prosecutions had the power to make a recommendation during the
sentencing phase, or within thirty days thereafter, that “such alien
shall not be deported.”64 Once a recommendation was made by the
sentencing court, “[t]hose in charge of the deportation process,
58
Id.
59
Simpson, supra note 2 at 500.
60
Id. at 501.
61
Id.
62
Simpson, supra note 2, at 500 (“In 1917, Congress passed legislation that made
the conviction of crimes involving moral turpitude both a ground for exclusion and
a ground for deportation from the United States.”).
63
Padilla, 130 S. Ct. at 1479; see also Haller v. Esperdy, 397 F.2d 211, 212 (1968)
(stating that 8 U.S.C.A. § 1251(b)(2) offered “sentencing judge a chance to
ameliorate the harsh sanction of deportation . . . .”).
64
Padilla, 130 S. Ct. at 1479; see also Simpson, supra note 2, at 502 (“JRAD
allowed noncitizens to request that the judge of the criminal court issue a binding
recommendation that the criminal conviction be construed by an immigration judge
as not triggering removal from the United States.”).
115
[including] the immigration judge, the INS [and] the Attorney

General, [were] . . . simply not allowed to use the conviction as a
basis for deportation.”65 Such judicial recommendation helped
prevent automatic deportation because even if a non-citizen was
charged with a deportable offense, the presiding judge retained
discretion to ameliorate unjust results.66 JRAD helped non-citizens
remain in the U.S., since “there was no such creature as an
automatically deportable offense.”67
Thereafter, Congress passed the Immigration and Nationality
Act of 1952 that replaced and roughly paralleled the 1917 Act by
“granting the Attorney General broad discretion to admit excludable
aliens”,68 provided that the non-citizen had established his residency
in the United States for at least seven years.69 Section 212(c) of the
1952 Act allowed non-citizens to apply for discretionary waivers of
deportation,70 as it afforded the courts the authority to weigh the
equities of the case when rendering decisions to grant deportation.71
Such extension of deportation relief had great practical importance for
non-citizens facing deportation because immigration law broadly
defined deportable offenses.72 Accordingly, for non-citizens charged
65
Janvier v. United States, 793 F.2d 449, 452 (2d Cir. 1986).
66
Id.
67
68
INS v. St. Cyr, 533 U.S. 289, 294-95 (2001).
69
See 8 U.S.C. §1182(c) (repealed 1996).
70
St. Cyr, 533 U.S. at 295 (“Like § 3 of the 1917 Act, § 212(c) was literally
applicable only to exclusion proceedings, but it too has been interpreted by the
Board of Immigration Appeals (BIA) to authorize any permanent resident alien with
‘a lawful unrelinquished domicile of seven consecutive years’ to apply for a
discretionary waiver from deportation.”).
71
Sweeney, supra note 4, at 61 (“[I]mmigration judge was to balance the positive
and adverse factors and decide on the record as a whole whether the applicant was
deserving of a positive exercise of discretion.”).
72
St. Cyr, 533 U.S. at 295 (citing that pursuant to 8 U.S.C. § 1227, aliens are
deportable upon conviction of two or more crimes of moral turpitude or for one
116
with criminal offenses who wished to continue to legally reside in this

country, Section 212(c) relief was vital to their stay.73 “If relief [was]
granted, the deportation proceeding [was] terminated and the alien
remain[ed] a permanent resident.”74
Moreover, in 1953, the Supreme Court held that lawful
permanent residents75 were afforded procedural due process rights.76
In Kwong Hai Chew v. Colding, the plaintiff was a lawful permanent
resident admitted into the U.S as of January 10, 1945.77 He was
married to a Native American, resided in New York, served as a
United States Merchant Marine during World War II, and in
November 1950, signed articles of employment after being screened
for employment by the U.S. Coast Guard.78 He was detained while on
an American merchant vessel in San Francisco.79 The vessel he was
such crime if committed within five years of entry and resulted in a jail term of at
least one year).
73
Id. at 296.
74
Id. at 295.
75
Kwong Hai Chew v. Colding, 344 U.S. 590, 591-92 (“[A] lawful permanent
resident of the United States . . . is an alien continuously residing and physically
present therein … .”); see also U.S. CITIZENSHIP AND IMMIGR. SERVICES,
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6
d1a/?vgnextoid=070695c4f635f010VgnVCM1000000ecd190aRCRD&vgnextchan
nel=b328194d3e88d010VgnVCM10000048f3d6a1RCRD (last visited March 13,
2011) (“A lawful permanent resident is as any person not a citizen of the United
States who is residing the in the U.S. under legally recognized and lawfully
recorded permanent residence as an immigrant. Also referred to as Permanent
Resident Alien, Resident Alien Permit Holder, and Green Card Holder.").
76
Kwong Hai Chew, 344 U.S. at 596-97 (“It is well established that if an alien is a
lawful permanent resident of the United States and remains physically present there,
he is a person within the protection of the Fifth Amendment. He may not be
deprived of his life, liberty or property without due process of law.”).
77
Id. at 592-95.
78
Id.
79
Id.
117
excluded from was to be his first voyage with the U.S. Coast Guard.80
Mr. Chew committed no crime and his detention was based on
“information of a confidential nature.”81 ”The immigration inspector
ordered him ‘temporarily excluded’, . . . as an alien whose entry was
deemed prejudicial to the public interest.”82 The plaintiff petitioned
such detention and the Court was asked to determine if a detention,
without notice of any charge against him and without opportunity to
be heard, was legally valid.83 The wheels of equality progressed once
again when the Court held that lawful permanent residents “from a
constitutional point of view were entitled to due process.”84 The court
reasoned that lawful permanent residents were protected under the
Fifth Amendment, that they could not be detained without being
informed of the charges against them, and that they must be afforded
a hearing sufficient to satisfy due process requirements.85 Therefore,
the decision in Kwong Hai Chew illustrates that the courts viewed
lawful permanent residents as citizens with constitutional due process
rights.86 Equality was illustrated as lawful permanent residents
became entitled to the opportunity to be heard before a judge once
charged with a crime.87
But alas, the slight progression of equality for non-citizens
facing criminal procedures came to a halt in 1996 when Congress
passed the Antiterrorism and Effective Death Penalty Act
80
Id.
81
Id.
82
Id. at 594-95.
83
Id.
84
Id. at 598.
85
Id. at 602-03.
86
Id. at 598-99.
87
Id. at 600-01 (“From a constitutional point of view, [an alien] is entitled to due
process without regard to whether or not, for immigration purposes, he is to be
treated as an entrant alien . . .[;] [h]is status as a person within the meaning and
protection of the Fifth Amendment cannot be capriciously taken from him.”).
118
(hereinafter, “AEDPA”)88 and the Illegal Immigration Reform and

Immigration Responsibility Act (hereinafter, “IIRIRA”)89.90 These
acts stiffened immigration laws for aggravated felonies by
prospectively eliminating the Section 212(c) relief previously
afforded91 and by expanding the class of crimes that would fall under
aggravated felonies.92 By the passage of these acts, Congress
eliminated the Attorney General’s authority to grant discretionary
relief from deportation, an authority that, as previously mentioned,
had been exercised to prevent deportation.93 In general, if a non-
citizen committed a removable offense after the 1996 effective date,
removal proceedings were practically inevitable.94 The “cancellation
88
See Simpson, supra note 2, at 506. The passage of the AEDPA was actually
rooted in an act of domestic terrorism, the Oklahoma City Bombings of 1995. This
Act greatly expanded the class of crimes known as aggravated felonies, which
affected immigration deportation concerns. Senator Kennedy commented during
the wake of the passage of the AEDPA that such amendment “virtually eliminates
the Attorney General’s flexibility to grant discretionary relief from deportation for
long-time permanent residents convicted of lesser crimes . . . [t]hey could live here
productively for thirty years and have an American wife and children. But for
them, it is one strike and you are out.”
89
See Simpson, supra note 2, at 504. IIRIRA lowered the requisite term of
imprisonment for “crimes of violence” from five years to one year. Accordingly,
this allowed for many crimes that would be characterized as misdemeanors to
qualify as a crime of violence if a possible sentence of imprisonment for one year
could be imposed. Another harsh consequence of IIRIRA is that its amendments
are implemented retroactively, making a person deportable regardless of when the
crime occurred. See also Lonegan, supra note 5, at 60 (stating that IIRIRA
eliminated § 212(c) relief and replaced it with a new form of relief called
“cancellation of removal”).
90
Sweeney, supra note 4, at 65.
91
Id.
92
Lonegan, supra note 5, at 60.
93
Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (citing INS v. St. Cyr, 533
U.S. 289, 295-96 (2001)).
94
Id.
119
of removal statute” espoused by IIRIRA created two additional

statutory bars to prevent lawful permanent residents from seeking any
form of deportation discretion, including the commission of an
aggravated felony and the commission of minor offenses within seven
years of arrival.95 The clear lack of judicial flexibility back-tracked
non-citizens’ rights and it appeared that non-citizens were back to the
judicial times of Chae Chan Ping and Fong Yue Ting.
The aforementioned cases illustrate that the U.S. Congress
historically kept going back-and-forth on its immigration policies.
The holdings ranged from the enforcement of harsh policies to lenient
guidelines, and from judicial discretion on deportation to mandatory
deportation. At its commencement, immigration law was very narrow
and straight-forward. Earlier cases proved such by concluding that
the U.S. could exclude and deport non-citizens at will. Thereafter, the
history of the immigration timeline evidenced a drastic and dramatic
evolution. Once AEDPA and IIRIRA were passed in 1996, it
appeared that the movement towards equal rights for immigrants
came to a halt. The courts deported individuals regardless of familial
ties, U.S. based employment, and/or their length of stay in the U.S.96
Tens of thousands of non-citizen criminal defendants have been
removed from the U.S. since then.97 For example, in 1986 alone, the
annual rate at which the U.S. deported non-citizens because of
criminal convictions rose from 1,978 to over 88,000 in 2005.98
History allows one to conclude that the “United States now has a two-
tiered system of criminal justice, in which lawful permanent residents
95
96
Sweeney, supra note 4, at 49 (“Immigration authorities deported tens of
thousands of lawful permanent residents . . . [and] for those with spouses and
children in this country, the consequences of removal were far more severe than the
terms of criminal sentences. However, courts have consistently held that removal is
not punishment for crime but is instead a remedial civil sanction and a collateral,
rather than a direct, consequence of a conviction.”).
97
VanGilder, supra note 10, at 793.
98
120
are punished far more harshly than their citizen counterparts for even
the most trivial offenses.”99
Nexus between Immigration Law and the Sixth Amendment’s Right to

Counsel
Immigration concerns were brought to the courts’ attention in

1889 when the courts decided Chae Chan Ping. To date, immigration
concerns continue in the courts as, most recently, the U.S. Supreme
Court handed down a monumental decision in Padilla, which granted
immigrants the right to effective assistance of counsel.100 As a result,
counsel must now inform clients of potential immigration
consequences.
Historically, courts held that removal proceedings were
regarded as wholly civil in nature and thus deportations were not
viewed as punishment or a form of criminal sanctions.101 As a result,
one could conclude that former immigration law did not consider
serving a criminal sentence and deportation to be a form of double
jeopardy. However, the court in Padilla recognized that deportation
is in fact a severe penalty and is “nevertheless intimately related to
the criminal process.”102 Before Padilla, a desperate need for
effective assistance of counsel existed due to the legislation that was
in place for non-citizens convicted of crimes.103 Therefore, the
99
Id. at 57-58.
100
Padilla v. Kentucky, 130 S. Ct. 1473, 1487 (2010) (“It is our responsibility under
the Constitution to ensure that no criminal defendant – whether a citizen or not – is
left to the mercies of incompetent counsel.”); see also VanGilder, supra note 10, at
838 (“Adequate advice in a criminal proceeding may make a cognizable difference
in deportation proceedings by making non-citizens who are facing removal better
equipped to face the immigration judges who will seal their fate. Requiring defense
counsel to advise a non-citizen criminal defendant, like Mr. Padilla, of the
immigration consequences of a guilty plea is an important step toward protecting
the defendant's Sixth Amendment right to effective assistance of counsel.”).
101
Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010).
102
Id.
121
decision handed down in Padilla helped to prove that deportation is in

fact such a dire consequence that more protections are necessary,104
specifically the right to effective assistance of counsel as set out in the
Sixth Amendment of the U.S. Constitution.105
III. CASE RECITATION
Background and Procedural History
Petitioner Jose Padilla, a native of Honduras, became a lawful

permanent resident of the U.S. over forty years ago.106 “Padilla
served this nation with honor as a member of the U.S. Armed Forces
during the Vietnam War.”107 Padilla contended that he lived with his
family in California.108 In September 2001, Padilla, a licensed
commercial truck driver, was arrested in Kentucky for charges of
operating a tractor/trailer without a weight and distance tax number
and for transporting marijuana.109 He was subsequently indicted for
the same offense in October 2001.110 Pursuant to the laws of the state
of Kentucky, the transportation charge rendered an indictment for
103
Id. at 1480 (“[C]hanges to our immigration law have dramatically raised the
stakes of a non-citizen’s criminal conviction. The importance of accurate legal
advice for noncitizens accused of crimes has never been more important. These
changes confirm our view that, as a matter of federal law, deportation is an integral
part -- indeed, sometimes the most important part -- of the penalty that may be
imposed on noncitizen defendants who plead guilty to specified crimes.”).
104
Id.
105
U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall have the
Assistance of Counsel for his defense.”).
106
107
Id.
108
Brief of Petitioner at 8, Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-
651).
109
Id.
110
Id.
122
three charges: 1) trafficking of the drug, 2) possession of the drug;

and 3) possession of drug paraphernalia.111 Initially, Padilla pled not
guilty and was released on bond.112 Subsequently, Padilla moved,
under the advice of his counsel, to enter a guilty plea on the drug-
related charges in exchange for a dismissal of the non-drug related
charge and a total sentence of ten yearss.113 On October 4, 2002, the
trial court entered the judgment convicting Padilla of the drug-related
charges.114 After entering his plea, Padilla was faced with deportation
from the U.S.115
On August 18, 2004, Padilla filed a pro se motion in the
Hardin County Circuit Court for post-conviction relief, alleging
ineffective assistance of counsel.116 Specifically, Padilla noted that
his counsel was required to investigate possible deportation
consequences and that his counsel’s wrongful advice on the
deportation consequences of his plea without investigation of those
consequences constituted ineffective assistance of counsel.117 Padilla
claimed he was misadvised by his attorney on the deportation
consequences of his plea.118 Padilla told the Court that when he asked
his court appointed attorney about his immigration status, his
attorney’s response was that he should not worry about it because he
had lived in the U.S. long enough.119 Thus, Padilla relied on his
111
Id.
112
Id.
113
Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008) (“the plea
agreement provided that Padilla would serve five years of his ten year sentence and
would be sentenced to probation for the remaining five years.”).
114
Id.
115
116
117
Brief of Petitioner, supra note 107 at 11.
118
Id.
123
counsel’s erroneous advice when he pled guilty to the drug charge

that made his deportation virtually mandatory.120 He also told the
Court that he would have insisted on going to trial had he not received
faulty and misleading advice from his attorney.121
The trial court subsequently denied Padilla’s motion, holding
that he did not have to be educated on all possible consequences of
his guilty plea.122 Padilla then appealed to the Kentucky Court of
Appeals, which reversed and remanded the trial court’s decision,
holding that “although collateral consequences do not have to be
advised, an affirmative act of gross misadvice relating to collateral
matters can justify post-conviction relief.”123 The Commonwealth of
Kentucky then appealed the ruling to the Kentucky Supreme Court.124
The Kentucky Supreme Court reversed the appellate decision, holding
that relief was denied to the appellee, Padilla, because “the Sixth
Amendment’s guarantee of effective assistance of counsel did not
protect a criminal defendant from erroneous advice about deportation,
as it was merely a collateral consequence of conviction.”125 Certiorari
was then granted by the U.S. Supreme Court to decide whether
“Padilla’s counsel had an obligation to advise him that the offense to
which he was pleading guilty would result in his removal from this
country.”126
119
Id. at 10-11 (referring to the language under 8 U.S.C. § 1101(a)(43)(B),and 8
U.S.C. § 1227(a)(2)(A)(iii) and (B)(i), Mr. Padilla’s felony drug conviction was a
deportable crime because it constituted an aggravated felony as delineated in the
statutes).
120
121
Id.
122
123
Id. at 482-83.
124
125
126
Id.
124
IV. ANALYSIS
Court’s Analysis
1. Majority Opinion: Taking a Stand
The Court in Padilla held that counsel engaged in deficient

performance by failing to advise the defendant that his guilty plea
made him subject to automatic deportation and that the defendant’s
claim was subject to the Strickland ineffective assistance test,127 not
only to the extent that he alleged affirmative misadvice, but also to
the extent that he alleged omissions by counsel.128 The Court also
distinguished between direct and collateral consequences as they
pertained to the “unique nature of deportation.”129
First, the Court stated that to address the ineffective assistance
of counsel claim, the Strickland test applied.130 To determine whether
counsel’s performance was in fact deficient (the first prong of the
Strickland test), the Court addressed whether counsel’s
representations fell below an objective standard of care.131 The Court
looked to the prevailing professional norms that dealt with the
“intersection of modern criminal prosecutions and immigration
law.”132 It found that the “weight of such professional norms support
the view that counsel must advise [his or] her client regarding the
deportation risk”133 because deportation is recognized as a harsh
127
See Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating that to prevail
on a claim of ineffective assistance of counsel relative to a guilty plea, petitioner
must demonstrate that: (1) counsel’s performance was deficient; and (2) the
deficient performance prejudiced his defense).
128
Padilla, 130 S. Ct. at 1473 (majority opinion).
129
Id. at 1476.
130
Id.
131
Id.
132
Id. at 1482.
133
125
penalty. Moreover, when “the terms of the relevant immigration

statute are succinct, clear and explicit in defining the removal
consequence” for a conviction, and a simple reading of the
immigration statute could have easily been determined, the duty to
give such correct advice is equally clear.134 Not surprisingly, the
Court reasoned that, “advice regarding deportation is not categorically
removed from the ambit of the Sixth Amendment right to counsel.”135
Thus, Padilla’s attorney failed to provide effective assistance of
counsel, thereby depriving Padilla of his constitutional right to
effective assistance of counsel. Since the petitioner sufficiently
alleged constitutional deficiency to satisfy the first prong of
Strickland, the Court left the second prong for consideration by the
Kentucky courts.136
Moreover, the Court made it clear that it was stepping in to
make a decision because a trend towards non-citizens being convicted
of crimes with a lack of procedural due process rights had become
evident.137 Before the passage of several legislative acts, non-citizens
had protections, whereas now, there are virtually none.138
Specifically, the Court defended its holding by proclaiming that,
“[w]hile once there was only a narrow class of deportable offenses
and judges wielded broad discretionary authority to prevent
deportation, immigration reforms have expanded the class of
deportable offenses and limited judges’ authority to alleviate
134
Id. at 1483.
135
Id. at 1482.
136
Id. at 1483-84.
137
Id. at 1476; see also VanGilder, supra note 10, at 794 (“In 2005 alone, 40,018
aliens were removed from the United States for criminal violations. That number
accounts for approximately nineteen percent of the 208,521 total removals in
2005[,] but does not include aliens who are criminals and are removed under a
different administrative reason for the convenience of the government. The
Department of Homeland Security estimates that it removed 89,406 total criminal
aliens from the United States in 2005, which accounts for forty-three percent of the
total removals in 2005.”).
138
126
deportation’s harsh consequences.”139 Accordingly, the decision

rendered reflects the Court’s awareness of a need to intervene because
of the injustice towards non-citizens. The Court espoused that it is
“responsibl[e], under the Constitution, to ensure that no criminal
defendant – whether a citizen or not – is left to the ‘mercies of
incompetent counsel.’”140
The Court also advised that its decision did not necessarily
recommend that immigration law advice is required in every instance,
especially where the law is not succinct and straightforward.141 It
pointed out that only where “the terms of the relevant immigration
statute are succinct, clear and explicit in defining the removal
consequence for . . . conviction,” is adequate advice necessary.142 The
court concluded that in Padilla’s case, the deportation consequence of
his plea was clear from a mere reading of the relevant immigration
law statute.143
The Court also asserted that deportation, although civil in
nature, is a severe penalty intimately related to the criminal process
and that, due to the constant changes in immigration law, non-citizen
defendants facing a risk of deportation for a particular offense find it
even more difficult to “divorce the penalty from the conviction in the
deportation context.”144 Accordingly, removal proceedings make it
uniquely difficult to classify deportation as either a direct or collateral
consequence.145 Due to the intricacy between deportation and
139
Id.
140
Id. at 1486.
141
Id. at 1483.
142
Id.
143
Padilla, 130 S. Ct. at 1483 (majority opinion) (noting that 8 U.S.C. §
1227(a)(2)(B)(i) clearly states that an alien who at any time after admission into the
U.S. has been convicted of a violation of any law or regulation of a State relating to
a controlled substance, other than a single offense involving possession for one’s
own use of 30 grams or less of marijuana, is deportable).
144
Id. at 1482.
145
Id. at 1476.
127
criminal law proceedings, the Sixth Amendment right to counsel for

non-citizens facing criminal charges is extremely important because
deportation is the equivalent of banishment or exile.146 This
exemplifies the critical need for counsel to inform non-citizen
client(s) of the risk of deportation when entering a guilty plea.147
In a brief on behalf of the United States as Amicus Curiae, the
Solicitor General argued that Padilla’s claim should only be valid if
he was given affirmative misadvice.148 The Court countered this
argument by explaining that a holding limited to affirmative
misadvice would not help defendants being represented by counsel
because it would encourage criminal defense attorneys to remain
silent on important legal matters, “even when answers are readily
available.”149 In essence, the Court summarized that “there is no
relative difference between an act of commission and an act of
omission in this context.”150
2. Concurring Opinion: The Complexity Remains
In the concurring opinion, Justice Alito agreed with the

majority that criminal defense counsel must provide effective
assistance to their clients and not mislead them on deportation
consequences.151 Justice Alito also opined that immigration law is too
complex and difficult to understand for criminal defense attorneys not
specialized in immigration law.152 Because of immigration law
complexities, however, he disagreed with the majority that a criminal
defense attorney must attempt to explain the possible immigration
146
Id. at 1484.
147
Id.
148
149
Id.
150
Id.
151
Id. at 1487 (Alito, J., concurring).
152
Id.
128
consequences that might arise from a criminal conviction.153 The

concurrence also reasoned that “nothing is ever simple with
immigration law – including the determination [of] whether
immigration law clearly makes a particular offense removable.”154
Moreover, the concurrence stated that the longstanding and
unanimous position of the federal courts, until Padilla, had always
been that reasonable defense counsel generally need only advise their
client about the direct consequences of criminal convictions.155
Furthermore, the concurrence believed that the burden the
majority wanted to impose on criminal defense counsel was too
great.156 The concurrence listed the following four reasons as to why
this particular approach is problematic:
1) the statutes will not always be succinct, clear, and
explicit; 2) defendants are likely to be misled if they
are under the impression that counsel must provide
advice regarding only one of the many collateral
consequences; 3) the court’s rigid approach could be
softened by the use of a standard form given to non-
citizen defendants and/or trial judges taking on the
authoritative role of informing the non-citizen
defendants of the direct and collateral consequence of
entering a guilty plea; and 4) expanding the scope of
153
Padilla, 130 S. Ct. at 1487-88 (Alito, J. and Roberts, J., concurring) (“Criminal
defense attorneys are not expected to possess-and very often do not possess-
expertise in other areas of the law, and it is unrealistic to expect them to provide
expert advice on matters that lie outside their area of training and experience.”).
154
Id. at 1490.
155
Id. at 1487.
156
Id. at 1490 (noting that the scope of counsel’s duty to offer advice concerning
deportation consequences may turn on how difficult it is to determine those
consequences as severe; the Court tries to downplay the burden by its instruction
that if the terms of the relevant immigration statute are succinct, clear and explicit
in defining removal consequences, then counsel has an affirmative duty to inform
the client; however, when the law is not succinct, clear and explicit, nothing more is
required than to inform the client that pending criminal charges may carry a risk of
adverse immigration consequences).
129
criminal defense counsel’s duties under the Sixth

Amendment was not based on proper similarities.157
3. Dissenting Opinion: The Birth of the Padilla Warning
In his dissent, Justice Scalia argued that, by the Court making

the issue at hand a constitutional issue, there remained no opportunity
for any legislative possibility of amending the decisions that were
handed down.158 His opinion expressed that “the Constitution . . . is
not an all-purpose tool for judicial construction of a perfect world;
and when [courts] ignore its text in order to make it that, we find
ourselves swinging a sledge where a tack hammer is needed.”159
Furthermore, Justice Scalia stated that the majority provided
no rationale for when the ramifications of collateral consequences
would end.160 Specifically, he stated that “criminal conviction[s] can
carry a wide variety of consequences other than conviction and
sentencing, including civil commitment, civil forfeiture, the loss of
the right to vote, disqualification from public benefits, ineligibility to
possess firearms, dishonorable discharge from the Armed Forces, and
loss of business or professional licenses . . . ,” all of which are serious
consequences leading to a constitutional slippery slope.161 According
to Justice Scalia, pursuant to the new-found expansion of the Court’s
definition of constitutionally effective assistance of counsel, counsel
must now warn defendants of potential removal consequences.162
However, he asserts that Congress is better equipped to handle
matters like these because legislation can specify which categories of
misadvice are relevant; specifically, which collateral consequences
157
Id. at 1490 - 93.
158
Padilla, 130 S. Ct. at 1497 (Scalia, J., dissenting).
159
Id. at 1494.
160
Id. at 1496.
161
Id.
162
Id. (stating that counsel must now provide defendants with a Padilla warning – a
warning referring to potential removal consequences).
130
counsel must bring to a defendant’s attention and which warnings

must be given.163
V. SOLUTIONS
Arguments and Possible Solutions: Who Holds the Key?
The legal problem discussed here is that non-citizens charged

and convicted of crimes are faced with, and in all probability will
continue to face, ineffective assistance of counsel because most
attorneys are not familiar with immigration law, specifically the
immigration consequences that arise from a guilty plea.164 The time
for a solution is long overdue and, like most solutions to any problem,
one must look to the root of the problem in an effort to find a
plausible solution. In this case, the problem of ineffective assistance
of counsel is rooted in legal forums across the U.S. because it is in
such forums that attorneys obtain their substantive legal education.
Proposal 1: Addition of Subject Matter to the State Bar
Immigration law, specifically immigration consequences that

might lead to claims of ineffective assistance of counsel, can be added
as a tested subject on state bar exams, particularly in states where
there are a substantial number of immigration cases. The presence of
such subject matter on state bar exams will induce law school
students to gain basic fundamental knowledge about immigration
consequences that might arise at deportation proceedings. Students
may elect to take advantage of an immigration law course during their
attendance at law school or during their bar exam study before taking
the state administered bar exam. Either way, students will at least
have some background on the effects of ineffective assistance of
counsel in connection with immigration consequences.
163
Id.
164
Padilla, S. Ct. at 1476 (“In post conviction proceedings, [Padilla’s counsel] . . .
told [Padilla] not to worry about deportation since he had lived in this country so
long.”).
131
An illustrative model of this proposal is the inclusion of

Indian law to the New Mexico state bar exam.165 “In 2002, New
Mexico became the first state to place Indian law on its state bar exam
. . .”166 in response to the lack of Indian law competency among New
Mexico licensed attorneys.167 Attorneys practicing in New Mexico
found it common to inadvertently experience Indian law issues in
their respective cases; however, some lacked awareness of its
complexity.168 Although some attorneys were knowledgeable about
Indian law, because of its “inconsistency, non-uniformity and recent
United States Supreme Court decisions,” they found themselves faced
with more questions than answers.169 In fact, most answers to Indian
law issues often contained “conditioners and situational contexts.”170
Therefore, due to the lack of licensed attorneys who were competent
and knowledgeable about Indian law, the hardships faced by low
income Indians in need of representation were exacerbated.171
Accordingly, the University of New Mexico - School of Law decided
to take action as a result of the social and political history regarding
American Indians and because it was the only law school in the
165
Gloria Valencia-Weber & Sherri Nicole Thomas, When the State Bar Exam
Embraces Indian Law: Teaching Experiences and Observations, 82 N.D. L. REV.
741, 743 (2006).
166
Id. (“This decision made basic knowledge of Indian law part of the competency
expected of all licensed attorneys.”).
167
Id. at 750.
168
Id. at 749 (“While it is common for attorneys to bump into Indian law issues in
the course of handling matters such as contracts, family law, natural resources, and
water law, many lack formal study of Indian law.”).
169
Id. at 749-50 (referring to licensed attorneys showing up at the University of
New Mexico law library and asking librarians to assist them in finding answers to
the complexity of Indian law).
170
Id. at 750.
171
Id. (“[T]he major pro-bono project to provide guardians at litem for children did
not include Indian children because the organization and its staff lacked expertise in
the Indian Child Welfare Act.”).
132
state.172 Although it might seem that the addition of a subject to a

state bar might take a lot of time, the project to place Indian law on
the New Mexico state bar was completed in seven months.173
The history of Indian law at New Mexico’s law school created
a supportive environment within the bar and from the citizens of New
Mexico.174 After viewing this addition as a success, the state of
Washington has succeeded in becoming the second state to add
American Indian law on its state bar exam.175 Other states with high
American Indian populations are currently considering its addition as
well.176 The facts presented relative to the inclusion of Indian law
sound strikingly similar to the current immigration law dilemma. As
a result, the point is clear. If an attorney practices in an area that is
prevalent to certain legal issues, he or she should be competent in that
area of law so that they can adequately and effectively represent their
client.
Proposal 2: Mandatory CLE Certification in Exchange for Court

Appointments (for Practicing Attorneys)
Another possible solution for eliminating ineffective

assistance of counsel in the immigration law sector would be to
172
Id. at 743.
173
Id. at 751-52 (illustrating that during the seven month time period, the inclusion
of Indian law on the New Mexico state bar was achieved by the following seven
steps: 1) project request was made to the New Mexico Native American Bar
Association; 2) research for the project began; 3) a proposal was drafted to include
Indian law as a New Mexico bar exam subject; 4) project leaders secured support
from attorneys all over the state; 5) the proposal was then presented to the New
Mexico State Board of Bar Examiners; 6) the Board rendered its vote; and 7) on
February 28, 2002, the New Mexico Supreme Court approved the inclusion of
Indian law on the state bar exam).
174
Id. at 753.
175
Id.
176
Id. at 754 (referring to Arizona, Oklahoma, Wisconsin, Montana, Oregon, Idaho
and California as states with bar leaders that are considering the addition of Indian
law onto their respective state bar exams).
133
enforce a mandatory Continuing Legal Education (hereinafter,

“CLE”) or certification class via state law. This option is available
for practicing attorneys unable to reap the benefits of taking an
immigration law class during their enrollment in law school. Such
mandatory certification would primarily be tailored for attorneys
receiving state court appointments in jurisdictions where a licensed
attorney must first register with the courts in order to receive the state
court appointments.177 For example, in regions where sizeable
immigrant populations exist, there are already licensed and practicing
attorneys whose practice is primarily based on receiving state court
appointments on a daily basis.178 Although their practice consists of
mainly that, most of those attorneys are uninformed of current
immigration law as they continue to violate Sixth Amendment non-
citizen rights because they fail to inform the non-citizens of
immigration consequences.179 Accordingly, court appointed cases
dealing with non-citizens charged with crimes should be disbursed to
only those attorneys who have attended immigration law CLE classes
and hold a valid and current CLE certification on immigration law.
The court in Padilla explained that it was not difficult to find
a deficiency in the case because “[t]he consequences of Padilla’s plea
could easily be determined from reading the removal statute . . .”180
However, if counsel is not familiar with the statute or does not know
where to find it, how can he or she be held responsible for something
that he or she did not know? As illustrated throughout this writing,
immigration law changes very frequently, so counsel must be kept
abreast of where to find research when handling an immigration law
case. Generally, the best idea is to keep counsel informed by making
CLE immigration courses mandatory, especially if counsel chooses to
practice immigration law.
177
Telephone interview with Cecilia Olivarez-Garza, Attorney at Law, Gault, Nye
& Quintana, LLP (Jul. 22, 2010).
178
Interview with Elizabeth M. Garcia, Attorney at Law, Willette & Guerra, L.L.P.,
McAllen, Tex. (Jul. 16, 2010) (discussing some of the practices of current counsel
in Hidalgo County located in south Texas).
179
Id.
180
Padilla v. Kentucky, 130 S. Ct. 1473, 1476-77 (2010).
134
A starting point for a proper and efficient CLE course would

be to discuss the “basic considerations a criminal defense attorney
must consider when undertaking the representation of any criminal
defendant,” along with immigration consequences, specifically those
of deportation.181 Also, immigration law nuances available during the
plea-bargaining process would be highlighted during the CLE
seminars. As the court opined in Padilla, “informed consideration of
possible deportation can only benefit both the State and non-citizen
defendants during the plea-bargaining process.”182 Overall, the point
of immigration CLE courses would be to primarily emphasize that
counsel will likely be held liable for ineffective assistance of counsel
if their non-citizen client is not informed of the proper consequences
associated with taking a guilty plea. A possible legal malpractice
claim could be avoided with the knowledge obtained in an
immigration CLE course.
Proposal 3: Addition to law school curriculum
Currently, immigration law is not a part of the mandatory

curriculum in law schools in states where there are a substantial
number of cases with non-citizens involved, nor is there enough
student awareness on immigration issues. Given the aforementioned
proposals, it would behoove law schools to focus on immigration law
in their curriculums. To date, law school students across the nation
are generally offered immigration law classes as electives. As an
elective, immigration law is often overlooked and not given the
importance it deserves. Most law school students do not know any
181
See, e.g., VanGilder, supra note 10, at 834 (referring to details about CLE
seminars administered in Colorado that address the overlap between immigration
and criminal law).
182
Padilla, 130 S. Ct. at 1486 (“Counsel who possess the most rudimentary
understanding of the deportation consequences of a particular criminal offense may
be able to plea bargain creatively with the prosecutor in order to craft a conviction
and sentence that reduce the likelihood of deportation, as by avoiding a conviction
for an offense that automatically triggers the removal consequence. At the same
time, the threat of deportation may provide the defendant with a powerful incentive
to plead guilty to an offense that does not mandate that penalty in exchange for a
dismissal of a charge that does.”).
135
better183 and usually just take the required courses and choose less
complex legal subjects as their electives. As a result, most students
graduating from law school and entering the legal arena as lawyers
have no clue what to look for when faced with immigration law
issues.
For the most part, handling immigration issues is inescapable
in federal court appointments where there exists a high immigrant
population.184 Some judicial districts affirm that such federal judicial
appointments must be handled even if an attorney does not specialize
in immigration law.185 Thus, if law schools were to make
immigration law more prominent by focusing on increasing student
awareness relative to what constitutes ineffective assistance of
counsel, some of the immigration law issues addressed by the courts
might be alleviated.186 Moreover, law schools located in states with a
substantial number of immigration cases may add an immigration law
class to the law school curriculum. It has become clear that criminal
defense attorneys handling immigration issues need to have some
basic legal knowledge about immigration law. How else could they
183
Ethan J. Leib, Adding Legislation Courses to the First-Year Curriculum, 58 J.
LEGAL EDUC. 166, 175 (2008) (“Sometimes, of course, students don’t know what is
best for their educations . . . [b]ut that doesn’t mean that [these courses] aren’t
critical to good lawyering and that they aren’t foundational courses that students
might be required to take . . .[;] [s]tudents might not vote for Civil Procedure in a
popularity contest of courses, but few really think students shouldn’t get some
grounding in Procedure.”).
184
& Quintana, LLP (Jul. 22, 2010) (discussing that federal court appointments
(specifically those in Hidalgo County, located in south Texas and a part of the 5th
Circuit) may not be turned down if counsel is licensed to practice in federal court
because his or her name is automatically added to the court’s judicial appointment
rotating system. Such judicial appointments may be challenged by counsel if his or
her person is in danger or if a moral issue arises; however, these are very narrow
exceptions).
185
& Quintana, LLP (Jul. 22, 2010) (discussing how federal court appointments are
assigned in the south Texas/5th Circuit region).
186
136
possibly know about immigration statutes or codes? The historic lack

of emphasis on the importance and need of immigration law courses
for students who intend to take immigration cases in practice has
resulted in the needless deportation of thousands of non-citizens,187
violations of constitutional rights,188 and legal malpractice claims due
to ineffective assistance of counsel.189
Some opponents to this proposal might claim that the addition
of another mandatory law course is too difficult and cumbersome.
However, change is necessary because the world of law is not
complacent.190 In fact, other law schools have effectively added
courses to their mandatory curricula because of societal and political
changes.191 For example, in 2006, Harvard Law School announced a
change to its first year curriculum that added International Law.192
187
Sweeney, supra note 4, at 47 (“Thousands of long-term legal permanent
residents are removed from the United States each year because they have been
convicted of criminal offenses, many quite minor.”).
188
Janvier v. United States, 793 F.2d 449, 451 (2d Cir.1986) (“It is well established
that a defendant to a criminal prosecution has a Sixth Amendment right to the
effective assistance of counsel at all critical stages of the prosecution where his
substantial rights may be affected, and that sentencing is one such stage.”).
189
Padilla, 130 S. Ct. at 1473 (“Counsel engaged in deficient performance by
failing to advise defendant that his plea of guilty made him subject to automatic
deportation.”).
190
Jonathan D. Glater, Harvard Law Decides to Steep Students in 21st-Century
Issues, N.Y. TIMES, Oct. 7, 2006,
http://www.nytimes.com/2006/10/07/education/07harvard.html?_r=1(quoting Elena
Kagan, former Dean of Harvard Law School, “the world of law has changed . . .
changes in what our students will do and what they will need to know”).
191
See Valencia-Weber, supra note 163, at 750 (discussing the importance of Indian
law competency among New Mexico licensed attorneys); see also Leib, supra note
181, at 169 (discussing Harvard’s inclusion of International Law); see also Molly
Davis, Law School Revises First Year Courses, THE EMORY WHEEL, April 1, 2010,
http://www.emorywheel.com/detail.php?n=28266 (“Changes to the first-year
curriculum include the addition of a required course about legislation and
registration to be taken during the first semester . . .”).
137
Also, Emory School of Law announced on April 1, 2010, that it too

was going to make a change in the first year curriculum by adding
Legislation and Registration.193 Such law schools decided to progress
and adhere to the changes in society. Similarly, it is time for
immigration law to be prioritized and added to the law school
curricula, particularly in states with high immigration. Future lawyers
must be introduced to immigration law during their three year
enrollment in law school, specifically the liabilities that will ensue
from ineffective assistance of counsel for non-citizens.
Proposal 4: Reinstatement of JRAD
Moreover, the courts’ decisions on previous immigration

cases illustrates increased criminalization in immigration law and a
lack of judicial flexibility that has resulted in harsh results,
specifically deportation as a consequence of a criminal plea.
Accordingly, this article’s fourth proposal is that Congress restore the
judicial recommendations against deportation procedures, primarily
for lawful permanent residents.
Judges handling cases that involve non-citizens are best
equipped to decide if non-citizen defendants deserve the opportunity
to remain inside the United States after serving their rendered
sentence(s); therefore, deportation decisions should be left to Judges
and not Congress. Such would ensure that immigration judges would
be able to afford a humanized effect on each case.194 The presiding
judge would render a judicial recommendation against deportation if
the non-citizens could show that they deserved a second chance.195
Section 212(c) removal relief would again be based on the weight of
192
Leib, supra note 181, at 169 (“Harvard’s inclusion of International Law in the
required first year curriculum has been treated by some as having political and
ideological content.”).
193
Davis, supra at note 189.
194
E.g., Lonegan, supra note 5, at 56 (referring to judge expressing regret for
deporting a lawful permanent resident after being convicted of possession of $5
worth of cocaine, a crime that carried a fine of only $250).
195
Sweeney, supra note 4, at 60.
138
the negative factors against the positive factors.196 Thus, the

immigration judge would again be given the opportunity to “balance
the positive and adverse factors and then decide on the record as a
whole whether the [non-citizen] applicant was deserving of a positive
exercise of discretion.”197 By instituting such a change, immigration
judges would once again be able to afford each person facing
deportation an individualized and fair opportunity to be heard.
VI. CONCLUSION
Padilla certainly stands as a case of first impression. The

Court in Padilla affirmed that immigrants should not be held
accountable when they rely on incorrect advice from their lawyers or
where counsel fails to provide any immigration advice at all.198 The
Padilla Supreme Court opinion stated that, under the U.S.
Constitution, no criminal defendant, whether a citizen or not, should
be left to the mercies of incompetent counsel.199 The significance of
the Padilla holding is that defense counsel now has to inform clients
of possible immigration consequences. The Court stated that changes
to U.S. immigration laws have dramatically raised the stakes of a non-
citizen's criminal conviction and further expressed that providing
accurate legal advice for non-citizens accused of crimes has never
been more important.200 The right to counsel is at the very core of our
196
Id. at 61 (“Negative factors . . . include the nature and underlying circumstances
of any immigration violation or ground for exclusion [including] the nature and
seriousness of any criminal convictions, [weighed against] family ties in the United
States, residence of long duration, age at entry, hardship to the family or the
applicant if deported, employment history, property, military service, service to the
community, evidence of rehabilitation, and other evidence of good character.”).
197
Id.
198
199
Id. at 1493.
200
Id. at 1476.
139
criminal justice system, and such constitutionally mandated right is to

be protected and upheld at all times.
The Sixth Amendment guarantees effective assistance of
counsel and those in the legal profession hold the key to providing
that constitutional right. Legal knowledge comes primarily from the
legal forum and legal education arenas. Let us no longer allow one
more immigrant to be deported because of a lack of legal knowledge.
Lawyers have been afforded the right to speak and advocate for
others; therefore, let us not deviate from the beauty of our justice
system: fairness to all.
140
141
WOMEN, POSTPARTUM DEPRESSION, AND CAPITAL PUNISHMENT
ONIKKI T. WALKER
I. Introduction
Once the mind of man becomes nurtured through education,

he can no longer remain still or content in his current setting. When
the seed of knowledge is planted, man will alter his surroundings to
ensure that his social, moral, and physical environment correspond
with his newfound awareness. The constant evolution of man’s
awareness is all too evident in the American legal system, and can be
found at the very core of conversations regarding capital punishment
in this country.
Seventy four years have gone by since man considered it
socially acceptable to conduct legal executions before the public.1 As
medicinal knowledge has advanced, modern methods of capital
punishment such as lethal injection2 and electrocution,3 have aroused
more than mere suspicion that these formerly acceptable procedures,
may not only be inhumane,4 but “cruel and unusual” means of
1
NPR: The Last Public Execution in America,
http://www.npr.org/programs/morning/features/2001/apr/010430.execution.html
(last visited March 22, 2011) (explaining that the last legal public execution in
America occurred in Owensboro, Kentucky).
2
Kyle Janek & Leonidas Koniaris, Execution By Lethal Injection Branded
Inhumane, NEW SCIENTIST, Apr. 23, 2005, at 6, available at
http://www.newscientist.com/article/mg18624963.500-execution-by-lethal-
injection-branded-inhumane.html.
3
Nergui Manalsuren, Rights-US: One Electric Chair Band Can Lead To Others,
http://ipsnews.net/news.asp?idnews=41529 (last visited March 19, 2011).
4
News.Sky.com, Death Row Execution Fails in Vein Blunder,
http://news.sky.com/skynews/Home/World-News/Romell-Brown-Ohio-Prison-
142
punishment per the Eighth Amendment of the United States

Constitution.5
As the standard for what is considered to be an inhumane
method of punishment has changed, it is only natural that the category
of persons who would be on the receiving end of such punishment
also be reevaluated. Today, the Supreme Court of the United States
has prohibited the death penalty for both juveniles6 and the mentally
retarded.7 Considering the minuscule presence of women on death
row,8 it would be easy to assume that issues specifically pertaining to
women and capital punishment would have no place amongst
discussions concerning those who should be considered “less culpable
than the average criminal.”9 The truth however, is that the small
number of women who receive the death sentence has brought
massive attention to the commonality of crimes these women commit
to become eligible for the death penalty. Because there exists an
undeniable trend amongst female murderers to kill their children,10
Injection-Failed-Vein-Attempt-Postpones-Execution-On-Death-
Row/Article/200909315382334 (last visited March 26, 2011).
5
David Heffernan, America The Cruel And Unusual? An Analysis Of The Eighth
Amendment Under International Law, 45 CATH. U. L. REV. 481, 488-489 (1996)
(the Eighth Amendment was adopted, as part of the Bill of Rights, in 1791 and
prohibits excessive bail and cruel and unusual punishment. Cruel and unusual
punishment describes criminal punishment which is considered barbaric and
torturous or punishment which inflicts wanton or unnecessary pain).
6
Roper v. Simmons, 543 U.S. 551, 559 (2005) (holding that the execution of
individuals who are under 18 years of age at the time of their capital crimes is
prohibited by the Eighth and Fourteenth Amendments).
7
Atkins v. Virginia, 536 U.S. 304, 306 (2002) (Justice Stevens, held that executions
of mentally retarded criminals were “cruel and unusual punishments” prohibited by
Eighth Amendment).
8
Victor Streib, Death Penalty for Female Offenders, June 30, 2009,
http://www.deathpenaltyinfo.org/news/past/31/2009.
9
Atkins v. Virginia, 536 U.S. 304, 316 (2002).
10
Victor Streib, Death Penalty for Female Offenders, June 30, 2009,
http://www.deathpenaltyinfo.org/news/past/31/2009.
143
lawmakers must take into consideration that postpartum depression

could be triggering many of these crimes, and thus, should be
available as an affirmative legal defense to capital punishment.
Currently under the American judicial system, the mentally
retarded are ineligible for death sentencing11. Acknowledging that
postpartum depression is recognized as a legitimate mental disorder
by the American Psychiatric Association,12 this article argues that
women who kill their children as a result of postpartum depression,
should also be exempt from capital punishment.
II: Postpartum Depression vs. The Baby Blues
From actress-model Brooke Shieldses candid confession,13

popular television Soap Opera General Hospital’s 2009 storyline,14 to
the national headlining news of Andrea Yates,15 television is
introducing millions of Americans to postpartum depression.
Arguably, this type of media attention should drive laypersons and
legislators alike, to seriously regard postpartum depression as more
than just the “baby blues.”16
11
Id.
12
Algent Health.com, Differences Between Postpartum Depression and Postpartum
Psychosis, http://www.alegent.com/18729.cfm (last visited March 26, 2011).
13
Today.MSNBC.com, Brooke Shields Battles Postpartum Depression,
http://today.msnbc.msn.com/id/7748616/ns/today-books/, (last visited March 26,
2011) (Brooke Shields famously came under attack from fellow actor Tom Cruise
for taking medication to deal with depression after the birth of her first child).
14
Gabrielle Winkel, Postpartum Post-Op,
http://www.soapoperadigest.com/features/general-hospital/interviews/postpartum-
post-op/ (last visited March 27, 2011).
15
Yates v. State, 171 S.W.3d 215 (Tex. 2005).
16
Science Daily.com, More Than Just Baby Blues: How Postpartum Depression
Arises and How It Could Be Prevented,
http://www.sciencedaily.com/releases/2010/06/100616102854.htm (last visited
March 27, 2011).
144
Postpartum depression and the “baby blues” are not the same.
“Baby blues”17 refers to the normal changes in mood that new
mothers experience shortly after childbirth; whereas postpartum
depression is a recognized mental disorder.18
Nearly 70 percent of women experience sleeplessness,
anxiety, irritability, sadness, and loss of appetite immediately
following childbirth.19 These symptoms are all associated with “baby
blues” and usually fade within the first few weeks after childbirth.20
Years ago “baby blues” were accepted as the normal mood swings
that accompany child bearing, but there were no real answers about
what was triggering this behavior in new mothers.21 Researchers
have since discovered that “baby blues” symptoms are directly related
to the dramatic loss of estrogen and changes to enzymes in the
woman’s brain following childbirth.22 The physical strain that giving
birth has on a woman’s body only enhances the symptoms of “baby
blues,” but after two weeks, the symptoms usually fade and hormone
levels return to normal.23 Severe symptoms that last longer than two
weeks, are usually tell tale signs that a woman could be suffering
from postpartum depression.24
17
FamilyDoctor.org, Postpartum Depression And The Baby Blues: Are Mood
Swings Common After Childbirth?,
http://familydoctor.org/online/famdocen/home/women/pregnancy/ppd/general/379.
html (last visited March 27, 2011).
18
See supra note 12.
19
See supra note 16.
20
See supra note 12.
21
See supra note 16.
22
Julia Sacher et al., Elevated Brain Monoamine Oxidase A Binding in the Early
Postpartum Period, 67 Arch Gen. Psychiatry 468, 468-74 (2010), available at
http://archpsyc.ama-assn.org/cgi/content/abstract/67/5/468.
23
Pregnancy-Info.net, The Baby Blues, http://www.pregnancy-
info.net/baby_blues.html (last visited March 27, 2011).
24
See supra note 12.
145
Distorted reality, extreme levels of frustration, as well as

thoughts of death and suicide, are all symptoms that medical experts
have come to associate with postpartum depression and psychosis.25
Unlike “baby blues,” postpartum depression will not fade within days
or weeks without the assistance of a medical professional.26 Women
who suffer from postpartum depression require professional treatment
that may include medication, therapy, and in some instances a
combination of both.27 Without treatment, postpartum sufferers may
act upon their depression to dire results.28 Postpartum sufferer,
Andrea Yates, brought international attention to the disorder and the
consequences of not treating the condition adequately.29
III: The Tragedy of Andrea Yates
Andrea Yates (“Yates”) and her husband Russell (“Russell”)

welcomed their first child, Noah, in February 1994; their second
child, John, was born in December 1995; and their third child, Paul,
was born in September 1997.30 After her third pregnancy, Yates told
Russell that she felt depressed and overwhelmed, however, Russell
suggested that she talk to her mother and a friend – neither of which
25
WebMd.com, Postpartum Depression Symptoms,
http://www.webmd.com/depression/postpartum-depression/postpartum-depression-
symptoms (last visited March 27, 2011).
26
Health.Google.com, Postpartum Depression,
https://health.google.com/health/ref/Postpartum+depression (last visited March 27,
2011).
27
Id.
28
Maya Palmer & Eboni J. Baugh, Postpartum Depression, Jan. 2008,
http://edis.ifas.ufl.edu/pdffiles/FY/FY100800.pdf.
29
See supra note 12.
30
Yates v. State, 171 S.W.3d 215, 216 (Tex. 2005).
146
were mental health care professionals.31 Despite Yateses feelings of

depression, their fourth child, Luke, was born in February of 1999.32
Four months after the birth of Luke, Yates suffered severe
depression and tried to commit suicide by taking an overdose of an
antidepressant that had been prescribed for her father.33 Yates was
admitted to the psychiatric unit of Methodist Hospital only to be
released six days later under the outpatient care of psychiatrist, Dr.
Eileen Starbranch.34 On July 20, 1999, after Russell found her in the
bathroom with a knife to her neck, Dr. Starbranch recommended
Yates be admitted to Spring Shadows Glen Hospital.35 At the
hospital Yates revealed that she had visions and heard voices since
the birth of her first child; symptoms most commonly associated with
the most extreme form of postpartum depression - postpartum
psychosis.36 Before discharging Yates from the hospital, Dr.
Starbranch warned Yates and Russell, that there was a high risk of
another psychotic episode if Yates had another baby.37 Despite the
warning, Yates gave birth to her fifth child, Mary in 2000.38
In March 2001, following yet another serious spell with
depression, Yates was admitted to Devereux Hospital where she was
observed as being catatonic or nearly catatonic, and possibly
delusional or having bizarre thoughts.39 Under new treatment from
Dr. Mohammed Saeed, Yates was placed on suicide watch, however,
she was discharged on April 13, 2001 upon her own and Russell’s
31
Id.
32
Id.
33
Id. at 217.
34
Id.
35
Id.
36
37
Id.
38
Id.
39
Id.
147
request.40 At the time of her release from the hospital, Dr. Saeed
recommended that someone stay with Yates at all times, and advised
that she not be left alone with her children.41 In April 2001, Russell’s
mother began to visit the Yateses home every day and observed that
Yates was almost catatonic, nonresponsive to conversation, stared
into space, trembled, scratched her head until she created bald spots,
and did not eat.42
On May 3, 2001, Yates filled a bathtub with water.43 When
asked why she had run the bath, Yates said, “I might need it.”44 After
a ten day re-admittance to Devereux Hospital, Yates received
medication and was again discharged from the hospital.45 Although
Yates was still uncommunicative and withdrawn, Russell decided that
it was not unsafe to leave his wife alone with their children.46
On June 20, 2001, at 9:48 a.m., Yates called 9-1-1 and told the
operator that she needed an officer to come to her home because she
had drowned her five of children.47 Yates was subsequently charged
with capital murder for the deaths of her children.48 Despite
legitimate medical documentation, the jury rejected Yateses insanity
defense, and she was subsequently sentenced to serve life in prison.49
However, prosecutorial misconduct ultimately led to a reversal of that
decision.50
40
Id.
41
Id.
42
43
Id.
44
Id.
45
Id.
46
Id.
47
Id. at 218.
48
49
Id. at 215.
50
Id. at 222.
148
The initial Yates decision was considered not only inhumane,

but unjust by many, and almost immediately led to the push for an
Infanticide Bill.51 Currently, in Texas, killing a child under the age of
six is a capital crime, punishable by life in prison or by death.52
Under the Infanticide Bill, postpartum defendants would be found
guilty of infanticide; a felony that carries a maximum two-year jail
sentence, mandatory treatment, and a fine.53 The bill did not pass in
the state of Texas and there is still no national remedy available to
keep postpartum defendants from facing death row.54
IV: Analyzing and Applying the Atkins Decision
The Supreme Court decision in Atkins provides the best reason

why postpartum sufferers should be constitutionally exempt from
facing capital punishment.55 In Atkins, the Court referred to its
reasoning in Gregg v. Georgia56 to examine the social purposes of the
death penalty: retribution and deterrence.57 The Court held that the
imposition of the death penalty on mentally retarded persons would
51
H. 3318, 81st(R) Sess. (Tx. 2009) (LEXIS); NBCDFW, Texas Could Be First
State To Have Infanticide Law, http://www.nbcdfw.com/news/local/Texas-Could-
Be-First-State-to-Have-Infanticide-Law.html (last visited March 27, 2011).
Under the Infanticide Bill, women who commit postpartum related crimes within
one year after giving birth to their children could use postpartum depression as a
legal defense. Instead of facing capital punishment, this crime will be considered a
felony with a maximum two year jail sentence and mandatory mental treatment.
52
Campaign for liberty, http://www.campaignforliberty.com/blog.php?view=17300.
53
H. 3318, 81st(R) Sess. (Tx. 2009) (LEXIS).
54
Legis.State.TX.US, Bill Stages,
http://www.legis.state.tx.us/BillLookup/BillStages.aspx?LegSess=81R&Bill=HB33
18 (last visited March 27, 2011) (illustrating that the Texas House Bill 3318 did not
pass).
55
Atkins v. Virginia, 536 U.S. 304 (2002).
56
Gregg v. Georgia, 428 U.S. 153 (1976).
57
Id. at 183-187.
149
not satisfy either of those purposes.58 In reaching this decision, the

Court relied on evidence that demonstrated mentally retarded persons
tend to act on impulse rather than, in compliance with premeditated
plans.59 The Court also recognized a trend amongst the mentally
impaired to act under the direction of other, stronger minded
individuals.60 The Court reasoned that these tendencies did not
excuse mentally diminished persons for their criminal actions; rather,
these trends provided evidence of their diminished culpability.61 The
Court did not believe that the execution of the mentally retarded
would have any deterring factor on those criminals who were not
retarded.62 Relying on its conclusion in Coker v. Georgia,63 the Court
found that imposing the death penalty on mentally retarded persons
without clear evidence that doing so would achieve the goals of
deterrence or retribution, would not only be a purposeless, needless
imposition of suffering, but an unconstitutional punishment.64
According to the Court’s reasoning in Atkins, the use of the

death penalty as an effective means of deterring potential criminals is
only served when murder is the result of premeditation and
deliberation, or the presence of “cold calculus” before the
commission of the act.65
Many women who suffer from postpartum depression

experience uncontrollable, hormonal changes which often disable the
mind and cause them to act without a conscious.66 It is not
58
Atkins, 536 U.S. at 319.
59
Id. at 318.
60
Id.
61
Id.
62
Id.
63
Coker v. Georgia, 433 U.S. 584, 591-92 (1977).
64
Id. at 592.
65
Atkins v. Virginia, 536 U.S. 304, 319 (2002).
66
See supra note 28.
150
uncommon for women with postpartum depression to feel exhausted,

overanxious, and ashamed of unexpected, intrusive thoughts of
hurting their infant.67 These symptoms are brought on by the body’s
own chemical imbalances and can cause women to act with the same
lack of impulse and rationale that the Court recognized as “cognitive
and behavioral impairments that make mentally retarded defendants
less morally culpable.”68 Women who suffer from postpartum
depression often know the difference between what is right and what
is wrong, but act out as a result of impaired judgment.69 The Court in
Atkins found that this was the case with many retarded persons. Just
as there was no evidence that retarded persons were more likely to
engage in criminal conduct than others, there is no evidence that
women who suffer from postpartum depression are more likely to act
more criminally than others.70
Considering that many of the behavioral deficiencies that the

Court found to make death a purposeless punishment for mentally
retarded criminals are shared by postpartum women, there can be no
constitutional basis for postpartum defendants to face the death
penalty.71 Furthermore, if there is no evidence to show that the
execution of postpartum women would assist in promoting the
deterrent or retributive purposes of the death penalty, there must be a
substantive restriction on the State’s power to take the life of a
postpartum sufferer.72
67
See supra note 28.
68
69
See supra note 66.
70
71
Id. at 320.
72
Id.

Volume 1, Issue 1 of The Law Journal

Enviado por

Dados do documento

Descrição original:

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Volume 1, Issue 1 of The Law Journal

Enviado por

Direitos autorais:

Formatos disponíveis

Gender, Race, and Justice

The Thurgood Marshall School of Law

A ROBUST CONCEPTION OF SPEECH:

A BRIEF LOOK AT THE CONSTITUTIONALITY OF

PADILLA v. KENTUCKY: KEEPING UP WITH SOCIETAL CHANGES-

WOMEN, POSTPARTUM DEPRESSION , AND CAPITAL PUNISHMENT

Volume 1 2011 Issue 1

Volume 1 2011 Issue 1

Published Annually by Students of the

The Journal collects manuscripts year round via email to

Citations conform to A Uniform System of Citation (19th ed.

Please refer to http://www.tsulawjournal.org for more

Copyright © 2011 TMSL Gender, Race, and Justice Law Journal

Cite As: 1 T. Marshall L.J. Gender, Race & Just. 1

Dr. John M. Rudley, B.B.A., Ed.M., Ed.D

Thurgood Marshall School of Law Administration

Dannye Holley, B.A., J.D., Dean, School of Law

"Injustice anywhere is a threat to justice everywhere."

VOLUME I 2011 ISSUE I

Azuwuike Okorafor Jay Johnson

Crystal Graham Erika Glenn

Aleece McKnight Julie Wenah

VOLUME I 2011 ISSUE I

THE ART OF PREJUDICE: EXAMINING THE MINORITY EFFECT INSIDE

PROVIDING LEGAL OPTIONS FOR THE BATTERED WOMEN WHO

A ROBUST CONCEPTION OF SPEECH:

A BRIEF LOOK AT THE CONSTITUTIONALITY OF

PADILLA v. KENTUCKY: KEEPING UP WITH SOCIETAL CHANGES –

WOMEN, POSTPARTUM DEPRESSION, AND CAPITAL PUNISHMENT

THE ART OF PREJUDICE: EXAMINING THE MINORITY

“As American society has matured, blatant forms of racism

A. Summary of Recent Case Law

In the 2010 decision of TXI Transp. Co. Inc. v. Hughes,4 the

Rodriguez’s credibility.13 However, the Hugheses argued that

impression that TXI should be held liable because it hired Rodriguez

The recent decisions in TXI Transp. Co. Inc. v. Hughes and

The purpose of this article is to examine how the courts

This research is inspired by recent state court decisions which focused

Prejudicial issues have surrounded this country since the

court declared, “Cases ought to be tried in a court of justice upon the

on which the majority of the states have designed their individual

Rule 403 is a general rule applicable to all forms of evidence,

A. The Threshold to Admit Relevant Evidence v. Collateral Matters

Many State and Federal Courts have been torn on how to

the identified fact more probable.51 “When evidence is likely to

struck down by courts.60 “A prosecutor makes a non-derogatory

remaining evidence was independently sufficient to support the

B. The Standard of Fairness

1. The Prejudicial Impact Standard: A Look into the Interpretation of

The goal of Rule 40373 is to eliminate the obvious occurrence

United States v. Ham,76 the Fourth Circuit court acknowledged, “[w]e

into the case of Rodriguez's nationality, ethnicity, and illegal-

2. State and Federal Court Assessments

The denial of due process results in the failure to observe that

consideration.94 For example, in the 1946 case of Peck v. Bez,

because that portion of the witness’s testimony was not probative of

witness’s character to his religious beliefs.119 The dissenting opinion

3. Court’s Analysis: Revisiting TXI Transp. Co. Inc. v. Hughes and

Upon reviewing the trial court’s decision in TXI Transp. Co.

concerned his immigration status.124 Also, during the trial, jurors

The Court’s decision to reverse the trial court’s holding is

passions and prejudices, and are generally improper and inadmissible