Tag: Social Justice

Welcoming the Stranger: Faith Communities and Immigration

Boom California on January 3, 2018

Alexia Salvatierra

In the thirty-fifth chapter of the Book of Numbers in the Hebrew Bible, the writer lays out a remedy for a social and legal problem. In ancient Israel, the penalty for murder was death, “a life for a life.” Family members of the slain person normally carry out the sentence. However, the writers of Numbers recognized that it would not be fair for accidental killers to receive the same punishment as those who kill intentionally. Raging family members could not be expected to stop midstream and investigate; the community is instructed to create cities of refuge where the accused can be kept safe until they can receive a fair hearing. The cities of refuge are the solution for people who committed a crime and received an unfair penalty.

This ancient remedy is the root of the sanctuary church tradition. Since the fourth century in England, churches have offered protection and shelter to those accused of a crime but who would be likely to be punished unfairly if left unprotected. Christians and churches along the Underground Railroad followed this example, as did Christians in Nazi Germany who protected Jews and churches in the 1960s who protected draft-dodgers avoiding service in Vietnam. The most prominent movement using the term “sanctuary” in the twentieth century was the Central American sanctuary movement of the 1980s and 1990s.

In Tucson, Arizona, Reverend John Fife of the Presbyterian Church U.S.A. and Quaker leader Jim Corbett encountered Central Americans running for their lives from death squads who were targeting not only revolutionaries but also Christian leaders of justice movements. These asylum-seekers were facing different criteria than individuals escaping Communist countries; the United States was an ally and funder of the governments supporting the death squads. When Human Rights Watch and Amnesty International were documenting government-sponsored massacres, a very small percentage of Central Americans were winning asylum cases. The sanctuary movement began at Southside Presbyterian Church in 1982, under Reverend Fife’s leadership, and ended up involving around 500 congregations across the United States. By risking legal penalties themselves, these congregations brought public attention and added credibility to the Central Americans’ testimonies. The sanctuary movement changed hearts and minds, contributing significantly to major policy changes in the asylum system (such as the awarding of temporary protected status to Central Americans in 1990) and in stopping the funding which sustained the civil wars in Guatemala and El Salvador. While the sanctuary movement was infiltrated and the leaders faced a grand jury trial in 1986, only two leaders received prison sentences for illegal transportation and six others were convicted of alien smuggling with suspended sentences; none were convicted for the actual provision of shelter.

While a young seminary student in Berkeley during the Central American sanctuary movement, I belonged to University Lutheran Chapel, one of the first sanctuary churches. During this time, my husband and I also welcomed a refugee from Central America into our home, which was a formative experience, displaying the potential power of the church as a force for social justice.

Years later in 2006, I became one of the leaders of a new sanctuary movement. The Sensenbrenner Bill had passed the House of Representatives in December of 2005;[1] if it had also passed the Senate, it would have made it a felony to be undocumented or to help or serve an undocumented person. Shock waves went through immigrant communities and congregations alike. For many years, the U.S. immigration system had already proven to be ineffective, illogical, and inhumane. For example, since 1995, the number of visas available for unskilled labor has been a flat limit of 5,000 per year; since the 1800s, the U.S. has imported 70 to 80 percent of our farm labor.[2] The numbers do not match and therefore as a result, the majority of those whose labor feeds the country cannot enjoy the benefits of legal residency.

Faith communities felt compelled to respond to their plight, both from compassion and because our traditions are clear about the call to do so.

This broken system has created a situation over the past thirty years in which undocumented immigrants are woven into the fabric of communities in many regions of our country. When they suddenly saw themselves as potential felons, the anguish, anger, and terror became overwhelming. Faith communities felt compelled to respond to their plight, both from compassion and because our traditions are clear about the call to do so. There are ninety-two texts from the Hebrew and Christian scriptures calling us to welcome the stranger. The Sensenbrenner Bill also put church leaders directly in danger; it was written so loosely that churches could have been liable for the provision of both humanitarian and religious services to the strangers in our midst. Faith leaders throughout the country struggled to figure out the best response to the crisis.

Then, in his Ash Wednesday sermon of 2006, as the Roman Catholic Archbishop of Los Angeles at the time, Cardinal Roger Mahony called on Roman Catholics across the nation to continue to minister to everyone regardless of their immigration status… even if they were to go to prison for it.[3] Religious leaders from different faith traditions in Chicago, New York, and Los Angeles decided that it was time for a new sanctuary movement. We wanted to replicate the impact of the late twentieth century movement—to call attention to the brokenness of our immigration system and the need for reform rather than unjust punishment. We believed that the willingness of immigrants and non-immigrants to engage in a potentially sacrificial partnership could have the capacity to again change hearts and minds, and to ultimately affect legislation. However, we also realized that the situation was very different than the ’80s. We realized that we did not have the capacity to shelter millions of people indefinitely. Nor did most of the undocumented immigrant population want to live in churches; unlike the Central American refugees they were established in the U.S.—complete with jobs, homes, and children in school. The strategy we developed focused on inviting families whose stories would communicate the brokenness of our system to enter publicly into sanctuary, taking risks and making sacrifices for the sake of a greater goal. At its height in 2007, coalitions of congregations in thirty-seven cities were participating in some form. While Adalberto United Methodist Church in Chicago kicked off the movement, Clergy and Laity United for Economic Justice of California became the national lead agency for the new sanctuary movement, and the New York City New Sanctuary Coalition served as a national model. This was a movement that also went beyond Christian congregations—there were too many individual leaders and congregations to name: Catholic, Protestant, Evangelical, Unitarian, Jewish, and Muslim.

The new sanctuary movement received massive publicity, and an equivalent bill to Sensenbrenner’s did not pass the Senate. By June 2007, a comprehensive immigration bill with strong bipartisan support was polling at 75 percent in support. We thought that we would win and our families could go home. Unfortunately, the calls to legislators were 50 to 1 against the bill. The majority of Americans usually do not call their representative unless the proposed legislation directly affects them. Most of those whose answers to the surveys were positively in favor of the bipartisan immigration reform bill did not call their legislators and those who thought immigration negatively affected their lives called repeatedly. There was not enough political will to pass immigration reform.

The new sanctuary movement changed direction and worked on a temporary alternative to reform, seeking a regulatory safety net that could soften the impact of the jagged edges of the broken system while the immigrant rights movement continued to strive for legislation over the long haul. Immigration field office directors have prosecutorial discretion to delay deportation for specific cases; they can even grant work permits and temporary authorization to reside in the U.S. Over the next ten years, the sanctuary movement (in collaboration with other immigrant rights advocates) pushed for national criteria for the granting of deferred deportation and temporary permissions. In August 2010, the “Morton Memo,” named such after then-director of U.S. Immigration and Customs Enforcement (ICE) John Morton, established a new policy that prioritized immigrants who represented threats to public safety for detention and deportation, and authorized deferred deportation for immigrants who met certain qualifications. This gave annual protection from deportation to tens of thousands of people who met the criteria, which amounted to having ties to residential U.S. citizens, making contributions to U.S. society, and/or having dangerous conditions in their countries of origin. The Deferred Action for Childhood Arrivals, or DACA, was the extension of this logic by President Obama’s 2012 Executive Order, prioritizing this for a group instead of requiring a case-by-case process. DACA, which gave 800,000 “Dreamers” temporary authorization to reside and work in the U.S., built on the foundation laid by the Morton Memo.

The sanctuary movement also successfully advocated for the creation of sensitive zones where ICE would not enter without a judicial warrant, including congregations, schools, and hospitals. In 2014, Church World Service took on a coordination role and the new sanctuary movement experienced a resurgence of families living in churches publicly. Over the years, the new movement developed a high level of expertise in using the new regulations to enable these families to have their deportation orders suspended or removed.

Since the election of President Donald Trump, somewhere between 800 and 1,000 congregations have declared sanctuary across the country—double the size of any sanctuary movement to date. New coalitions continue to spring up weekly. However, the vast majority of these congregations do not have families taking shelter inside them. Any standard for prioritization of enforcement is gone; the new administration’s Border Security and Immigration Enforcement Improvement Executive Order treats immigration offenses as crimes equal in importance to other serious criminal offenses. Living inside a church is, in effect, an indeterminate sentence of house arrest and a potential financial disaster for a family. Publicly living inside a church can invite bullying for the children and death threats for the adults. While a few immigrant families make this choice, the more common form of sanctuary is private. Individuals or families move into a church building or a private home to escape an address that ICE knows, ideally in a community where they can start over again and hide in the shadows. Their stay in sanctuary is temporary; as soon as possible they move into their own lodging and a new life in greater obscurity. These private cases, however, do not serve to change hearts and minds of legislative officials or those in the wider U.S. culture, nor do they offer any real solution to the broader problem. Member coalitions of the interfaith PICO organizing network have been particularly involved in developing private sanctuary options as well as engaging their congregations in other aspects of sanctuary work.

Beyond Sanctuary: Advocacy and Accompaniment

Although a movement had been renewed, or reborn, the failures to pass the Comprehensive Immigration Reform Act of 2007 and the Dream Act (multiple attempts in 2001, 2005, and 2007) could be seen as evidence that the coalition supporting immigrant rights lacked the breadth and depth necessary to create the political will for reform. There are too few American citizens who feel that the lack of humane immigration law affects them personally. At this point, evangelical leaders in various places in the country, including Willow Creek leadership in Chicago and several megachurch leaders in Orange County began to ask, “What role might the church play today in broadening and deepening this coalition because of our mandate to care passionately about people who are not ‘us’?” This group reasoned that if the church does not care passionately about the well being of all people, including immigrants, then the church is not faithful to Jesus. We realized that the evangelical churches were uniquely positioned to make a difference in the stalemate. Evangelical churches are passionate in their discipleship; and evangelicals are known for being willing to make great sacrifices for obedience to God and for mission. The international Hispanic community is one of the fastest growing evangelical constituencies in the world. The 2014 study by the Pew Research Center “Religion in Latin America” states that the Central American countries of Guatemala, El Salvador, and Honduras are is now estimated to be over 50 percent evangelical. In the U.S., immigrants from Latin America and Asia are the fastest growing population within evangelical churches. Evangelical churches are also often associated with the Republican Party because of their stance on abortion. As a result, they are uniquely equipped to work on organizing conservatives to work with liberals to pass immigration reform.

In 2011, I was one of the co-founders of the Evangelical Immigration Table (EIT), along with Jenny Yang from World Relief, with significant leadership provided by a diverse set of national evangelical organizations and denominations, including Sojourners, the National Association of Evangelicals, the Southern Baptist Convention, Esperanza USA, and the Christian Community Development Association. (The National Immigration Forum served as a resource for the EIT.) The EIT became the broadest coalition of evangelical leaders for justice since the slavery abolition movement of the mid-nineteenth century. At its height, the coalition engaged immigrant and non-immigrant evangelicals in peer partnership; the signatories to its principles included famous megachurch pastors, denominational leaders, seminary presidents, and traditional evangelical organizations like Focus on the Family and InterVarsity Christian Fellowship.[4] When the Table was formed, polls showed that 83 percent of white evangelicals were against immigration reform. Just three years later, however, polls in 2014 showed 72 percent of white evangelicals were for immigration reform. The EIT has also given birth to G92, a movement based in Christian colleges and universities, and Bibles, Business, and Badges, a coalition of law enforcement, business leaders, and church leaders supporting immigration reform. While there is still strong conservative support for immigration reform, the advent of the Trump movement has certainly weakened that movement—both through the stimulation of strong nativist impulses and the fear created in moderate Republicans.

When the new Executive Orders appeared in January, many of us who had been involved with the EIT knew that evangelicals who had voted for Trump might still be interested in standing with immigrants in the face of the unjust policies and practices which separate families and destroy dreams. The leadership of the Christian Community Development Association and Sojourners, along with the National Evangelical Latino Coalition, leading African-American organizations like the National African-American Clergy Network, the Progressive Baptists denomination, and the Christian-Muslim dialogue organization Shoulder2Shoulder came together around what we called the Matthew 25 Pledge. In Matthew chapter 25 of the Christian New Testament, Jesus says that our welcome, or lack of welcome, for strangers is the same as welcoming, or not welcoming, him. Signatories to the Matthew 25 Pledge agree to protect and defend the vulnerable in the name of Jesus.[5] Immigrants are not the only vulnerable people potentially covered under the pledge; the Matthew 25 website has resources for standing with immigrants, young people of color experiencing discrimination in the criminal justice system, and Muslims experiencing discrimination as immigrants, refugees, or citizens. Matthew 25 has a signal committee of leaders for the purpose of sounding a national call to action if needed.

In Southern California, Matthew 25/Mateo 25 has become a vital coalition of evangelical and moderate mainline Protestant congregations in which immigrant churches, Millennial Latino leaders, multicultural churches, and primarily Anglo congregations have engaged in a broad range of advocacy and accompaniment activities. Matthew 25/Mateo 25 SoCal has actively educated congregations, trained leaders, and joined the broader movement in advocating for policies which protect and support immigrants, such as the Dream Act and public sanctuary legislation. It has also met with ICE leadership for dialogue, advocating for individual cases of egregious injustice, partnering immigrant and non-immigrant churches to provide legal resources and spiritual/psychological support to families facing deportation, and helping with family plans to care for citizen children whose parents are deported.

Our church partnerships with individual family cases are fueling the exchange of hope and passion in ways that grow participation in the movement. Two to three churches can handle the needs of a family, with one providing emotional and spiritual support and the others providing financial and professional support—allowing for many more families to be served than the typical model of getting everyone in a network to work on every case. The two to three congregations that accompany that family can then call on the resources of the broader network as needed.

Recently, Matthew 25/Mateo 25 SoCal created a national campaign to support Pastor Noe Carias, a Guatemalan immigrant who came to the U.S. at age 13 after escaping kidnapping. After being deported multiple times before he turned 21 years old, he eventually married a U.S. citizen and had two children, managed a construction business and became an Assemblies of God pastor, founding a thriving church in Echo Park. In his attempt to have his deportation orders removed so that his qualifying cases could be considered, he was detained for two months in Adelanto—a detention center in the Mojave Desert known for its various inhumane conditions,. Brave New Films produced a documentary on Pastor Carias’s situation, which has gone out widely through social media.[6] The Anglo General Superintendent of the Assemblies of God (the fastest growing Pentecostal denomination in the world, with 3.5 adherents in the U.S.) went to the White House to advocate for Pastor Carias, who was released 22 September 2017, even while his case continues.[7]

Matthew 25 and the interfaith sanctuary movement collaborate closely without adherence to the partisan lines that currently divide the country. In doing so, they stand on common ground in the defense of those who suffer unjustly.

In Southern California, leaders from the Southwest California Synod of the Evangelical Lutheran Church in America and the Presbyterian Church U.S.A. developed another accompaniment and advocacy mechanism, which is particularly focused on a group targeted by the current administration. The unaccompanied migrant children and youth who have arrived seeking asylum from Central America are a particular target of the Executive Orders. The situation in the Northern Triangle of Central America (El Salvador, Guatemala, and Honduras) is especially difficult currently, with the Marasalvatrucha functioning an international mafia that survives from the proceeds of gun, drug, and human trafficking, as well as the extortion of small businesses (over $600 million USD a year). They tell young men that they have three choices—join, run, or die. If they join, they have to show that they are serious by killing a family member (per the reports we have been recently hearing from specific youth). Girls are expected to become “girlfriends of the gang.” Younger children are targeted for kidnapping and selling to get small business owners to pay the daily “renta” (literally, rent payment). In the increasing geographic area targeted by the Mara, the police are corrupt, and controlled. One woman recently shared that she was raped repeatedly by a group of Mara and police when she complained to the police about the threats and extortion. Unaccompanied children and youth who pass a credible fear test at the border (about 60 percent) have historically been allowed to be investigated by a special asylum office which determines whether they meet the criteria for asylum (which is the same as the criteria for refugee status—valid fear of violent persecution in one’s home country as a result of race, gender, political opinion, religious belief, etc.).

In November of 2017, the State Department made an announcement ending the potential for that designation for Central American children and stopping the option of processing them through a refugee center in Costa Rica. The current administration has also targeted sponsors of undocumented children, often targeting extended family members who agree to care for children without compensation while the undocumented children are processed through the court procedures, which permits them to be free from incarceration. Beyond this, the administration has detained and deported children who turn 18 years old even if their court cases are in process; they have cut off all federal funding for legal assistance and have charged non-profit legal services providers with malpractice if they coach families on representing themselves; and they have charged family members in the U.S. with human trafficking if they helped with the cost of a smuggler to bring the child safely. (A young girl on the road heading north without any protection is very likely to be raped by Mexican police and criminals.) We recently had scheduled a youth to speak at an event; he was detained, deported and shot on arrival. His mother came to speak instead; she could not speak; she could only cry.

The current administration’s enforcement policies trash the twenty-year development of rational and humane regulatory policies, creating instead various levels of individual and family destruction, which is difficult to bear.

In 2014, when the numbers of these children and youth began to climb, we started the Guardian Angels Project, engaging church volunteers in accompanying these children and their families in court. We wear brightly colored t-shirts with an image of a guardian angel and we refer these families to legal assistance and social services while monitoring the courts to ensure that their rights are respected. When we began, the courts were regularly practicing “rocket docket,” rushing the cases through whether or not legal representation was available. Our presence stopped that practice within months. We also protect families from the unscrupulous lawyers and notary publics who take their money without providing effective representation (on the principle that a deported person cannot take them to court for fraud). We urge the families instead to use reputable resources, even if they have to wait in line. The Guardian Angels Project began in Southern California but has since spread to Chicago and is in the process of development in Atlanta and Houston.

Other faith leaders and networks also minister to these children, youth, and their families. The United Methodist Church organizes “welcome centers” in some of their churches, and provides a summer camp experience specifically focused on them and their needs, whereas the Lutheran and Presbyterian churches provide the backbone of the Guardian Angels Project. The Episcopal Church supports and advocates for these families as well. All of us participate in the Southern California-based coalition UCARE (Unaccompanied Central American Refugee Empowerment), an association of faith leaders, community organizations, and legal services providers who are concerned about this situation, which is coordinated by CLUE (Clergy and Laity United for Economic Justice.)

Where from here?

The faith-based movement for immigrant rights and immigration reform is the one of the best-kept secrets in the country. In spite of ongoing press, most Americans still do not know that a diverse and significant group of faith leaders in this country, regardless of their political party affiliation, care passionately about justice for immigrants targeted unfairly by the current administration. At times, belonging to this group can feel like Moses, so close to the promised land of immigration reform and fair policies, and yet regularly sent back into the desert. The current administration’s enforcement policies trash the twenty-year development of rational and humane regulatory policies, creating instead various levels of individual and family destruction, which is difficult to bear. The recent abandonment of the DACA youth (children and youth who have had special regulatory status because they were brought here as children and have already demonstrated their actual and potential contribution to this society) is just one instance of this kind of senseless viciousness.

However, every aggressive step by this administration creates a stronger reaction. Recently, Matthew 25/Mateo 25 organized a press conference to support the Dreamers at Fuller Theological Seminary, led by the Latino Pastors’ networks of Southern California and attended by sixty Latino Christian leaders and evangelical Dreamers. Many of these people had never come out publicly before to stand for a justice issue. The sleeping giant of the immigrant evangelical churches is waking up and awakening other evangelical churches in the process. When all fourteen of the Hispanic Superintendents of Assemblies of God districts went to Dr. Wood, General Superintendent, asking for help in advocating for Pastor Carias, they obtained a positive response, which has historic significance.

Those who have labored in the vineyard of faith-rooted social justice for many years are encouraged by the growing breadth and depth of the movement—even if it is still in its early stages. And so in our advocacy and labors for the undocumented among us, including undocumented Californians, we resonate with the eloquent words of St. Paul in 2 Corinthians in the Christian New Testament: We are afflicted in every way, but not crushed; perplexed, but not driven to despair; persecuted, but not forsaken; struck down, but not destroyed; always carrying in the body the death of Jesus, so that the life of Jesus may also be made visible in our bodies.

Notes

[1] Titled the “Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005” (H.R. 4437), https://www.congress.gov/bill/109th-congress/house-bill/04437.

[2] https://www.doleta.gov/agworker/report/major.cfm.

[3] Teresa Watanabe, “Immigrants Gain the Pulpit,” Los Angeles Times, 1 March 2006, http://articles.latimes.com/2006/mar/01/local/me-mahony1.

[4] Southern California signatories included the president of Fuller Theological Seminary, the largest evangelical seminary west of the Rockies, and megachurch pastors Kenton Beshore of the 18,000 member Mariners Church in Irvine, Dave Gibbons of the 11,000 member New Song Church, Jerry Dirmann of The Rock in Anaheim, Tim Celek of the Crossing in Costa Mesa, Jim Tolle of Church on the Way in Los Angeles, and Greg Waybright of Pasadena’s Lake Avenue Community Church.

[5] http://www.matthew25pledge.com/.

[6] https://www.bravenewfilms.org/pastornoe.

[7] Jessica Rice, “Pastor Detained During Immigration Appointment Released Nearly 2 Months Later,” NBC4, 22 September 2017, https://www.nbclosangeles.com/news/local/Echo-Park-Pastor-Detained-Release-446835973.html.

Reverend Alexia Salvatierra is an ordained Lutheran Pastor, the co-author of Faith-Rooted Organizing: Mobilizing the Church in Service to the World, affiliate Professor at Fuller Theological Seminary and adjunct for five other Christian academic institutions as well as an international trainer and consultant. She has been organizing churches to engage in social justice for thirty-five years, and has been a co-founder of multiple immigration initiatives.

Copyright: © 2018 Alexia Salvatierra. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/.

Articles Poetry

This is Not a Lie

Boom California on December 18, 2017

Omar Pimienta

This is not a lie
        it’s not a lie about the lie       a lie that prolongs the lie

this is the truth   the only truth

Anastasio Hernández-Rojas  (San Luis Potosí 1968 – San Diego †2010)
stole a bottle of wine
      a bottle of wine
to celebrate mother’s day    his own         his children’s

prison and deportation    beatings and electricity
the only truth is death

it can be seen     it can be heard     the lie spreads
until it creates a discourse

but the truth is this: people die
and the truth most real is this:
        there are people who die in the hands of others
        who believe killing is part of their job

Anastasio Hernández-Rojas  (San Luis Potosí 1968 – San Diego †2010)
screamed so they would stop beating him
they beat him because he screamed
the people heard
the people heard     even though they didn’t want to

sound is more stubborn than image
the eye is more afraid than the ear
the truth just like fear is felt

few were able to translate the scream
others screamed to let him go
someone asked like he did      for help
others wanted to ignore this and crossed the border

this is not a lie     it’s not a lie about the lie
                                 this is the truth      the last truth.

Translated by by Jose Antonio Villarán.

Omar Pimienta is a Tijuana-based artist and writer. His work examines questions of identity, migration, citizenship, emergency poetics, landscape, and memory, and his work is currently on display as part of the unDocumenta exhibition at the Oceanside Museum of Art. He has published four books of poetry in México and Spain, and his newest book, The Album of Fences, with translations by Jose Antonio Villarán, is forthcoming with Cardboard House Press.

Copyright: © 2017 Omar Pimienta. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/

Articles

Every Wall is a Door

Boom California on November 14, 2017

Image provided by Jill M. Holslin.

Ronald Rael

My first encounter with the borderwall between the United States and Mexico came summer 2003. I had left New York after 9/11, and was invited by the artist Marcos Ramirez (“ERRE”) to visit his Tijuana studio. His directions were simple: “It’s the first building on the right just as you go through the revolting door.” Having grown up in the linguistic borderlands of a bilingual family, I found it equally plausible that Marcos was either making a shrewd commentary on the door that served as the pedestrian port of entry into Tijuana, or that he simply meant revolving.[1] The richness of the ambiguity stayed with me, and led me to the idea that architecture—in this case, a door in a wall—can be endowed with different meanings, either by accident or by design, and that architectural expression can be at the same time serious and humorous, and a powerful tool in polemicizing an architecture fraught with controversy.

That same summer I met the architect Teddy Cruz and was introduced to his vision for design that transects the border. Fascinated by his approach of thinking perpendicular to the border, I became interested in the line of the border itself and the diversity of the landscapes it parallels. This eventually led me on a journey exploring the borderlands of California, New Mexico, Arizona, and Texas, where my creative practice worked on several design projects in the Big Bend region—projects that consistently explored ideas of political, cultural, and material dualities in design and architecture. At the same time my studio was exploring how to make buildings using mud and concrete (which we saw as conceptually parallel to the contrasts of wealth and poverty, the United States and Mexico, contemporaneity and tradition), we also considered ways that these material systems—and in many ways, the cultural values and economies of scale embodied by these materials—could be interwoven: two distinct elements working in concert. Some of these ideas culminated in a project entitled Prada Marfa, on which we collaborated with artists Michael Elmgreen and Ingar Dragset. Constructed near the U.S.-Mexico border along a desolate highway in the Chihuahuan desert, a faux Prada store, built of mud and containing the 2004 line of Prada shoes and purses, both epitomizes and exaggerates the cultural and geopolitical dichotomies of the borderlands.

During the construction of Prada Marfa, we often witnessed helicopters descending on the horizon to pick up migrants walking through the desert. In fact, during our first visit to the building site for the project, several Border Patrol vehicles blocked our passage and agents surrounded us, demanding to know what exactly what we were doing there.[2] The heightened security in the borderlands, in preparation for the imminent expansion of wall construction, further fueled our desire to consider how design could be a vehicle for addressing the politics of border security.

As a finalist in the WPA 2.0 International Competition, my creative studio was able to explore the possibilities for political expression through architectural design. The competition, organized by the UCLA’s cityLAB, was inspired by the Depression-era Work Projects Administration (WPA) and the 2009 American Recovery and Reinvestment Act. This stimulus bill (the largest investment in public works in the United States since the 1950s) dedicated $150 billion to infrastructure, and designers were asked to envision a new legacy of publicly supported infrastructure—projects that would explore the value of infrastructure not only as an engineering endeavor but also as a robust design opportunity for strengthening communities and revitalizing cities.[3] Our entry, Borderwall as Infrastructure, sought to integrate water, renewable energy, and urban social infrastructure into the design for the borderwall and to challenge the very existence of the wall in its conception, function, and future. At that time, the design proposals suggested an intervention. Since the wall was well on its way to being constructed on a massive scale, the attempt was made to demand wall builders to be more concerned with the landscapes that were about to be divided by the wall, and we made that pitch to lawmakers in Washington D.C. with the proposals. The project was the catalyst for the book, Borderwall as Architecture: A Manifesto for the U.S.-Mexico Boundary; however, this book no longer seeks to intervene in the wall’s construction but instead seeks to consider its transformation—an expanded study on rethinking the existing wall by redesigning it into something that would exceed its sole purpose as a security infrastructure and ameliorate the wall’s negative impacts and, perhaps through intervention, make positive contributions to the lives and landscapes impacted by the borderlands.

The work compiled in Borderwall as Architecture continues the exploration through a collection of anecdotes, essays, models, drawings, stories, and speculations. In addition, short reactions are offered by border scholars that present intimate and diverse perspectives of the wall. Thus, it also protests against the wall—a protest that employs the tools of the discipline of architecture manifest as a series of designs that challenge the intrinsic architectural element of a wall charged by its political context. The wall is a spatial device that has been inserted into the landscape, but with complete disregard for the richness, diversity, and complexities of the areas in which it was built and proposed. This book advocates for a reconsideration of the existing wall, both through design proposals inspired by people living along the border who see the wall as something to respond to in positive ways and through proposals that are hyperboles of actual scenarios that have taken and continue to take place as a consequence of the wall.

Image provided by Jill M. Holslin.

These propositions presume the somewhat ridiculous reality of nearly 800 miles of border fortification while suggesting that within this enormously expensive and extremely low-tech piece of security infrastructure lie opportunities for the residents of this landscape to intellectually, physically, and culturally transcend the wall through their creativity and resilience. The work is meant to be at once illuminating, serious, and satirical in order to expose the absurdity and the irony of a wall meant to divide but that has brought people and landscapes together in remarkable ways.

The work is meant to be at once illuminating, serious, and satirical in order to expose the absurdity and the irony of a wall meant to divide but that has brought people and landscapes together in remarkable ways.

Since the publication of the book we find ourselves immersed in a kind of borderwall zeitgeist. The wall is increasingly in the public consciousness with the assistance of president Donald Trump. During his campaign he loudly proclaimed that he would build a wall, and audiences cheered as if finally someone had arrived who would build the wall, albeit ignorant of the 650 miles of already existing walls that divide private property, public lands, Native American heritage sites, wilderness areas, and cities. In this new era of calls for wall building, the wall is no longer simply a political symbol of security. It has emerged as a cultural object. Steven Colbert raised the question: “America no longer has the world’s tallest building, but could our planned Mexican borderwall be the world’s longest building?” The wall is the manifestation of our morals, our desires, and our artistic and social pursuits. It appears in beer commercials, such as the Tecate beer commercial that transformed the wall into a bar joining the two countries together; or a Hardee’s commercial, where scantily clad beach volleyball players play a bi-national game of “wall y ball”, as has been played for decades along the border to celebrate a bi-national heritage, but in this case to decide if the latest hamburger is more “Tex,” or more “Mex.”

Because of the questionable functionality of the wall, artists and designers see its shortcomings as doorways into questioning the wall, smuggling creativity into the borderlands demonstrating that creativity is an important component of resistance. For example, Ana Teresa Fernandez, a Mexican artist from Tampico, Mexico, participates in erasing the wall wielding a paintbrush. By selecting paint the color of the sky, Fernandez subverts the prison-like solidity of the rusty steel of the borderwall with a thick coat of blue paint so that the columns become one with the gaps between them, creating a visual illusion—and perhaps for some, a premonition—that the wall is no longer there. Residents of Tijuana have taken much pride in this installation, protecting it from others painting over it or removing it. In many ways, they consider it a kind of monument—albeit an invisible monument. The irony is that if the wall is ever dismantled, Fernandez’s invisible wall might remain.

Just two weeks ago the prototypes for Trump’s borderwall were unveiled near San Diego. One of Trump’s hopes for the wall, in addition to being “big” and “fat,” is that it would also be “beautiful.” One of the 30’ x 30’ prototypes, which cost $406,318 to construct, is painted sky blue, and I can’t help wonder if borderwall activism has come full circle, with ELTA North America, the construction company who built this wall, co-opting Ana Teresa’s invisible wall to meet the demands of the call for proposals which required the wall to be “aesthetically pleasing.” There are seven other prototypes constructed to demonstrate Trump’s ambitions for borderland security, most at a cost approaching half a million dollars.[4] While it is uncertain what is to become of these prototypes, what is certain is that, as Ralph Waldo Emerson once wrote, “every wall is a door,” and in this case, each of these walls are doorways to a continued interrogation by artists and designers whose creativity has the ability dismantle the desires for division.

Image courtesy of Ana Teresa Fernández and Gallery Wendi Norris.

Notes

[1] A revolving door in Spanish is puerta revolvente. Revolvente might easily be misinterpreted as a cognate for revolting, because the Spanish reflexive verb revolver also can refer to an upset (turning) stomach.

[2] An expanded text on Prada Marfa can be found in Dominique Molon, Ronald Rael, Michael Elmgreen, and Ingar Dragest, Prada Marfa (Berlin: Walther König, 2007).

[3] For more information about WPA 2.0, see About WPA 2.0, University of California, Los Angeles, http://wpa2.aud.ucla.edu/info/index.php?/about/about/.

[4] Jennifer Medina, Josh Haner, Josh Williams, and Quoctrung Bui, “Eight Ways to Build a Border Wall,” The New York Times, 8 November 2017, https://www.nytimes.com/interactive/2017/11/08/upshot/eight-ways-to-build-a-border-wall-prototypes-mexico.html.

Ronald Rael is Associate Professor in the departments of Architecture and Art Practice at the University of California, Berkeley. He is the author of Earth Architecture, a history of building with earth in the modern era that exemplifies new, creative uses of the oldest building material on the planet, and earlier this year, Borderwall as Architecture: A Manifesto for the U.S.-Mexico Boundary, together with Marcello Di Cintio, Norma Iglesias-Prieto, and Michael Dear. The Museum of Modern Art and the Cooper Hewitt Smithsonian Design Museum have recognized Rael’s work, and in 2014 his creative practice, Rael San Fratello, was named an Emerging Voice by the Architectural League of New York.

Copyright: © 2017 Ronald Rael. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/

Poetry

People

Boom California on November 8, 2017

Juan Felipe Herrera

listen to the voice of the people install the voice of the people paste the voice of the people paint the voice of the people on all of your public spaces day and night and notice what change is all about and notice what Democracy is all about Listen to the voice of the people install the voice of the people paste the voice of the people paint and Listen to the voice of the people install the voice of the people paste the voice of the people paint the voice of the people on all of your public spaces day and night and notice what change is all about and notice what Democracy is all about

—not tomorrow today

Pueblo

escucha la voz del pueblo aplica la voz del pueblo engoma la voz del pueblo, pinta la voz del pueblo de día y de noche en todos tus sitios públicos y date cuenta de que se trata la Democracia Escucha la voz del pueblo aplica la voz del pueblo engoma la voz del pueblo pinta y Escucha la voz del pueblo aplica la voz del pueblo engoma la voz del pueblo pinta la voz del pueblo en todos tus sitios públicos y date cuenta de que se trata el cambio y date cuenta de que se trata la Democracia

—no mañana hoy

Juan Felipe Herrera is the son of migrant farm workers and has held positions at Fresno State University and UC Riverside. He served both as Poet Laureate of the United States (2015-2017) and was appointed by Governor Jerry Brown in 2012 to serve as California’s Poet Laureate. He is the author of several collections including 187 Reasons Mexicanos Can’t Cross The Border (City Lights, 2007), Undocuments 1971-2007 (City Lights, 2007), Half the World in Light (University of Arizona Press, 2008), and Notes on the Assemblage (City Lights, 2015). “People” is a new poem (translated here into Spanish by Gabriella Ruelas and Omar Chavez) and will be published in the forthcoming collection, I am Talkin’ to You.

Copyright: © 2017 Juan Felipe Herrera. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/

Poetry

Touch the Earth (once again)

Boom California on November 6, 2017

Juan Felipe Herrera

This is what we do:

this is what the worker does:
this is what the cotton truck worker does:
this is what the tobacco leaf roller does:
this is what the washer-woman & the laundry worker does:
this is what the grape & artichoke worker does:
not to mention the cucumber workers—
not to mention the spinach & beet workers
not to mention the poultry woman workers
not to mention the packing house workers &
the winery workers & the lettuce & broccoli
& peach & apricot & squash & apple &
that almost-magical watermelon
& the speckled melon & the honey-dew the workers
this is what they do:

notice what they do:
notice: how they bend in the fires no one sees
notice: their ecstatic colors & their knotted shirts
notice: where they cash
their tiny & wrinkled checks & pay stubs:
stand in that small-town desert sundry store
then walk out they do & stall for a moment they do
underneath this colossal tree with its condor-wings
shedding solace for a second or two
notice:
how they touch the earth—for you

Tocar la Tierra (una vez más)

Esto es lo que hacemos:

esto es lo que hace el chofer del campo de algodón:
esto es lo que hace el que enrolla los puros con hojas de tabaco:
esto es lo que hace la mujer de la limpiadura y la de la lavandería:
esto es lo que hace el obrero de uvas y de alcachofa:
sin mencionar los que trabajan el pepino—
sin mencionar los que trabajan la espinaca y el betabel
sin mencionar las que trabajan con aves de corral
sin mencionar las empacadoras y
las que trabajan en viñedos y la lechuga y el brócoli
y el durazno y el chabacano y la calabaza y la manzana y
esa casi-mágica sandía
y el melón moteado y el melón verde los obreros
esto es lo que hacen:

atento a lo que hacen:
atento: en cómo se inclinan en los fuegos que nadie ve
atento: en sus colores vibrantes y sus camisas con nudos
atento: en el lugar donde cobran sus chequesitos y como tienen
el cheque y talón todo arrugado.
y como esperan en esa tiendita de abarrotes en el desierto
y de ahí salen y ahí hacen tiempo
para un descansito bajo ese arbolóte con sus alas de cóndor
dando consuelo por un segundo o dos
atento:
como tocan la tierra—para ti

Juan Felipe Herrera is the son of migrant farm workers and has held positions at Fresno State University and UC Riverside. He served both as Poet Laureate of the United States (2015-2017) and was appointed by Governor Jerry Brown in 2012 to serve as California’s Poet Laureate. He is the author of several collections including 187 Reasons Mexicanos Can’t Cross The Border (City Lights, 2007), Undocuments 1971-2007 (City Lights, 2007), Half the World in Light (University of Arizona Press, 2008), and Notes on the Assemblage (City Lights, 2015). “Touch the Earth (once again)” is a new poem, translated here into Spanish by Omar Chavez, and will be published in the forthcoming collection, I am Talkin’ to You.

Articles

Regarding the Documents

Boom California on October 25, 2017

Jason S. Sexton

We were all undocumented once, if you like to think of things this way. With no paper, none to be possessed, owned, or laid claim to so as to build upon, capitalist-style. Of course, this erstwhile situation assumes that agency (the stuff giving evidence that one has a will), cognition, and personal resolve have something to do with the matter of being documented or not; yet they don’t really, or they didn’t then, once upon a time.

The powerful forces operating on us were bigger than us, than our parents, than any state government. Our once undocumented state, however, once suggested something about the integrity of our humanity and life; like it is now, our lives were contingent, derivative by nature—life from life, and sometimes from love, even though we had no papers. But in today’s debate, life, especially the barest kind,[1] doesn’t factor into the conversation, nor does love. The humanity doesn’t matter, nor do the stories, nor the lives. Just proper documents.

What is a document? According to the Oxford English Dictionary, the English term comes from a combination of Old French document, denoting “lesson, written evidence” from the 12th–13th c., and the Latin noun documentum, meaning “lesson, proof, instance, specimen,” or else a written instrument, a charter, or an official paper in medieval Latin. The Latin verb docēre, meaning “to teach,” suggests something of a didactic function inherent in the term, whatever relationship the term might have to a similar-sounding dokimazō[2] from the ancient Greek, or perhaps even dikaioō, suggesting a legal cause of doing or showing justice, related to a favorable verdict or vindication.[3]

In the English usage, which has come down largely into the U.S. consciousness today, the term ‘document’ signifies teaching, instruction, warning, or else, “An instruction, a piece of instruction, a lesson; an admonition, a warning.” These definitions give way to a use with no less commanding function, but with an increasingly penal potential: “That which serves to show, point out, or prove something; evidence, proof,” often taking the subordinate clause—a document of birth, a document of citizenship, of acceptance, etc. without which one simply cannot show, point out, or otherwise prove what might be needed to support his/her status for personal well-being.

The noun is also used for “Something written, inscribed, etc., which furnishes evidence or information upon any subject, as a manuscript, title-deed, tomb-stone, coin, picture, etc., and specifically, “The bill of lading and policy of insurance handed over as collateral security for a foreign bill of exchange.”[4] The definition in English increasingly points out transaction and property, and thus with regard to persons: propertied people, or people as property, belonging somewhat and in some way to whatever entity issued a person their essential documents.

Again, once upon a time it was not so—there were no documents of this kind to be spoken of in the ancient world. The rhythms and ordered systems of reality were different. The inception of these things, like writing in the history of civilization, came in sometime around 3,200 B.C. with the Sumerian society, which had increased to such size that a new methods of accounting appeared to better dictate relationships in the ancient world, organizing what sociologists today would call class or estate. Rulers in the early states were seen as ‘parents’ of their subjects, and this practice of writing or documenting things “emerged first as a way of accounting and power.”[5] Knowledge of things could be stored more accurately than with earlier forms of oral transmission, in turn giving way to writing systems. The first of these to emerge in Mesoamerica (c. 600 B.C.) came from Southern Mexico.[6] Bureaucracy mounted through the process, especially as the divide of social classes increased with the scribal and ruling elite at the top and everyone else at the bottom—i.e., those who owed things.[7] Yet before this, once upon a time, there was no state agency’s orderly account of things denoting with some finality what was owed or given, nor a written debt to someone or something. The earliest writing arose with this, though, on documents that established code or law.

If the above notion were all there were, then everyone is both documented and undocumented in various ways. We owe things, and are all owed things in this complicated bureaucratic system of states and state-governed bodies. But the state is not only comprised of people collectively as a body politic; the systems are also created by the people and, perhaps in our wildest dreams, even somehow for the people. Moreover, in a fundamental sense, the state simply is people and a way of people existing together.

But the state is not only comprised of people collectively as a body politic; the systems are also created by the people and, perhaps in our wildest dreams, even somehow for the people.

On a basic level, then, there are always things that we don’t belong to: particular clubs, or institutions, or organizations, or parties; sometimes this is designated by individual agency and choice, other times these things are chosen for individuals who have little to no choice in the matter. Everyone doesn’t have every particular document, and are thus left excluded from certain things, generally reflecting class and segregation, as well as religion and race.[8] Documents are an important way of denoting this, which can also be imprisoning, excluding, or else including in different categories.

But when do humans become ‘illegal’ or ‘outlawed’? It depends.

These things really are a moving target that we’re trying to highlight with the intellectual underpinnings of what we’re trying to discuss in addressing the issue of “Undocumented California,” and the manifold arbitrary inconsistencies that our government and culture use to legitimate dominant ideologies and institutions.

The Library of Congress has continued to use the term “illegal aliens” and “alien detention centers.” The term “illegal aliens” is also used by U.S. Immigration and Customs Enforcement, especially in the recent statement from acting director Tom Homan in response to California’s SB54, declaring California a sanctuary state.[9] But to declare individuals here illegally is not a matter that California’s governing authorities are quick to choose. Labeling and name-calling is something we’d rather leave to what our parents gave us. Immigration of any kind is always a great risk, taken with great hope, and great dreams—dreams that Californians value deeply as part of their identity. Illegal, then, is not a term we will use for Californians who choose to make their lives here.[10]

Who would we be, should we create a kind of second-class citizen for a human being who is present in all astonishing wonder and humanness? Who would we be to create the underclass, and be happy with it, reinforcing the notion with media that underpins our identity (legal?) even if it disregards that of others?

The Associated Press recently gave a glimpse of a possible change in tone in a piece they published referring to, “undocumented citizens,”[11] a designation fitting enough for those committed to contributing to our shared society and common good. The term used, however, was rescinded the very next day.[12] The matter seemed to have not been entirely different from a hyper-sensitivity that the previous executive administration had together with Congress for very carefully enacting things like DACA in 2012, the cessation of which was announced by the Trump administration 5 October 2017. Both moves, however, in two different ways (from Trump and Obama administrations) showcase state power over residential subjects. Yet amid all changes that keep things consistently governmentally-controlled, with provisions doled out arbitrarily from year to year, this does not mean that cultural revolution and change cannot happen to renew our outlook.

None of this minimizes the potential existential crisis manifested in fear, destruction, loss, and seizure. One without proper documentation at any point today may be tossed swiftly to the margins, disrupting scores of lives. This is all part of the design and part of the larger story, none of which can be understood apart from the law, which in turn cannot be understood apart from worldview (or, suggestively, operative theology).[13]

America the beautiful, the chosen, the exceptional—this vision fuels what we do with the different subjects of the U.S., most of whom will be punished at some point and in one way or another.[14] The U.S. issues papers throughout this process to those con papeles as opposed to those sin papeles.[15] This, too, is about power. The U.S. is not the only democracy that does this. But in this case, continuing capitalist style, the world’s elite can come anytime, especially to the coveted California: pay cash for a house, immigrate anytime. Their money will secure the documents needed.

But for those embodying any sense of the Statue of Liberty’s unfulfilled calling: “Give me your tired, your poor, Your huddled masses yearning to breathe free”[16]—these aren’t really in with making America great again.[17] But if they aren’t, then nothing is. And even yet, if America is that place of “an established culture painfully adapting itself to a new environment, and being constantly checked, confused, challenged, and overcome by new immigrations,” then in California, America’s America, to the Statue of Liberty’s call our motto is not merely “yes” and “amen”; but is always “only more so.”[18]

We cannot pretend that this in extremis version of America that California has embodied hasn’t involved the penal documentation of the ‘other,’ which also has always been part of our narrative.[19] The carceral undocumented are trapped in county systems, or banished to the penitentiary, or vanished into Adelanto, our private immigration detention center. For the carceral undocumented, punishment inflicted suggests the need of discipline, whatever the half-hearted determination might be from the official verdict of whether or not they truly belong. In Spanish, the rendering of Michel Foucault’s Serveiller et punir is given as not “discipline” and “punishment” as his chosen term for the English translation, but rather as Vigilar (“keep an eye on”) y castigar.

When surveilled or punished, it’s not as though forms of documentation are not involved. We document everything. While great political figures receive exile, especially the white collared ones, the less significant players are swiftly discarded. In the vigilant, punitive surveillance of the carceral state, humans were written-out with documents of exclusion, but not without punishment for having the wrong kind of documents or else none at all, relegating them for banishment. To where, it didn’t much matter, so much of which is arbitrary, affirming again ultimate state power and control, and stability for the state and its shareholders, which can be both symbolically and psychologically reinforced with a stronger, ever increasing, larger, higher, bigger border wall.[20]

That’s not how the truest Californians roll, though. We chart a different course, collecting and affirming the world, open to far more possibilities than the world has yet seen.

How do we reenvision our California selves then, both with the undocumented, and also simultaneously as the undocumented? And what is ‘undocumented’ in the contemporary moment? This is difficult to discern. We know California’s response has not been shy to these questions, but neither are we univocal with a position. Largely in opposition to the Washington administration, our Legislature, institutional, and civic leaders have uttered many words to the effect of protection and affirmation. Have they? Will they? These things in the contemporary moment should be understood as noble, ambitious, but still aspirational, part of a dream. But dreams are worth living into, and developing, especially when looking honestly and discovering the troubling reality that the world is indeed quite troubled. For those with some modest means, will, and desire to do something about it, dreaming may be essential for survival.

The term ‘undocumented’ is quite possibly a cheap concession that, while humbly admitting “need” (need for proper documents?), also concedes: “We don’t have documents needed to remain, to abide, to be/exist.” But this is a declaration humans must not be able to make of humans. To unwrite a person, to erase, negate, subtract, to deny life—this ought not be done. It happens, and may be something, but is certainly not of California—a state of mind as much as anything—where the dreamers remain, belong, until the end of time.

It happens, and may be something, but is certainly not of California—a state of mind as much as anything—where the dreamers remain, belong, until the end of time.

Our overall position only makes sense in light of what’s possible, or at least plausible, and what we have done before to build ourselves up amid great challenges. There’s nothing new under the sun. And dreaming does not mean aspiring to a utopian society. California is surely not that, nor will it ever be. [Perhaps in fifty years Mexico may beat California to this.] But California can be a place of solidarity, mutuality, respect, dignity, and healing. We can work together, believe in each other, and re-recognize our shared humanity of wealthy and poor, and the poor in spirit—blessed as they are. And are those who mourn, and the meek, and those who hunger and thirst to be righteous (to have papers), who are merciful, pure in heart, peacemakers, and persecuted.

Californians—we hope, we believe, we assert, we confront, and we fight—but we don’t fear, even if disinherited. We’re not going to fall for rhetoric that divides families, disrupts classrooms, invades workspaces. And we can take the nation’s undocumented, the poor, the disinherited. Deport them to California, Joe Mathews argues.[21] And more so.

Californians, we ourselves often forget our stories, and those of others around us—we know that more of the point is found looking to the future. Amnesia is often tacitly prescribed upon arrival. But we have memory, identity, presence, and know what it means to be human, documented or not. We know, or at least we’re trying to find time to breathe and reorient ourselves to figure out what it means in this moment to do justly, to love mercy, and walk humbly.

Perhaps the undocumented are the greatest examples of humility, and the very best of what the American (and Californian) disposition could dream to be. Maybe perceived as hiding in the shadows, laying low in order to not be found out, deported, sometimes self-deported,[22] or else going underground, under the radar, opting not to remain in an official governmental capacity. Yet they are also activists—they are mothers, fathers, children—they are like us, but of course are second or perhaps third or fourth class citizens. But whenever did one’s official status constitute what’s real? What’s prescribed as ‘official’ does not constitute how life, culture, and love is ever made—the true, enriching stuff that makes life worth living. That stuff is hard to document in any proper sense, however we might try; but that’s what matters most, and is most needed right now.

Notes

With gratitude to Miroslava Chávez-García, Susan Straight, and Abel Fernando Vallejo Galindo, an undocumented Californian, for comments on an earlier draft of this essay.

[1] Luke Bretherton refers to this as “life excluded from participation in and the protection of the rule of law,” Resurrecting Democracy: Faith, Citizenship, and the Politics of a Common Life (Cambridge: Cambridge University Press, 2015), 220. See also Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 2005).

[2] Meaning, “to make a critical examination of something to determine genuineness, put to the test, examine”; or “to draw a conclusion about worth on the basis of testing, prove, approve.” William Arndt, Frederick W. Danker, et al., A Greek-English Lexicon of the New Testament and Other Early Christian Literature (Chicago: University of Chicago Press, 2000), 255.

[3] Ibid., 249.

[4] Quotations are taken from “document, n,” OED Online, June 2017, Oxford University Press, http://www.oed.com.lib-proxy.fullerton.edu/view/Entry/56328?result=1&rskey=EkUMvF& (accessed 5 October 2017).

[5] David Christian, Maps of Time: An Introduction to Big History (Berkeley: University of California Press, 2011), 275.

[6] Ibid., 277.

[7] Robert Tignor, Jeremy Adelman, Peter Brown, et al., Worlds Together, Worlds Apart, Vol. 1: Beginnings through the Fifteenth Century (New York: W. W. Norton & Co., 2014), 55.

[8] Kevin Starr identified this as a perpetual tension in California life, historically and into the present, noting particular operative racial, ethnic, and religious covenants of exclusion, as well as the long-seated enmities that various immigrant groups to California held against each other, highlighting especially the American dilemma of race as equally a California problem, although perhaps even more so. Kevin Starr, California: A History (New York: Random House, 2005), 308.

[9] For the deeply irresponsible “Statement from ICE Acting Director Tom Homan on California Sanctuary Law,” see https://content.govdelivery.com/accounts/USDHSICE/bulletins/1bbc85f.

[10] Note that Senate Bill 54 does not use the terms ‘illegal’ or ‘alien’ in its entire text: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB54.

[11] Ryan Saavedra, “Associated Press Now Refers To Illegal Aliens As ‘Undocumented Citizens’,” The Daily Wire, 7 September 2017, http://www.dailywire.com/news/20784/associated-press-now-refers-illegal-aliens-ryan-saavedra.

[12] “Associated Press Now Refers To Illegal Aliens As ‘Undocumented Citizens’,” 8 September 2017, https://www.apnews.com/14392ccadac64851a2c23bcbaeea4c39/Mayor:-Chicago-students-welcome-as-Trump-ending-DACA-program.

[13] See Hiroshi Motomura, Immigration Outside the Law (New York: Oxford University Press, 2014), 4-5 on complexity of terms and significance of understanding these things in relation to law. See also pp. 19-55.

[14] See Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017).

[15] Jen Hofer, “Under the Radar and Off the Charts: Undocumentation in Los Angeles,” in Patricia Wakida, ed., Latitudes: An Angeleno’s Atlas (Berkeley: Heyday Books), 161.

[16] See https://www.nps.gov/stli/learn/historyculture/colossus.htm.

[17] See dust-up with erstwhile California resident, Steven Miller, in Liz Stark, “White House policy adviser downplays Statue of Liberty’s famous poem,” CNN, 3 August 2017, http://www.cnn.com/2017/08/02/politics/emma-lazarus-poem-statue-of-liberty/index.html.

[18] Wallace Stegner, “California: The Experimental Story,” Saturday Review, 23 September 1967, 28.

[19] Some native indigenous Californians were documented somewhat with names for tribes that became common, or with new names for captured individuals or those baptized or brought into missions. But early accounts of the turbulent and chaotic years of genocidal violence against Californian Indians left poor documentation not only as to name but also to tribal identity. See Benjamin Madley, An American Genocide: The United States and the California Indian Catastrophe, 1846-1873 (Newhaven, CT: Yale University Press, 2006), 15. And for details listing the numbers of how many were murdered during this time period, see Appendices 1-6, pp. 363-550.

[20] See reasons why unauthorized migration benefits the U.S. government, Motomura, Immigration Outside the Law, 52-55.

[21] Joe Mathews, “Legal residency for California’s undocumented,” Zócalo’s Connecting California, 7 September 2017, http://www.kcrw.com/news-culture/shows/zocalos-connecting-california/legal-residency-for-californias-undocumented.

[22] Brittny Mejia, “Leaving America: With shaky job prospects and Trump promising crackdowns, immigrants return to Mexico with U.S.-born children,” Los Angeles Times, 19 September 2017, http://www.latimes.com/local/la-me-ln-dual-citizenship-20170808-htmlstory.html.

Jason S. Sexton is visiting fellow at UC Berkeley’s Center for the Study of Religion, and visiting scholar at UC Berkeley’s Center for the Study of Law and Society. He teaches at California State University, Fullerton, where he serves as Pollak Library Faculty Fellow. He is the Editor of Boom California. For more information, please visit www.jasonssexton.com.

Copyright: © 2017 Jason S. Sexton. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/

Articles

Undocumented Californians and the Future of the Golden State

Boom California on October 23, 2017

Manuel Pastor

It’s probably no exaggeration to say that the U.S. has just been through its Prop 187 moment.

Like today, the turmoil California experienced in 1994 was triggered by broad demographic change, with a special target placed on the backs of “illegal immigrants.” It was accompanied by a broad sense of economic anxiety—nearly half of the nation’s net job losses in the early 1990s were experienced in the Golden State as cutbacks in defense spending shredded our manufacturing sector. The simmering social and economic unease was exacerbated by a politician running behind in the polls and looking for a way to make his mark.[1]

While it may all sound familiar, the point is not to rerun the tape and point to historical precedents. More useful is asking where California is nearly twenty-five years later, and how it got there. After all, the state that once sought to deny unauthorized immigrants access to a broad range of services—including non-emergency health care and even education for children—has figured out how to extend drivers’ licenses to those without legal status and provide state-financed health care to all undocumented youth.

The story of the state’s changing attitudes and policies has a lot to do with the vibrant immigrant rights’ advocacy that changed the state’s political calculus—reflected in part in the accession of Kevin De León (an organizer who cut his teeth organizing against Prop 187) to the leadership of the state Senate. Having written about that advocacy elsewhere, my focus here is on some structural factors: the passage of time, the changing nature of the undocumented community, and the increasing “normality” of unauthorized immigrants in multiple aspects of California life.[2]

Indeed, part of what has happened in California is the sheer ubiquity of a population once considered a bit exotic and different. While numbers are hard to come by—people don’t generally offer up their status, particularly with a presidential administration hell-bent on deportation—most estimates put the number of those without legal status in California at somewhere under 3 million. That’s about a fourth of all the undocumented individuals in the nation and about seven percent of the total state population.

It may be easy to think of that sizeable population in a way more in tune to the past—that is, when the immigration flows from Mexico and Central American were surging in the 1980s and 1990s. In that era, the vast majority of the undocumented were border-crossers fleeing economic crises and civil wars. The largest share were single males who soon showed up as workers in the fields, operatives working in factories, and day laborers posted in front of the local hardware store.

But a lot has happened since a massive uptick in unauthorized migration prompted the furor that resulted in Proposition 187.

Most important is that the era of mass migration from Mexico is probably over. The reason is partly demographic: fertility rates have fallen dramatically in what has traditionally been the largest sending country to the U.S., and this is now echoing generationally in a way that has reduced a key factor pushing people northward. Meanwhile, the disruptions caused by Mexico’s embrace of free trade in the 1990s have mostly worked their way through the system and the nation’s economic growth. While not stellar by, say, Chinese standards, this has been sufficient to cause would-be migrants to rethink the opportunity structure they face.

While advocates are less likely to acknowledge this, increased border enforcement and more effective workplace verification in recent years has also played a role: it’s simply more difficult and expensive to cross and increasingly harder to secure employment once here. And while Central American migration remains a key factor—now driven partly by the gang violence that immigrants brought back from their stays in urban California—net migration from Mexico is negative and has been for several years.[3]

As a result, several characteristics of the population have shifted. First, the undocumented population in the U.S. has declined since its peak in 2007 and has been stable since about 2009. Second, it is now likely that the bulk of the new undocumented are people who overstayed visas rather than scrambled across the Rio Grande. Third, and perhaps most significant: while about sixty percent of undocumented immigrants had been in the country for less than ten years in the mid-2000s, almost two-thirds now have lived in the U.S. for more than a decade.[4]

As usual, these national trends are reflected strongly in the Golden State. After all, California has the nation’s most settled immigrant population in general—and it also has the highest share of state residents without legal status. Given high rates of labor force participation (and the fact that the undocumented are overwhelmingly adults), that share swells to about nine percent of the labor force. These workers are deeply embedded in key parts of the labor market, comprising a vital workforce for agriculture, retail, and low-skill service industries.

Another matter of great significance is the fact of mixed-status families: fully eight percent of all Californians live with a family member that is not documented, the highest figure for the nation. Even more dramatic: roughly seventeen to eighteen percent of children in the state have at least one undocumented parent. In Los Angeles County, adding up the undocumented and their immediate family members amounts to about a fifth of the total county population.

Put it all together—length of time in the country, key roles in the economy, the share of the state’s children, and the percent of the population touched directly and indirectly by the precarious nature of immigration status—and a simple conclusion is inescapable: these are not illegal immigrants but undocumented Californians.

Undocumented Californians are our neighbors, relatives, friends, classmates, and co-workers. They help to grow our food and take care of our elders and our kids—and they are also our class valedictorians and future professionals. And because they are increasingly unlikely to go anywhere, the state’s future depends on their progress and the progress of their children.

As a result, the state’s central task is now immigrant integration and that includes those who lack legal status. There are many reasons why this is true, including the size and stability of the population, but one of them is political: while comprehensive immigration reform seems a long way off in the era of Trump, reform with a path to legalization is all but inevitable.

After all, demography continues to march forward, something that will be recorded by the 2020 Census and reflected in the elections of that year as well. It is those 2020 elections—which will be a presidential contest in which minorities, immigrants, and the young are more likely to participate—that will, along with the Census, determine the shape of electoral boundaries for the decade to come.

So just like the Tea Party uprising of 2010 helped to shift the nation to the right (partly because of the gerrymandering it made possible), 2020 could set the nation in a different direction. And a Congress elected in those circumstances is much more likely to finally accept the basic principles of the 2013 Senate bill: tighter enforcement, higher future flows, and a path to citizenship.

Given that, the choice for California is clear: preparing our population for that future or squandering the opportunity to be ready. The state has been taking the right steps in terms of key policies, like extending in-state tuition to undocumented students, granting the right to drivers’ licenses, and generally refusing to cooperate with Immigration and Customs Enforcement (ICE). Political scientists Karthik Ramakrishnan and Allan Colbern have described this as a sort of “California package” that provided de facto state citizenship.[5]

The state has been taking the right steps in terms of key policies, like extending in-state tuition to undocumented students, granting the right to drivers’ licenses, and generally refusing to cooperate with Immigration and Customs Enforcement (ICE).

It’s a start, but investing in the future—particularly with an eye toward future legalization—will require stepping up California’s game. Determining new ways to cultivate the habits of citizenship—perhaps by allowing non-citizen to vote in local school elections—could be important. Expanding job opportunities to stabilize parental income—perhaps by dramatically increasing English classes and providing community-based skill building that would be open to all—could be productive. Creating new avenues to earn a living without being formal employees—such as worker individual entrepreneurs and even worker collectives organized as limited liability corporations—is another part of a more innovative approach.[6]

A defensive reaction is also in order. Because of the ways in which undocumented Californians are deeply rooted in the state’s social and economic fabric, any deportation or threatened revocation of DACA status is far more likely than in years past to disrupt a family, damage a business, or scar a community. The good news: California’s attorney general, Xavier Becerra, seems eager to go after federal overreach, suing to prevent the administration from denying funds to so-called “sanctuary cities.”[7] The better news: the State Assembly and Senate passed a bill called the “California Values Act” that has further codified the state’s decision to limit cooperation with Immigrations and Customs Enforcement.[8]

It is incumbent on California to get this right. Just as we presaged the nation with our collective melt-down about immigrants, we can hopefully show the good that happens when we combine head and heart, joining fact-based reason about the new realities of immigration with a compassionate attitude to our fellow Californians. If the demographers are right—in this case, about immigrants fanning out from the traditional gateways—what the state offers up in the way of reaction, resistance, and reform will set the tone for a country that will soon need a new and more welcoming approach.

Notes

^[1] Manuel Pastor, State of Resistance: What California’s Dizzying Descent and Remarkable Resurgence Mean for America’s Future (New York: The New Press, 2018).

^[2] Manuel Pastor, “How Immigrant Activists Changed L.A.,” Dissent, 2015, https://www.dissentmagazine.org/article/how-immigrant-activists-changed-los-angeles.

^[3] Ana Gonzalez-Barrera, “More Mexicans Leaving Than Coming to the U.S.,” Pew Research Center’s Hispanic Trends Project, 19 November 2015, http://www.pewhispanic.org/2015/11/19/more-mexicans-leaving-than-coming-to-the-u-s/.

^[4] Jens Manuel Krogstad, Jeffrey S. Passel, and D’Vera Cohn, “5 Facts about Illegal Immigration in the U.S.,” Pew Research Center, 27 April 2017, http://www.pewresearch.org/fact-tank/2017/04/27/5-facts-about-illegal-immigration-in-the-u-s/.

^[5] S. Karthick Ramakrishnan and Allan Colbern, “The California Package: Immigrant Integration and the Evolving Nature of State Citizenship,” Policy Matters 6 (2015): 1–19.

^[6] Cindy Carcamo, “Immigrants Lacking Papers Work Legally—as Their Own Bosses,” Los Angeles Times, 14 September 2013, http://articles.latimes.com/2013/sep/14/nation/la-na-ff-immigration-business-20130915; Kaelyn Forde, “Undocumented NYC Domestic Workers Clean up with Collective,” 12 May 2014, http://america.aljazeera.com/articles/2014/5/12/undocumented-workerscollectivenyc.html.

^[7] Josh Gerstein, “California Files Suit over Trump Sanctuary City Policy,” POLITICO, 15 August 2017, http://politi.co/2wJsmnD.

^[8] Jazmine Ulloa, “California Lawmakers Approve Landmark ‘Sanctuary State’ Bill to Expand Protections for Immigrants,” Los Angeles Times, 16 September 2017, http://www.latimes.com/politics/la-pol-ca-california-sanctuary-state-bill-20170916-story.html.

Manuel Pastor is Professor of Sociology and American Studies & Ethnicity at the University of Southern California (USC) where he directs the Program for Environmental and Regional Equity (PERE) and the Center for the Study of Immigrant Integration (CSII). He is the Turpanjian Chair in Civil Society and Social Change, and holds an economics Ph.D. from the University of Massachusetts, Amherst. He writes and speaks widely on issues including demographic change, economic inequality, and community empowerment. Pastor’s current research culminates in the release of his forthcoming book, State of Resistance: What California’s Dizzying Descent and Remarkable Resurgence Means for America’s Future, April 2018.

Copyright: © 2017 Manuel Pastor. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/

Articles

Martin Luther King Jr.’s L.A. Bomb Scare

Boom California on October 16, 2017

Patrick Parr

This is not the life I expected to lead. But gradually you take some responsibility, then a little more, until finally you are not in control anymore. You have to give yourself entirely. Then once you make up your mind that you are giving yourself, then you are prepared to do anything that serves the Cause and the Movement. I have reached that point. I have no option anymore about what I will do. I have given myself fully.

– Dr. Martin Luther King Jr.[1]

The bomb scare that night was the least of his worries. As far as death threats were concerned, Dr. King had experienced his fair share of close calls. His home had been bombed—he’d been stabbed with a letter opener, hit with rocks, eggs, fists, and arrested over fifteen times. And, yes, there had been plenty of bomb scares similar to what occurred inside the University of Southern California’s Bovard Auditorium on the night of 16 October 1967.

Dr. King visited the University of Southern California campus to deliver a speech titled “The Negro in America.” He flew United Airlines and arrived at the Los Angeles International Airport at 6:35 p.m., appearing calm yet tired. At this stage of his life, King had become more controversial than ever to the American public. He’d publicly denounced the Vietnam War in a fiery April 1967 speech in New York, angering not only pro-war advocates but also his own supporters who believed he was moving himself away from his core cause of civil rights. He’d gained weight over the years, and grew numb to the fear of losing his life.[2]

Dr. King’s Los Angeles visit was preceded by a similar speech delivered on Sacramento State College’s football field, speaking out on Vietnam to an audience of several thousand: “Our nation is trying to fight two wars at the same time, the war in Vietnam and the war on poverty, and is losing both.”[3] As soon as he finished, King headed for the local airport. According to the late journalist David Halberstam, this was Dr. King’s routine: “Most of King’s life is spent going to airports, and it is the only time to talk to him.”[4]

In Los Angeles, he was greeted by a USC committee and guided to a car. As had become his standard outfit, King wore a black suit, rumpled from the flight, with a white collared shirt and gray tie. Some, such as then Daily Trojan editor Hal Lancaster, were able to see King up close, and what affected the reporter the most was the fatigue in the reverend’s eyes:. “Any man who averages three hotel rooms a week is bound to be tired.”[5]

After dropping off his luggage at a Hyatt, Dr. King got back into the car and headed for the USC campus. He’d started to wake up and looked out the window of the car, the city of Los Angeles passing by. Dr. King spoke to those in the car about how California and the Catholic Church had “gone backwards” in helping to enact a fair housing plan. One example of ‘fairness,’ would be an attempt to eliminate discrimination while a potential tenant’s application is being processed. As King recalled, California at one time “had an open housing act here and went back and abolished it.” To the reverend, it was simply another case of the church not taking enough social responsibility in the communities where they still held sway. “It has been a great tragedy of the church that this has been considered secondary. The church must be concerned with the total man, his physical as well as spiritual being.”[6]

At 7:45 p.m., Dr. King entered a room inside USC’s Bovard Auditorium. He wanted some time to himself before he went out. As he collected his thoughts, around eighteen hundred people filled the auditorium, eager to see the reverend in the flesh.

He spoke with an urgent vitality—the kind that can perhaps come only after hearing a knock on death’s door—and the crowd was sent to a higher plane of thought.

Just after eight, Dr. King, after an introduction, walked up to the podium. At 5’7” he was not an imposing presence on stage, but this setting had become his second home. Unassuming and mellow off stage, King had a knack for bringing himself to life as he spoke to a crowd. On this night, he started slowly, deliberately, his slow southern drawl allowing everyone to follow his every word. The longer he spoke, the quicker his words came—emotions bubbling to the surface….

But around 8:30 p.m. as Dr. King retold the history and plight of the black American, the L.A. Fire Department received an anonymous phone call from someone who said there was a bomb inside the Bovard Auditorium, and that it would detonate “in fifteen minutes.” With the fear planted, the crowd evacuated Bovard, and Dr. King was taken by campus police to a conference room. Just before leaving the stage, Dr. King wanted to reassure his listeners to “please return because there are some very important things I still have to say.”[7]

They returned, and when Dr. King once again stepped behind the podium, he’d grown somewhat. He spoke with an urgent vitality—the kind that can perhaps come only after hearing a knock on death’s door—and the crowd was sent to a higher plane of thought. Dr. King told the now active audience (many of them students) to deny the ‘myths’ halting the progress of African-Americans.

One of the myths involved time. Just give the cause enough time, and everything will work itself out. But King had no interest in being patient. To him, “time is neutral, and can be used either constructively or destructively.”[8]

Another myth rested in the notion that legislation was unnecessary, and all that was needed was for the general public to have a change of heart.

With his voice booming off the auditorium walls, Dr. King disagreed:

I’m a Baptist preacher, and I’m in the heart-changing business… but while morality cannot be legislated, behavior can be regulated, and while the law can’t make a man love me, it can restrain him from lynching me.[9]

The biggest round of applause came from his comments on the war in Vietnam. Dr. King surely knew there were hundreds of students anxious of being drafted, and furious over the fact that American soldiers, some family and friends, were being killed every day. Dr. King demanded that America “stand up and say to the world we made a mistake in Vietnam… justice is indivisible, but injustice anywhere is a threat to justice everywhere.”[10]

The bomb scare had sadly caused Dr. King to leave without what had been a pre-planned question and answer session. He had another plane to catch. A rally in Houston was next, along with two smoke bombs. Immediately after that, King, his brother A.D., Wyatt Walker, and Ralph Abernathy were to report directly to a Birmingham, Alabama prison, obeying a Supreme Court order regarding a long-appealed ‘contempt’ offense that occurred in 1963. Such had been his life ever since giving himself “entirely” to the movement. On the college campuses in Sacramento and Los Angeles, he’d found support among the younger anti-war generation, but these events were few and far between. The appeal of ‘black power’ had taken hold, and King’s message of nonviolence had started to lose its authority over his own supporters.

Fifty years later, the general American public now annually remembers the triumphs of Martin Luther King Jr.—the 1955-1956 Montgomery bus boycott, the 1963 March on Washington, the 1964 Nobel Peace Prize—and we have chosen to idolize him with memorials and statues, and given dozens of schools and highways his name. But these honors are empty if we choose to ignore the sacrifice and message of a man who, according to Christine Farris, King’s sister, was an “ordinary and average man.” Perhaps sociologist Charles Vert Willie, one of King’s friends and college classmates, said it best: “By idolizing those whom we honor, we fail to realize that we could go and do likewise.”[11]

Photograph of Dr. Martin Luther King, Jr. inside Bovard Auditorium around 8 p.m., 16 October 1967. Courtesy of University of Southern California, on behalf of the USC Libraries Special Collections.

Notes

Header image of Dr. Martin Luther King, Jr. inside Bovard Auditorium around 8 p.m., 16 October 1967. Courtesy of University of Southern California, on behalf of the USC Libraries Special Collections.

[1] Coretta Scott King, My Life with Martin Luther King Jr. (New York: Holt, Rinehart and Winston, 1969), 163.

[2] Stan Metzler, The Daily Trojan, 16 October 1967.

[3] Long Beach Independent, 17 October 1967, A2 and San Bernardino County Sun AP Report, 17 October 1967, where it appears King delivered similar speeches in Sacramento and Los Angeles on that same day.

[4] David Halberstam, “The Second Coming of Martin Luther King,” Harper’s Magazine, August 1967.

[5] Hal Lancaster, “The Calm Martin Luther King,” The Daily Trojan, 17 October 1967.

[6] Ibid.

[7] Fred Swegles, “Bomb scare considered normal event for King,” The Daily Trojan, 18 October 1967; Melinda Tonks, “Forum continues to draw notable figures,” The Daily Trojan, 18 October 1967.

[8] Stan Metzler, “King’s call for civil action marred by bomb scare,” The Daily Trojan, 17 October 1967.

[9] Ibid.

[10] Ibid.

[11] David J. Garrow, Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference (New York: HarperCollins, 1986), 579.

Patrick Parr has had his work appear in History Today, The Humanist and The Japan Times, among other publications. His forthcoming book is titled, The Seminarian: Martin Luther King Jr. Comes of Age, coming 2018 with Chicago Review Press.

Copyright: © 2017 Patrick Parr. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/

Articles

Presumed Innocent

Boom California on October 14, 2017

Peter Colby

[O]nce those convictions were erased, the presumption of their innocence was restored.

– Justice Ruth Bader Ginsburg

Maurice Atwone Caldwell was released from a California prison over six years ago, but he doesn’t feel free. Hobbled by back pain and suffering from Post-Traumatic Stress Disorder from years in prison, he spends many days in his suburban Sacramento apartment. He feels most relaxed sitting alone in his favored spot on the couch: “I’m secluded here. In prison, you are secluded. You go to your cell, you are separated from everybody. When you have people around you, you’ve got to have a sense of trust. I don’t have no sense of trust.” Looking back on his life, Caldwell doesn’t see much reason to have a sense of trust.

In the summer of 1990, twenty-two-year-old Caldwell was living in San Francisco’s Alemany housing projects. “Little Twone,” as the 5’4 Caldwell was known on the streets, was in a situation shared by many young people today—a few years out of school, working at whatever jobs were available, hanging out with friends and trying to get established in the adult world. In that era of rampant crime and crack cocaine, any young black man with only a high school education would struggle. But Caldwell faced extra challenges.

“To me, my case was personal. My case falls back to my last name—my father.” Donald Ray Caldwell was convicted of killing a San Francisco police officer during a robbery and served nineteen years before being released in 1988. As Maurice sees it, the San Francisco police resented the fact that the elder Caldwell was alive and walking the streets, and they were more than willing to settle the score at Maurice’s expense. In 1989 and 1990, Maurice was arrested more than a dozen times; in every case the charges were eventually dropped.

A botched drug sale in the early hours of 30 June 1990 changed Caldwell’s life. Around 2 a.m., after an evening of drinking, four men drove up Alemany Blvd. looking to buy crack cocaine. They found a dealer, but as the buy was being completed something went wrong and shots were fired from a handgun and a shotgun. The four friends scattered, but one man, Judy Acosta, died from gunshot wounds. Caldwell, who was in bed with his girlfriend in a nearby apartment, heard the shots and ran outside to find out what was happening, but only saw an acquaintance walking away carrying something that looked like a shotgun.

The initial police investigation didn’t turn up much since in the midst of an epidemic of drugs and violence, Alemany residents generally deemed the police more likely to harass a witness than arrest a killer. But several weeks after the murder, neighbor Mary Cobbs identified Caldwell as one of the shooters. He was arrested 21 September 1990. Caldwell’s family scraped together money to hire a lawyer who had never tried a capital case before, but assured Caldwell that “this case is a slam dunk.”

The initial police investigation didn’t turn up much since in the midst of an epidemic of drugs and violence, Alemany residents generally deemed the police more likely to harass a witness than arrest a killer.

The prosecution’s case against Caldwell did have problems. None of the survivors of the shooting were able to positively identify him, and several witnesses testified that Caldwell was indoors when the shooting occurred. The police failed to follow accepted procedures while taking Cobbs’s statements, which cast doubt on the reliability of her identification of Caldwell. However, at trial Cobbs was steadfast in her assertion that she saw Caldwell at the scene of the crime with a shotgun. The jury found Caldwell guilty, and he was sentenced to a term of twenty-seven years-to-life in prison. Cobbs, who claimed Caldwell threatened to kill her if she testified, was proclaimed a hero and awarded the Medal of Merit by the City of San Francisco.[1]

Throughout his twenty years in prison, Caldwell strenuously asserted his innocence. He wrote letters to anyone he could find who might help him. Finally, in 2009 the Northern California Innocence Project (NCIP) took up his cause. The NCIP followed leads that Caldwell had given the police and his attorney, but which neither Caldwell’s attorney (who was later disbarred) nor the police ever pursued. Marritte Funches, serving time in a Nevada prison, admitted he shot Acosta and swore that Caldwell was not involved. Investigators demonstrated that Mary Cobbs could not have seen the incident from her window, and talked with acquaintances who testified that Cobbs lied about Caldwell.

The NCIP filed a petition for habeas corpus in state court claiming that Caldwell’s conviction was based on perjured testimony, that he received ineffective representation by counsel and that he was actually innocent of the crime for which he was convicted. The court ordered him released, finding that his attorney’s inadequate defense constituted a violation of Caldwell’s constitutional rights. Still asserting Caldwell’s guilt, the San Francisco District Attorney entertained retrying the case and offered Caldwell a plea bargain: he could acknowledge guilt and would be released from prison on the basis of the time already served. When Caldwell refused the deal, the District Attorney dropped the charges. On 28 March 2011, Maurice Caldwell was released from prison. He had served over twenty years, just about one year longer than his father.

Caldwell’s release confronted him with new challenges—making a living and a building a life. The family members who stood by him through his ordeal had all died while he was incarcerated. The world had changed while his life was on hold. Caldwell had never owned a cellphone or an iPod, and he barely remembered how to buy a ticket for a Bay Area Rapid Transit (BART) train. The kitchen work he had done while in prison left him with a bad back but no marketable skills.

In some ways, Caldwell was worse off than an inmate who served out an entire sentence. While few would argue that post-release services in California are adequate, at a minimum the system provides the supervision of a parole officer and some limited resources to assist the former inmate’s reentry into society. Since the court found that Caldwell should never have been in the corrections system in the first place, he was not eligible for those services. A 2008 report on wrongful convictions by the California Commission on the Fair Administration of Justice recommended that services to assist reintegration into society be offered to the wrongfully incarcerated.[2] Shortly afterward, the legislature overwhelmingly voted to make this change, but the bill was vetoed by Governor Schwarzenegger. It has never been revived.

Still, Caldwell persevered. He moved in with his sister and her partner, and found work as a laborer at a recycling plant until increasing back pain forced him to leave the job. He moved to Sacramento with his girlfriend and continued to work until disabled by carpal tunnel syndrome. Also, like many who have spent long years in California prisons, Caldwell has suffered (and suffers) from Post-Traumatic Stress Disorder, which contributes to his current disability.

Paige Kaneb (NCIP), sister Debbie Caldwell, grandniece Tayonna, Maurice, Linda Starr (NCIP), fellow exoneree Rick Walker.

Today, Caldwell’s greatest satisfaction comes from working with the NCIP, speaking about his personal experiences. “I’m not one of those persons who get out of prison and stand in front of the camera and say ‘I’m not mad at the system.’ I am mad at the system. And for that, I am doing something about it.” Speaking is therapy for Caldwell. But even more, it is his way of setting up his three children for a better life than he had. “The character I’ve got right now, when my kids grow up, ain’t nobody going to be able to say, ‘your father was a bad person.’ They’ll be able to look and see me speaking, helping people…. I am not doing what my father did to his kids.” But his speaking engagements do little to pay the bills, and Caldwell has few opportunities to earn other income. Having lost literally the best years of his life, Caldwell needs compensation.

There are limited routes for an exonerated inmate like Caldwell to receive compensation. The best hope is a claim for violation of civil rights under federal law by showing that the conviction was secured through illegal actions by police or prosecutors. Though notoriously hard to win, such claims offer the prospect of punitive damages and are the basis for most of the multimillion-dollar verdicts and settlements, as in the infamous Central Park Jogger case. That $41 million settlement paid five individuals approximated $1 million per year served.[3] Caldwell filed a civil rights case in federal court, but the lawsuit was dismissed without a trial (an appeal is currently pending). Claims can be made under state law as well, but these too are only rarely successful.

The other option is a claim under a statute providing compensation for wrongful incarceration. Until relatively recently, few such laws existed. Although California’s statute was enacted in 1941,[4] most states’ laws came in more recently. As of 2000, only fourteen states (along with the District of Columbia and the federal government) had such statutes, and many of those provided negligible amounts.[5] The California statute capped payments at a flat $5,000 until 1969, when the limit was raised to $10,000.[6] A key reason for this was that until the widespread use of DNA evidence, wrongful convictions were deemed rare.

Since the early 1990s, studies (many supported by the New York-based Innocence Project and its affiliates around the country) have documented hundreds of erroneous convictions. In response, many states have made efforts to reduce errors, for example by establishing strict guidelines for obtaining and using eyewitness identifications like that of Mary Cobbs, which are known to be a prime source of wrongful convictions.[7] Many have also passed laws providing compensation for those wrongfully convicted. Currently, thirty-two states have statutes providing compensation for wrongful incarceration. Ironically Texas, which executes far more individuals than any other state, also offers the most generous payments for wrongful incarceration.[8]

Over the years, California’s legislature has modified procedures and increased the amount of compensation available. Payout is now set at $140 per day served (about $50,000 per year), with claims being reviewed by the California Victim Compensation Board and submitted to the legislature for final approval and award. As with statutes in other states, compensation is available only to individuals who are innocent, not to those released as a result of mistakes or governmental misconduct in the course of the prosecution.

The most recent changes in the California requirements for recovery came in 2013 in response to analysis showing that most claims were being denied.[9] The changes in the law seem to have made a difference. Since 2014, seventeen out of twenty-seven claims have been granted.[10] Still, meritorious claims are being denied; at least four of those denied since 2014 were contrary to the recommendation of the staff-hearing officer who heard them. One involved Luis Galicia, who was convicted in 2009 of lewd acts with a child under fourteen years of age.

In 2011, Galicia filed a petition for habeas corpus in state court. By then it had come to light that Dr. Mary Spencer, whose examination of the minor was critical to the prosecution’s case, had given false testimony in a 1991 case (as it turned out, she gave inaccurate information in at least ten other cases, too). Three other doctors reviewed the medical reports and found no basis to conclude any molestation had occurred. The District Attorney chose not to oppose Galicia’s petition and the court ordered his release, but did so without making a finding of innocence.

Galicia filed a claim with the Victim Compensation Board. The Attorney General’s office, who represents the state before the Board, opposed the claim asserting that Galicia was guilty of the crime. After a daylong hearing, the hearing officer concluded that Galicia had proved his claim of innocence and recommended it be paid.

The Board, reluctant to accept the recommendation, asked Galicia’s attorney and the Attorney General’s office to present their arguments to the full Board. No witnesses testified, but a representative of the Crime Victim Action Alliance was allowed to speak and urge the Board to deny Galicia’s claim. The Board rejected Galicia’s claim 3-0. The chair “found that the evidence presented was very complicated, and had difficulty drawing any conclusions.” She said she wanted to support the hearing officer’s recommendation, but “couldn’t find the evidence” that would allow her to accept that recommendation.[11]

California State Capitol via Flickr user Ken Lund.

There are obvious institutional reasons that the Board may be hostile to claims of wrongful incarceration. The Board’s mission and primary business focus is on victims of violent crime, not victims of erroneous prosecution. The stated mission of the Board is straightforward: “The Victim Compensation and Government Claims Board provides financial assistance to victims of crime.”[12] In that capacity, the Board processes tens of thousands of claims per year, and over the last few years has averaged payouts totaling over $50 million annually. In contrast, the program for compensating those wrongfully incarcerated, discussed in the Board’s Annual Report in the section, “Additional Board Functions,” paid out about $14.5 million total from 2001 through 2017.[13]

The composition of the Board as set out in its enabling statute does little to adjust the balance. Two members are specified in the statute. One is the Secretary of the California Government Operations Agency, which is charged with improving government administration and fostering efficiency. The other is the State Controller, who is responsible for the state’s financial resources. As the Controller is required to sit on seventy boards and commissions, they typically designate a staff member for this role. In any case, given the nature of their jobs, neither of these delegated officials is likely to have any expertise in criminal law or procedure.

The third member is chosen by and serves at the pleasure of the Governor with no specified qualifications. Michael Ramos, the District Attorney for San Bernardino County, was appointed in 2004 by Governor Schwarzenegger and has served since. According to an ACLU study, San Bernardino County has the second highest rate of killings by police officers in California.[14] Beyond how this context may inform Ramos’s approach, district attorneys are unlikely to provide sympathetic perspectives for a body reviewing claims against the state being made by those once convicted of a felony.

Ramos’s service on the Board reflects his perspective as a prosecutor. In voting to overturn the hearing officer’s recommendation to approve the claim of Timothy Atkins, he made what has become a typical comment: “I still feel the same way regarding the statements and then one thing that actually stood out for me and when I have these difficult—very difficult decisions—I always lean toward the victims. We have a victim that has been murdered.”[15] It is difficult to see how the plight of victims factors into assessing the evidence of the claimant’s guilt. Indeed, a wrongfully convicted person is also a victim. But, as the longest serving member of the Board and the only one with criminal law experience, Ramos’s pronouncements carry a lot of weight. And the Board generally operates by consensus. Since 2010 there have only been three split votes, and in all three Ramos voted to deny the claim.[16]

California State Senator Bill Monning has recognized the flaws in the system: “Unfortunately, the current compensation review process forces exonerees, who have very few resources, to defend their claim before the Victim’s Compensation Board, whose members are not experienced in the legal nuances of wrongful conviction cases.”[17] In March 2017, Senator Monning introduced SB 321, which would require appointment of a special master, qualified by “education, training, and work experience,” to oversee all claims for wrongful incarceration. However, at least for this session, the bill will not be enacted.

Perhaps the biggest hurdle for a claimant is the burden of proof—under the California law, they have the burden to prove that they are innocent of the crime of which they were convicted.[18] In addition, the Board has issued regulations to clarify how claims should be reviewed. Those regulations specify that the claimant must prove innocence “by a preponderance of the evidence,” which means the Board must find it is more likely than not that the claimant is innocent. This is the standard used throughout the United States for civil claims, and contrasts the heavier burden on the prosecution in a criminal case—proof beyond a reasonable doubt.

However, the Board added a hurdle for claims of wrongful incarceration. The claimant’s testimony can be considered, as well as the fact that they were released and not tried again, or were acquitted on retrial. However, none of that can be the basis of an award without “substantial independent corroborating evidence.”[19] Even after their conviction has been reversed, the claimant’s own testimony cannot be sufficient to support a finding of innocence.

Though the claimant’s burden of proof is deemed met if a court has already made a finding of innocence, there may be no such finding even when the facts indicate it. Most individuals who are exonerated after serving time in jail are released through habeas corpus proceedings in state or federal court. The U.S. Supreme Court has made clear that in the federal courts, the subject of a habeas corpus review “is not the petitioners’ innocence or guilt but solely the question of whether their constitutional rights have been preserved.”[20] Under California law, new evidence pointing to innocence can be ground for reversing a conviction, but it is only one of numerous bases that can be presented.[21] Many state law proceedings, too, are based on claims that the defendant’s constitutional rights were violated.[22] In those cases, discussion of innocence can be beside the point.

In Caldwell’s case, although the Innocence Project lawyers argued that he was innocent, the habeas court vacated the conviction based on lack of effective representation at trial as required by the Sixth Amendment. The court made no finding as to guilt or innocence in his decision, and when Caldwell went back to court to request a finding of innocence to bolster his claim, the court declined. The San Francisco District Attorney who never pursued charges against Marritte Funches, who confessed to shooting Judy Acosta, or against Henry Martin, who was identified by Funches as the shotgun shooter, continued to insist that Caldwell was guilty. Caldwell had no choice but to try to convince the Board of his innocence.

Maurice Caldwell.

Requiring the claimant to prove innocence is inconsistent with a fundamental principle of our criminal justice system: a person charged with a crime is presumed innocent until proven guilty. As the United States Supreme Court put it in 1895: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”[23]

The U.S. Supreme Court recently addressed this issue in a case stemming from Colorado’s Exoneration Act. In addition to providing compensation for wrongful incarceration, the Colorado statute governed recovery of court costs, fees, and restitution paid by those wrongfully convicted and placed the burden of proof on the claimants. Two individuals whose convictions had been overturned sued the state to recover amounts they had paid as a result of their convictions, claiming that the state requirements violated their constitutional right to due process by unduly burdening their ability to recover.

Applying a well-established test, the Court (in an opinion by Justice Ginsburg) weighed the interests of the claimants, the risk that the procedures applied will result in erroneous denial of their claims, and the countervailing interests of the state. The Court opened its analysis by noting that the claimants must be treated as innocent: “Once [their] convictions were erased, the presumption of their innocence was restored.”[24] Since the payments at issue were based solely on the findings of guilt, the state no longer had a basis for retaining the funds.

Colorado argued that if it is proper to require exonerees to prove innocence in order to receive compensation for their time in prison, placing the same burden on recovery of fees and costs must be valid as well. The Court rejected this argument on the grounds that the claimants were not seeking compensation: “Just as the restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the conviction.”[25] But the Court offered no explanation why this distinction should matter. In a separate opinion, Justice Alito questioned the distinction by asking rhetorically, under Ginsburg’s logic, “why shouldn’t the defendant be compensated for all the adverse economic consequences of the wrongful conviction?”[26]

Every Supreme Court justice takes as a given the validity of the Exoneration Act as to claims for compensation for time in prison. None of the thirty-two states allowing compensation for wrongful incarceration (nor the federal law) require the state to prove guilt to prevent an exoneree from being compensated. Indeed, most compensation statutes are much more restrictive than Colorado’s (or California’s), for example, limiting claims to cases involving a gubernatorial pardon or DNA evidence.[27] Still, the Court’s decision raises the question whether these limits are truly defensible as a matter of either constitutional law or policy.

The first consideration in the Supreme Court’s analysis is the interest of the claimant. The claimant has been deprived of their freedom, their relations with family and friends and their livelihood for the duration of imprisonment. If the wrongful incarceration drags on for many years, as in Caldwell’s case, the effects are magnified. Over time, relationships fade away. Family and friends die or move away, skills atrophy and the very ability to be gainfully employed may be lost. Monetary compensation cannot restore the years or repair the damage, but it may be the only means for the exoneree to support himself or herself. The claimant’s interest in the outcome is very high—likely far greater than the Colorado claimants’ desire to recover the relatively small fees and costs at issue there.

It is no surprise that under California’s rules, many claims for compensation fail. In short, the risk of erroneous deprivation of the claimants’ interests is severe.

The second consideration the Court discussed is the risk that procedures used will result in erroneous deprivation of the interest at issue. The prevalence of exonerations across the country shows that even under criminal procedures that (theoretically, at least) provide all constitutional rights to the defendant, including the requirement that guilt be proved beyond a reasonable doubt, innocent people are still convicted. The risk of error is exponentially greater in claims for compensation under statutes like California’s.

Luis Galicia’s case illustrates the significance of which party bears the burden of proof. While the officer who heard the testimony found Galicia’s showing sufficient, the reviewing Board ”had difficulty drawing any conclusions” about the evidence.”[28] It was easy and natural to conclude that Galicia failed to make his case. Shifting the burden to the state would require the Board to rule for the claimant where evidence is inconclusive.

The nature of wrongful incarceration claims exacerbates the impact of placing the burden of proof on the claimant. The state does not provide representation for exonerees in their claims before the Board. As Senator Monning observes, most exonerees have few resources at their disposal before their convictions[29] and even fewer when they are finally released. Exonerees like Caldwell, who served many years, have claims large enough to support contingent fee arrangements. The rest have few options for obtaining counsel. And in any contested case—like Caldwell’s—claimants face the full resources of the state Attorney General’s office.

Claimants are by definition facing a trial transcript that was sufficient to convince a jury of their guilt beyond a reasonable doubt. In some cases before the Board, evidence relied on by the prosecution in the criminal case may be excluded or may have been repudiated. Witnesses may be unavailable—in Caldwell’s case, the key prosecution witness, Mary Cobbs, died while Caldwell was in prison—and memories also fade. All these circumstances will tend to weaken the prosecution’s case, but none will prove the claimant innocent. The same effects hinder the claimant’s efforts to prove innocence. It is no surprise that under California’s rules, many claims for compensation fail. In short, the risk of erroneous deprivation of the claimants’ interests is severe.

The final consideration under the Supreme Court’s analysis is the government’s interest. In entertaining claims for wrongful compensation, the state’s only interest is financial. Compare this to a typical criminal trial where if a finding of “not guilty” is erroneous, a criminal escapes punishment. Yet, by applying the rigorous requirement of proof beyond a reasonable doubt, we signal that we are willing to accept this risk in order to minimize the risk of a greater harm: convicting an innocent person. If a claim for compensation for wrongful incarceration is granted in error, the calculus is different. The guilty party already either has or has not been punished, no matter the result of the proceeding. The only “harm” to be suffered by the state is payment of compensation to a guilty party.

Maurice and his grandniece Tayonna.

It could be argued that an erroneous payment is not even harmful. The claimant, by definition, served time in prison without a valid conviction being made. Though no U.S. jurisdiction has done so, a government could decide, as a matter of policy, to compensate all those wrongfully incarcerated whether guilty or not.[30] Such a policy might even save money. Providing compensation to all who were wrongfully incarcerated, regardless of whether the evidence shows they were innocent, might reduce the likelihood that those released will commit additional crimes.[31]

In any case, the amounts at issue are vanishingly small compared to the cost of the prison system. The current California budget includes $11.4 billion for the correction system.[32] To call the expenditures on exonerees a drop in the bucket would exaggerate their importance. A 2015 study by Berkeley Law provides a more useful comparison. The study looked at the state’s expenditures on the 692 individuals who were exonerated from 1989 through 2012 and found that incarcerating the exonerees cost the state $148 million (and this figure did not even include the cost of prosecuting the cases).[33] Paying claims made to the Victim Compensation Board cost just $5 million—less than 4% of the costs already incurred by the state for those individuals.

If the State of California can devote so many resources to the task of sending citizens to prison and keeping them there for years, surely it can afford to compensate more of those who should never have been there in the first place.

Still, the Supreme Court made clear in the Colorado case it is not ready to require states to accept the burden of proof. In fact, the Colorado statute requires claimants to prove their innocence by clear and convincing evidence, a much higher standard than California imposes. Yet the same analysis used by the Court in finding the Colorado law unconstitutional as it applied to recovering fees and costs could be applied to the burden California places on people like Caldwell that seek compensation for the years they lost to a mistake by the state.

Of course, the legislature does not need to be constrained by the Supreme Court’s rigorous application of balancing tests and its adherence to precedent. The legislature can review the system and conclude, as it did in 2013, that the procedures in place are simply not fair. The legislature can decree that the current law places too great a burden on those whom the criminal justice system already failed once. Shifting the burden of proof would make a tremendous difference.[34]

In the meantime, the cases drag on. Maurice Caldwell filed his claim for compensation in March 2013. The matter was heard before an officer of the Board on 9 May and 31 May 2017. On 1 September, the hearing officer issued his Proposed Decision: a denial.

The Proposed Decision is baffling. The officer acknowledges that at least seven witnesses supported Caldwell’s version of the events, while “only one strong witness” implicates him—the deceased Mary Cobbs. He brushes aside testimony from the NCIP attorney that Cobbs could not have seen the shooters from her apartment, as well as all the evidence that the police improperly influenced Cobbs—not only moving her out of the projects but also by paying for a trip to Disneyland. As for Caldwell’s witnesses, Marritte Funches confessed to shooting Judy Acosta, a conclusion supported by every witness, and swore that Caldwell was not involved. The hearing officer blithely concludes that since the district attorney never pursued charges against Funches, those statements must not be credible.

What does the hearing officer believe occurred on that night in 1990? He accepts the testimony that Caldwell was in a bedroom with his girlfriend at the time of the shooting, but notes that Caldwell ran outside and “it is unknown what occurred.” To find Caldwell guilty of Acosta’s murder, one would have to believe that Caldwell heard shots, dressed, left the apartment, picked up a shotgun, and ran out to the street, arriving in time to shoot a man fleeing from someone else’s drug deal gone bad.

But in this proceeding, the hearing officer had no need to determine whether Caldwell was guilty. Caldwell was already denied the presumption of innocence, so the hearing officer can rest his decision solely on the burden of proof. He concludes that none of the witnesses on either side “can comfortably be found reliable which is detrimental to Caldwell’s case since he has the burden of proof.” In summary: “None of these pieces of evidence show guilt but they raise further hurdles for Caldwell to show his innocence…. Caldwell has failed to meet his burden of proof.”[35]

So long as the State of California imposes the burden of proof on those seeking compensation, the Victim Compensation Board will repeat that refrain. Individuals who served time in prison for months or years for crimes they did not commit, whether due to police misconduct, abuse of prosecutorial discretion, or simply witnesses who hope to gain an advantage by providing false testimony, will continue to be relegated to the fringe of society.

As for Caldwell, he will pursue the fading glimmers of hope: contesting the Proposed Decision before the Board and litigating his appeals. Any changes in procedure will be too late to make a difference for his life or to help him set a better course for his three children.

Maurice and his family: Amaya Haynes, baby Iyanna Caldwell, Maurice, little Maurice Caldwell, and girlfriend Pamela Haynes.

Notes

[1] Ken Garcia, “Mary Cobb, Genuine Hero, Leaves Legacy of Truth, Grit,” San Francisco Chronicle, 20 January 1998, http://www.sfgate.com/news/article/Mary-Cobb-Genuine-Hero-Leaves-Legacy-of-Truth-3015468.php.

[2] “California Commission on the Fair Administration of Justice Final Report,” 30 June 1998, 18.

[3] Benjamin Weiser, “Settlement Is Approved in Central Park Jogger Case, but New York Deflects Blame,” The New York Times, 5 September 2014, https://www.nytimes.com/2014/09/06/nyregion/41-million-settlement-for-5-convicted-in-jogger-case-is-approved.html.

[4] California Penal Code §§ 4900-4906.

[5] Table showing compensation statutes of the states prepared by The Innocence Project, https://www.innocenceproject.org/wp-content/uploads/2017/09/Adeles_Compensation-Chart_Version-2017.pdf.

[6] The corresponding federal law limited payouts to $5,000 until 2003, when the Innocence Protection Act raised the limits to $50,000 per year, and $100,000 per year on death row. California Commission, pp. 103-04.

[7] “California Commission on the Fair Administration of Justice Final Report,” 24-32.

[8] See https://deathpenaltyinfo.org/number-executions-state-and-region-1976.

[9] Data provided by the California Victim Compensation Board, 1 August 2017 (hereafter, “CVCB Data”). For reflection on this legislation nearer the time, see http://www.latimes.com/nation/la-na-exoneree-national-20141220-story.html and https://www.prisonlegalnews.org/news/2014/may/19/california-improves-compensation-process-wrongfully-convicted-prisoners/.

[10] “CVCB Data.”

[11] In the Matter of the Application of: Luis Galicia, Board Decision of 18 February 2016, 3. See https://www.victims.ca.gov/docs/pc4900/PC-4900-Denied-Galicia.pdf.

[12] California Victim Compensation Board, “Strategic Plan 2016-2018,” 1, victims.ca.gov/docs/reports/StrategicPlan2016.pdf.

[13] “CVCB Data.”

[14] Conor Friedersdorf, “Police in California Killed More Than 610 People Over 6 Years,” The Atlantic, 5 October 2015, https://www.theatlantic.com/politics/archive/2015/10/police-in-california-killed-more-than-610-people-over-6-years/407326/.

[15] In the Matter of the Claim of Timothy Atkins, Amended Proposed Decision, 16 January 2015, Exhibit B (transcript of the Board meeting), 14. Similarly, in a recent case where the underlying conviction was for arson, Ramos identified the fact that a mother and her two babies died in the fire as “the circumstances I took into consideration” in overruling the hearing officer’s recommendation that the claim be paid. In the Matter of the Application of: George Souliotes, Board Decision of 18 May 2017, 6.

[16] “CVCB Data.”

[17] Provided by the Office of Senator William Monning, 29 August 2017, used by permission.

[18] California Penal Code § 4903(a).

[19] Cal. Admin. Code tit. 2, §§ 644(c) (burden of proof); 641(a) (requirement of corroborating evidence).

[20] Moore v. Dempsey, 261 U.S. 86, 87-88 (1923); Herrera v. Collins, 506 U.S. 390, 400 (1993). The federal statute governing habeas corpus, 28 U.S.C. § 2254(a), specifies that a federal court may consider a habeas petition “only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.”

[21] See California Penal Code § 1473.

[22] In re Winchester, 53 Cal. 2d 528, 531 (1960): “Habeas corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights.”

[23] Coffin v. United States, 156 U.S. 432, 453 (1895). See In re Winship, 397 U.S. 358, 361 (1970).

[24] Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017), applying analysis from Mathews v. Eldridge, 424 U.S. 319 (1976).

[25] 137 S. Ct. at 1257.

[26] 137 S. Ct. at 1260-61.

[27] Maine requires a pardon by the governor, Maine Rev. Statutes § 8241; Missouri requires proof of innocence through DNA testing, Missouri Rev. Statutes § 650.058.

[28] In the Matter of the Application of: Luis Galicia, Board Decision of 18 February 2016, 3.

[29] A report by the Prison Policy Initiative found that the United States prison population had a pre-incarceration income 41% less than the average American. Bernadette Rabuy and Daniel Kopf, “Prisons of Poverty: Uncovering the Pre-Incarceration Incomes of the Imprisoned,” 5 July 2015, https://www.prisonpolicy.org/reports/income.html.

[30] The Ohio legislature is currently considering changes to its compensation statute that would allow exonerees to recover if their civil rights were violated, even if they are not able to prove innocence. Josh Sweigart, “Provision on Wrongful Imprisonment Axed, But May Get Second Life,” Dayton Daily News, 29 June 2017, http://www.daytondailynews.com/news/state–regional-govt–politics/provision-wrongful-imprisonment-axed-but-may-get-second-life/CMBTbW7aN3xbZca84knn0L/.

[31] The state could provide some or all of the compensation in the form of payments over time, which could be terminated if the claimant were to be convicted of a new crime. Texas has this provision. See Texas Civil Practice and Remedies Code, ch. 103.

[32] Associated Press, “At $75,560, Housing a Prisoner in California Now Costs More Than a Year at Harvard,” Los Angeles Times, 4 June 2017, http://www.latimes.com/local/lanow/la-me-prison-costs-20170604-htmlstory.html.

[33] “Criminal Injustice,” The Chief Justice Earl Warren Institute on Law and Social Policy, Berkeley School of Law (2015), https://static1.squarespace.com/static/55f70367e4b0974cf2b82009/t/56a95c112399a3a5c87c1a7b/1453939730318/WI_Criminal_InJustice_booklet_FINAL2.pdf.

[34] An argument to shift the burden of proof was made several years ago in a law review article. Daniel S. Kahn, “Presumed Guilty until Proven Innocent: The Burden of Proof in Wrongful Conviction Claims under State Compensation Statutes,” U. Mich. J. L. Reform 44 (2010): 123-68.

[35] In the Matter of the Claim of Maurice Caldwell, Proposed Decision, 14 August 2017, 24.

Peter Colby writes on social and political issues, drawing on his varied career experiences, and his work has been published in Anthropology Now. He has worked in land conservation for the last fifteen years and previously practiced litigation, real estate, and environmental law. Peter graduated from the University of Virginia and obtained his law degree from Berkeley Law, University of California.

Copyright: © 2017 Peter Colby. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/

Articles Photography/Art

Water is Life

Boom California on October 12, 2017

Alessandra Bergamin
Briana Flin

It is a Saturday evening in April and Celerina Chavez is making albondigas—Mexican meatball soup. In a heavy pot, the soup simmers gently, sending the smell of carrot and cilantro throughout the house. With an oven mitt, Celerina lifts the hot lid. “The soup needs more water,” she says.

On the tiled bench beside the sink sits a large container of purified water, the five-gallon kind found in office buildings. Smaller bottles of water sit on the table, ready to drink with dinner. Celerina fills a pitcher from the five-gallon jug and pours a dash into the soup. She stirs it, then tastes it. Dinner will be ready soon.

Earlier that afternoon Celerina and her husband Bartolo made the trip from their home in Arvin to the Costco in Bakersfield. Every week they drive more than twenty miles to buy bottled water in four heavy pallets. Tomorrow, Bartolo will go to Arvin’s water district to use his two tokens, provided by the city, and refill that five-gallon jug at a purified water station.

They cannot drink the water that runs from the faucet.

Arvin is one of more than ninety public water systems across California having water contaminated with 123-Trichloropropane, or 123-TCP. The chemical originated as a by-product of two soil fumigants, D-D made by Shell Oil and Telone from Dow Chemical. These products were used heavily in agriculture from the 1940s until they were discontinued in their original formulation in the mid 1980s. During that time, however, they leached into the groundwater, contaminating the wells that most of the Central Valley relies upon.

Kern County is the most affected in the state. While Bartolo and Celerina have lived in Arvin, a town in Kern, for more than twenty years, they only discovered their water was contaminated three years ago. Before that, they and their three children unknowingly drank the contaminated tap water.

“We’re in the United States, it isn’t just any country, so why is the water bad, why is the water so contaminated?

“We’re in the United States, it isn’t just any country, so why is the water bad, why is the water so contaminated?” Celerina says in Spanish, her and Bartolo’s native tongue.

Bartolo Chavez leads the way through his three bedroom home to the bathroom. There, he turns on the shower and lets the water run. It is warm but not hot enough to be steamy. The overhead fan whirrs. They are cautious about bathing too—short and cold showers are routine in their household, although not in others.

“The warmer the water, the more dangerous,” he says. “In the community, the people do not know that.”

For more than twenty-five years the State of California has classified 123-TCP as a known carcinogen. Yet the chemical was only regulated earlier this year. July 2017, following a public and stakeholder comment period, the State Water Board set the maximum contaminant level for 123-TCP in drinking water at five parts per trillion. With the contaminant at this concentration, communities still have an increased risk of developing cancer compared to those with uncontaminated water, but that risk is less than one case per 100,000 people.^[1] It comes as good news for communities across the Central Valley, many of which have 123-TCP concentrations of more than seven parts per trillion, meaning higher cancer risks.^[2]

“This new health-protective regulation for 1,2,3-TCP is a victory for all the Californians… seeking to secure for themselves and their families what most of us have the luxury of taking for granted—the basic human right to safe drinking water,” said Jonathan Nelson, Policy Director for Community Water Center in a press release shortly after the announcement.^[3]

But treating water is also an expensive undertaking and the burden of cost may be placed upon consumers who live in smaller water markets and already pay higher rates. Because of this, many public water utilities, including Arvin’s, have filed lawsuits against Shell Oil and Dow Chemical for damages.^[4] Most complaints claim the products’ problems outweighed the benefits and that the companies failed to disclose 123-TCP as an ingredient.

“We have internal documents that show they [Shell and Dow] knew from a very early point in time that 1,2,3-TCP was in the products and not doing anything to help the farmers but yet, it remained,” said Jed Borghei, an attorney representing Arvin’s public water utility.^[5]

Some, such as Clovis, have already received some recompense, settling a lawsuit against Shell Oil in 2016 for $22 million.

Treating the water also takes time—anywhere from a few months to a few years. Meanwhile, residents of affected communities, like Bartolo and Celerina, still shoulder the burden of procuring clean water.

“It is something good they are going to do,” Bartolo said of the regulation prior to its adoption. “But they need to act fast because if they wait more time, that is more harm to humanity.”

Notes

^[1] California State Water Resources Control Board, “Frequently Asked Questions: 1,2,3-Trichloropropane (TCP) in Drinking Water,” 18 July 2016, https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/documents/123-tcp/123tcp_factsheet.pdf.

^[2] California State Water Resources Control Board, “1,2,3-TCP Concentrations Above 5 ppt,” last accessed 11 October 2017, https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/documents/123-tcp/123tcp_map_5ppt.pdf.

^[3] Community Water Center, “Press Release: State Votes to Protect Californians From Carcinogen, TCP,” 18 July 2017, http://www.communitywatercenter.org/tags/tcp/.

^[4] Robins Borghei LLP, “Robins Borghei LLP: The Leader in 1,2,3-TCP Groundwater Contimination Litigation,” last accessed 11 October 2017, http://rbwaterlaw.com/tcp-litigation/.

^[5] From video interview with Jed Borghei of Robins Borghei LLP, conducted by Alessandra Bergamin and Briana Flin, 26 April 2017.

Alessandra Bergamin is a freelance journalist who reports on agricultural communities, environmental justice and inequality. Her work has been published in Bay Nature, Misadventures and Flint Mag. She is a former Harper’s Magazine intern and current student at the UC Berkeley Graduate School of Journalism. Follow her on twitter @AllyBergamin.

Briana Flin is a Bay Area-based multimedia journalist interested in culture, immigration and social justice. She’s produced stories for Rewire.org and Oakland North and her work has been shared by PBS. She’s currently a new media student at the UC Berkeley Graduate School of Journalism. Follow her on twitter @BrianaFlin.

Copyright: © 2017 Alessandra Bergamin and Briana Flin. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/