• Proposed SCOTUS ‘Defender General’ Faces Hurdles, Lawyers Say
    A proposal to put advocacy for criminal defendants on more equal footing at the U.S. Supreme Court could move the law in a favorable direction for them, but some lawyers worry it may lead to discarding individual cases for the greater good. The “Defender General,” professors Daniel Epps of Washington University School of Law, and William Ortman of Wayne State University Law School, explain in an upcoming law review article, would be a “public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States.” They say the office would counter the weight of the U.S. solicitor general’s office, which represents the government at the court and is staffed by top lawyers. The office could attract experienced criminal defense attorneys and Supreme Court litigators because of the prestige of Supreme Court practice, the article said.
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    Spotlight on the News: A scholarly look at the Trump impeachment trial
    Spotlight on the News took a scholarly look inside the Trump impeachment trial. What does our U.S. Constitution really mean? Among the guests was Professor Kirsten Matoy Carlson, of Wayne State University’s Law School.
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    Levin Center launches website on congressional oversight case law
    The Levin Center at Wayne State University Law School Tuesday launched “Emerging Case Law on Congressional Oversight,” a website that provides free public access to detailed information and updates on current court cases examining the right of Congress to obtain information to carry out its constitutional responsibilities. “In light of the unprecedented number of ongoing disputes between Congress and the president over the right of Congress to obtain information, the Levin Center at Wayne Law is now making it easier to follow what’s going on in the courts,” said former U.S. Sen. Carl Levin, chair of the center. “As far as I know, the country has never had so many congressional oversight cases going through the courts at the same time. Three of the cases are headed to the Supreme Court, and more may follow. Our new website offers support to those in the legal community, academia, Washington, the media, and public who want to track congressional oversight cases.”  
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    Wayne Law professor named among most influential corporate board directors
    Wayne State University Law School Professor Katherine White has been named among WomenInc. Magazine’s 2019 Most Influential Corporate Board Directors for her service on the Board of Directors for Old National Bancorp. White joins leading corporate board directors from across the country, including Mary Barra, chairman and CEO of General Motors. WomenInc.’s winter edition features a directory of more than 700 directors serving on the boards of S&P 1000/Mid-Cap publicly held companies and is the most comprehensive listing of women executives, influencers and achievers contributing leadership to corporate boards. White joined the Wayne Law faculty in 1996. She was appointed by the secretary of commerce to serve on the U.S. Patent and Trademark Office Patent Public Advisory Committee (2000-02) and is also currently a member of the U.S. Department of Agriculture’s Plant Variety Protection Office Advisory Board. In addition, she has been a member of the University of Michigan Board of Regents since 1999. She joined the Old National Bancorp Board of Directors in 2015. White is a Fulbright senior scholar (Germany), a White House fellow (2001-02), and a registered patent attorney.
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    Michigan Democrats take aim at Nestlé. Farmers urge caution
    A Swiss company’s water withdrawals in northern Michigan are again stoking long-simmering tensions, with the issue becoming part of a larger debate over who controls water diversion across the Great Lakes region. In a one-two punch, Nestlé Waters North America, Inc. is the target of two state bills designed to increase the state’s control over groundwater supplies shortly after the company lost a court appeal related to its plans to increase pumping rates. It’s the latest turn in a longstanding dispute over whether Nestlé’s groundwater extraction for Ice Mountain bottled water is an acceptable use of the state’s public water supplies. Rep. Yousef Rabhi, D-Ann Arbor, told Bridge that the court ruling strengthens the argument behind a bill he is sponsoring that would make groundwater part of the public trust. Groundwater has historically been excluded from public trust doctrine because Michigan courts have limited public trust waters as those that are “navigable,” said Noah Hall, a law professor at Wayne State University who specializes in water regulations. While Rabhi said the bill would expand opportunities for litigation against water withdrawals, Hall said he is less confident it would play out that smoothly. “It’s hard to see it being a game-changer on any specific water use that’s in play right now,” he said. “No court has really answered head-on the fundamental question of whether bottling and selling water violates public trust” regardless of source. Hall agreed that the bills could have unintended consequences. “If you want to protect groundwater as a natural resource from overuse, then you have to be willing to take on [agriculture] and other water users which are the major users of groundwater,” Hall said. “If what you're trying to do is ban bottled water, then ban bottled water,” Hall suggested. “It seems a little silly to try to craft a protection for water that protects water from one use and not others, especially when [bottled water] is not a particularly large use.”
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    The power of a subpoena
    Kirsten Carlson, associate professor of law, talked about the power and use of subpoenas during the impeachment process. The House moves forward on impeachment, but some subpoenas are still in the air. Energy Secretary Rick Perry declined to provide documents, as did Defense Secretary Mark Esper, Vice President Pence, Chief of Staff Mick Mulvaney and Secretary of State Mike Pompeo. In fact, President Trump has often stiffed the U.S. Congress when it sought documents in testimony. Has this Congress made effective use of its subpoena powers in your judgment? “I think they're doing the best they can. You know, the subpoena power is an important part of Congress's investigative power. It's also sort of a last resort. Congressional committees usually try to get the information willingly from the executive branch. And historically, presidents have been willing to negotiate. And so they haven't had to use the subpoena power as heavily as this Congress has had to. We have a president that's on record saying, he's not going to negotiate with Congress, so Congress doesn't have another option. They've got to subpoena the documents and information that they want, and they've got to work it through the courts to get them enforced.”
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    Impeachment: Two quotes that defined the first day of public hearings
    Kirsten Carlson, Wayne State University associate professor of law and adjunct associate professor of political science, and Chris Edelson, assistant professor of government, American University School of Public Affairs, wrote an article on the impeachment proceedings. Wednesday was the first day of public hearings in the House impeachment inquiry. Two career diplomats – William B. Taylor Jr., acting ambassador to Ukraine, and George Kent, deputy assistant secretary of state for European and Eurasian affairs – gave testimony to the House Intelligence Committee. Two scholars listened, and each picked one quote to analyze. “What we will witness today is a televised theatrical performance staged by the Democrats”. - Rep. Devin Nunes, Republican of California. “In this highly partisan era, Rep. Nunes’ words come as no surprise,” Carlson wrote. “Nunes was attempting to discredit the impeachment inquiry as a partisan attack on President Donald Trump. But his emphasis on partisanship obscures a vital function of Congress in protecting the public and preserving democratic government: oversight. Oversight is part of the U.S. Constitution’s carefully orchestrated balance of power among the three branches of government. The Constitution authorizes, if not obligates, Congress to exercise oversight over the executive branch.”
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    Courts have avoided refereeing between Congress and the president, but Trump may force them to wade in
    Kirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for The Conversation about President Trump’s refusal to hand over records to Congress and allow executive branch employees to provide information and testimony to Congress during the impeachment battle. Carlson calls these actions “the strongest test yet of legal principles that over the past 200 years have not yet been fully defined by U.S. courts.”
  • Antitrust experts decry DOJ’s ‘outrageous’ stance in Writers Guild case
    Several experts on antitrust law have expressed concern at the stance taken by the Department of Justice in the ongoing legal feud between Hollywood writers and their agents. Three agencies have sued the Writers Guild of America (WGA) for alleged violations of antitrust law. A key hearing will be held in federal court on Friday, as a judge weighs whether to grant the union’s motion to dismiss the suit. Last week, the DOJ’s Antitrust Division filed a brief siding with the agencies, and arguing that the union may have violated the Sherman Act. “It’s outrageous,” said Sanjukta Paul, a professor at Wayne State University Law School who studies the intersection of labor and antitrust law. “This is not a neutral reading of the law.” Paul said the brief in the WGA case goes farther than the arguments the DOJ has made in other cases. “I don’t think this is about the Writers Guild,” she said. “It’s not that they care fundamentally about how the talent agency ecosystem works in Hollywood. It’s a signal that labor coordination should be disfavored in favor of corporate power.”
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    Second chance: Wayne Law grad overcomes early troubles to launch legal career
    On Nov. 22, Wayne Law graduate Bob VanSumeren was sworn in before Hon. Michael Smith, the same judge who sentenced him in 1999 to 70 to 240 months in prison, after VanSumeren robbed a gas station with a BB gun, followed by an unarmed robbery of a bank. The swearing-in, almost 20 years to the day, was in the same courthouse, First Circuit Court in Hillsdale. “The judge didn’t remember me,” VanSumeren says. “I don’t know if he knows how largely he loomed in my mind for many years. I met with him before the ceremony, to make sure he was in fact okay with all of it.’ After his release in 2005, he studied at Jackson College, then headed to Western Michigan University to earn his undergraduate degree in comparative religion, sociology and psychology; a master’s degree in comparative religion; and a graduate certificate in spirituality, culture and health. His next step was Wayne State University Law School, where he earned his juris doctor in 2018. He is deeply appreciative of his law school experience. “Wayne Law was supportive of me—when no other school would admit me because of my past, they took a chance on me,” he says. “I didn’t often tell my story, but some knew it. The professors who knew about my past were caring and helpful. The administration was great, especially Felicia Thomas, then assistant dean of Student Affairs. “If I had it to do over again, I’d spend less time worrying about what others might think about me, because the truth is, the folks at Wayne Law were often a lot more accepting of me than I was of myself,” he adds. “I think sometimes people in my position—formerly incarcerated, people with troubled pasts—hold on to things longer than necessary. I can look back and see instances where I was my own barrier.”  
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    Wayne Law holds rank as Best Value Law School
    For the sixth consecutive year, Wayne State University Law School has been recognized as a Best Value Law School by The National Jurist and its sister publication, preLaw magazine. Of the 58 law schools on the list for 2019, Wayne Law was the only Michigan law school included. The ranking is designed to recognize the law schools where graduates have excellent chances of passing the bar and getting a legal job without taking on a ton of debt, according to the publication. Criteria for selection includes ultimate bar pass rating and two-year pass rate, employment rate, tuition, cost of living and average student debt accumulation. preLaw magazine also recognized Wayne Law among the top law schools in the category of Business Law.
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    The 1974 Supreme Court Ruling On Detroit School Busing That Worsened Segregation
    It’s the early 1970’s. The City of Detroit is still licking its wounds after that black day in July of 1967. White flight to the suburbs is in full effect and, as those families moved out, Detroit’s racial composition began to change. One of the places that was apparent was in the city’s public school system. The NAACP filed a suit challenging lawmakers on the issue, alleging that school inequality reflected the various housing policies and economic redlining present in the city. The key question: How do you integrate a district that, on its own, is becoming less diverse? The solution, known as interdistrict busing, where Detroit public school students cross city borders to attend schools in the suburbs and vice versa, led to the 1974 US Supreme Court case known as Milliken v. Bradley. Peter Hammer, law professor and director of the Damon J. Keith Center for Civil Rights, says the NAACP argued that school integration could never occur where those discriminatory factors are present. “Nobody historically argues about the fact that there was discrimination,” says Hammer. ”The whole controversy in Milliken deals with the remedy.” WDET’s Alex McLenon spoke with Hammer about Milliken v. Bradley, the evolution of regional busing in southeast Michigan, and the lasting legacy of the decision on Detroit Public Schools.
  • Impeachment process explained if President Trump is convicted
    Robert Sedler, Wayne State University professor and Constitutional law expert, talked about the impeachment process and what would happen if President Trump is removed from office. “Under the Constitution the President is succeeded by the Vice President. That happened in 1974 when (President) Nixon, knowing that there would be a two-thirds vote in the Senate to convict him, chose to resign and Gerald Ford of Michigan became President…If President Trump were impeached and convicted, Vice President Pence would succeed to the presidency.
  • Make antitrust democratic again!
    Sanjukta Paul, assistant professor of law at Wayne State University, and Sandeep Vaheesan, legal director at the Open Markets Institute, co-wrote a piece calling on “remaking antitrust law and restoring its historical purpose.”
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    'It's the Neighborhood Watch of 2020,' police say as doorbell cams proliferate
    Recognizing the growing proliferation of home security cameras — in doorbells, on floodlights and porches and at back doors — many law enforcement agencies are jumping on the latest tech bandwagon to spot possible crime trends, share safety information and request videos from app users in an effort to stave off and solve crimes. But Amazon's Ring app (and others like it) and the idea of law enforcement joining the “real-time crime and safety alerts” community is raising concerns about privacy, profiling, less than transparent public-private partnerships and what critics see is another step closer to a Big Brother police state. Peter Henning, law professor and former federal prosecutor, said Ring “plays on people’s fears about home security and so partnering with the police is smart for them. It sends a message we’re here to help, and certainly for the police, anytime they can get video, it’s helpful to them.” Robert Sedler, a constitutional law professor, said that when people are out in public, they should expect their actions can be viewed by others. He said that he’s not troubled by video cameras that observe people in public, saying “it’s in the open.” For example, he said, if police set up a video camera to observe speeders, that’s not a problem. He said he, unlike a lot of civil libertarians, supports the police “as long as they operate within established rules.” However, Sedler said, “we have a right to be secure in our homes."
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    Court weighs Detroit literacy battle: 'Is this really education?'
    The long-term impact of a substandard K-12 public education is among several legal arguments raised in a high-profile civil lawsuit before the U.S. Court of Appeals for the 6th Circuit on Thursday. It was filed by Jamarria Hall and six other Detroit school students. A three-judge panel is set to hear oral arguments in Cincinnati in the 2016 case in which the Detroit students allege a lack of books, classrooms without teachers, deplorable building conditions and extreme temperatures deprived them of their right to access literacy in their public schools and should be remedied by the court. The class-action lawsuit, which is seen as an unprecedented attempt to establish that literacy is a U.S. constitutional right under the 14th Amendment, is being closely watched by education, legal and civil rights experts with some saying it could make its way to the U.S. Supreme Court. Justin R. Long, a state constitutional law expert and an associate professor of law at Wayne State University Law School, said the case has "zero likelihood of success" in federal court because the legal questions raised by attorneys for the students have already been answered by the U.S. Supreme Court. "The federal claim is just a loser," Long said. "(SCOTUS) said there is no federal constitutional right to literacy. The 6th Circuit will come out the same way. I don’t think it will get to Supreme Court." Long said as a state constitutional law expert and father of a child attending a Detroit school, he strongly believes there needs to be a right to access literacy, and it needs to be judicially enforced. "We do have a right to access literacy. It’s not located in the U.S. Constitution. Maybe it should be, but it's not," Long said. "Those kinds of questions under the state Constitution are much closer."
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    Why defendants in the college admissions scam are changing their pleas
    Former Pimco CEO Douglas Hodge pulled the trigger. So did Hercules Capital founder Manuel Henriquez and Michelle Janavs of the Hot Pockets family food empire. In the space of 22 hours late last week, the U.S. revealed that the three would change their pleas to guilty in the biggest college admissions scam it has ever prosecuted. That’s after they spent months planning their defense to fraud and money-laundering conspiracy charges — charges that could send them to prison for years if they lost at trial. And that may explain the rush for the exits. “After Felicity Huffman got 14 days in prison, I expect what happened is defense lawyers said, ‘This is the time to cut a deal, because if you risk going to trial and are convicted of conspiracy to commit money laundering, you could be looking at serious prison time,” said Peter Henning, a former federal prosecutor who’s now a law professor at Wayne State University. “If I’m a defense lawyer, I’m telling my client to get out and get this behind you, and hopefully you can get a fairly light sentence,” Henning said. “It’s time to announce defeat and move on.” The “trial penalty” in this case could add up to a year or two behind bars, he said. “I think the message is out,” Henning said. “Cut your deal now and hopefully you’ll receive a lighter sentence.”
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    Wayne Law student passionate about public interest sector
    After earning his undergrad degree in political science, Ben VanBarr worked for a couple of nonprofits that aligned with his focus on public interest work. “Although the work was very rewarding, I came to feel I wasn’t contributing at my highest potential and that I could make a more significant impact as a lawyer,” he says. So he headed to Wayne State University Law School, where he is now in his 2L year, and has been involved in the ACLU Student Chapter and Keith Students for Civil Rights. “Wayne Law has been a great environment for me — the campus environment is very community-minded – both in terms of the community of our school and the community of Detroit,” he says. “It’s great to be in a place where so many people have the same kind of public interest background. “I also feel I’ve been treated with sincere respect by the faculty and administration. They appreciate my professional experience and have allowed and supported my efforts to apply my background, not least by supporting the human trafficking conference.”
  • Don't start 'wage war' for workers, top executive warns, raising antitrust fears
    A top executive at a petrochemical plant visited this summer by Donald Trump called on his industry not to fight a “wage war” for workers, in remarks that raised antitrust concerns with labor advocates and legal experts. “Just driving up wage rates and focusing only on monetary attraction as a solution has impacts that outlast our projects long after they’re built,” Paul Marsden, a senior vice-president of Bechtel, said at an industry conference. “But as an industry, my ask is that we’ve got to think broader than this. “What we can’t afford, especially as an emerging and growing region, is a wage war,” Marsden added. “Because I can tell you, we will lose.” In addition to federal authorities, state attorneys general have legal power to investigate evidence of illegal collusion in the marketplace, said Professor Sanjukta Paul, who teaches labor and employment law at Wayne State University Law School. “It’s something that would certainly in my mind warrant an investigation by appropriate agencies at a federal and state level,” she told the Guardian. Even if not considered an invitation to collude, remarks like Marsden’s could be relevant later, if evidence emerged that, say, wages offered on petrochemical construction projects are very similar, which could suggest employers reached a tacit agreement on rates, she said.
  • Grassroots power: Leading Canadian water activist says community action needed to protect water rights
    In the universe of water and social justice activism, there are few names more prominent than Canada’s Maude Barlow. Barlow has a lengthy list of awards and honorary degrees but is best known in her 34-year activist career for her work travelling the world advocating for access to water as a human right. She advised the United Nations in that capacity and was recognized by the U.N. in 2010. Her current focus is on the increasing threat to drinking water quality, water shutoffs to the economically disadvantaged, privatization of public water systems and plastic pollution to the Great Lakes. “Maude Barlow has been sounding the alarm on water privatization for years, and she’s right, while mainstream American environmental leaders have ignored her,” said Noah Hall, Wayne State University professor and water law expert. “And we now live in a world of bottled water for the haves and water shutoffs for the have nots,” Hall said.
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    Poll shows Americans believe small businesses can refuse services to Jews, minorities
    Nearly 20 percent of Americans believe small business owners can refuse service to Jews and other minorities based on religious freedom. Back in June of this year, the Jewish Telegraphic Agency reported a recent poll found that roughly 1 in 5 Americans believe small business owners have the right to decline service to Jews and other minorities if it violates their religious values. Wayne State University Constitutional Law Professor Robert Sedler was not shocked by the data. “It should not be surprising that people who are hostile to gays and lesbians, to minorities, would also be hostile to Jews,” Sedler says. “This should not surprise us. This has always been the case. It is not uncommon for businesses to use religious freedom as a means to defend their discrimination against a differing group.” One example occurred in 2014 when Hobby Lobby was under scrutiny disagreeing with the Affordable Care Act’s mandate to provide contraceptives, such as an IUD, because the company believed the use of contraceptives resembles an abortion. “The Supreme Court ruled to uphold their claim of religious freedom because as an alternative, Congress simply has the employer notify the insurance company that they’re not covering this and the insurance company will then cover it,” Sedler says. “What you see here is religious groups now using freedom of religion to try to deny women access to contraception,” Sedler says. “You also saw this appear in the bakery case when the baker complained that their religious freedom granted them the right to deny baking a cake for a same-sex couple.”
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    Federal government resumes capital punishment
    On Wednesday, the federal government announced it would resume capital punishment, allowing the federal government to carry out the death penalty after a 16-year lapse. Peter Henning, Wayne State University law professor, was a guest on the Paul W. Smith show talking about the process of resuming capital punishment at the federal level and the potential for legal challenges. Henning pointed out that capital punishment at the federal level has not been carried out since 2001.
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    Michigan Supreme Court hears debate on minimum wage, sick leave laws
    At the Michigan Supreme Court on Wednesday, an attorney defending actions by Republican lawmakers to weaken citizen-initiated laws to raise the minimum wage and require paid sick leave was asked if he could explain why legislators did it. Attorney John Bursch said he couldn’t answer for certain, though he offered a theory: The GOP-led Legislature recognized that the measures, which had gathered enough signatures to be placed on the ballot last November, would lead to job losses. So they decided that the best outcome for all Michiganders ‒ not just those who signed ballot petitions ‒ was a compromise that limited wage and sick leave benefits as a way to save jobs. Bursch, representing House and Senate Republicans who weakened the proposals, was among several attorneys to argue Wednesday before the state’s high court. The seven justices are considering whether to issue an advisory opinion on the legality of the GOP maneuver: Republican lawmakers adopted the two progressive wage and sick leave proposals last September before the proposals could go to a statewide vote in November. Lawmakers then essentially gutted both measures in December’s lame-duck session, mostly along party-line votes. In the past, when the court has declined to issue opinions, it mostly was because the issues were not considered imminent nor important, said Justin Long, an associate law professor at Wayne State University Law School. “Here, all of the facts and arguments necessary for the Court to make a good decision are in final form, ready for analysis, and the issue will have a substantial effect on the Michigan economy one way or the other,” Long wrote in an email. “So at least the key ingredients for an advisory opinion are present. Of course, it’s always a subjective decision by the Justices to decide whether it makes sense for them to opine or not.”
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    Woman who escaped Nicaragua speaks with Local 4 after winning asylum case in Detroit
    A woman who embarked on a dangerous journey to escape her home country won her asylum case in Detroit. The 27-year-old woman from Nicaragua spoke with Local 4 about her path to asylum, using the alias "Elena." She was placed in several detention centers before she was sent to the Calhoun County Jail in Battle Creek to wait for an answer in her case. The Michigan Immigrant Rights Center in Ann Arbor worked on several cases. The organization also connected the women to resources. One of the universities was Wayne State's Law School. "I immediately saw this as a great opportunity to try to help as many people as possible, and that the students would be able to be a big part of that effort," said Sabrina Balgamwalla, the director of Wayne State's Asylum and Immigration Law Clinic. Balgamwalla received a call from the Michigan Immigrant Rights Center and told them she had students interested in taking on bond hearing cases. Five of her students worked on six cases. "We get photographs. We get articles, we get letters written by family members, and then we can sometimes translate them and then pass them along to the women at the jail so that they can include it with their asylum applications," she said. The student who fought for Elena's case was Rachel Lerman. "My lawyer, Rachel, told me it was going to be hard on top of all of my problems. The problems in my country are awful. What is happening there [Nicaragua] is the worst thing that can happen to another person. I feel that the journey and the jail stay was hard, but what is happening in my country is worse," said Elena. After waiting in jail for nearly five months, Elena was set free. She won her asylum case in Detroit. 
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    Juneteenth: Freedom's promise is still denied to thousands of blacks unable to make bail
    Matthew Larson, assistant professor of criminal justice, wrote a piece about Juneteenth (June 19) marking “the celebration of the de facto end of slavery in the United States.” (This article is republished from a June 19, 2018 edition of The Conversation). Larson points out, however, that for hundreds of thousands of African-Americans stuck in pretrial detention – accused but not convicted of a crime, and unable to leave because of bail – that promise remains unfulfilled. “While Juneteenth is a momentous day in U.S. history, it is important to appreciate that the civil rights and liberties promised to African-Americans have yet to be fully realized. As legal scholar Michelle Alexander forcefully explains, this is a consequence of Jim Crow laws and the proliferation of incarceration that began in the 1970s, including the increase of people placed in pretrial detention and other criminal justice policies. There are 2.3 million people currently incarcerated in American prisons and jails – including those not convicted of any crime. Black men comprise 40 percent of them, even though they represent just 13 percent of the U.S. population. Larson adds, “Juneteenth celebrates the freedom of black Americans and the long, hard road they were forced to traverse to gain that freedom. But as criminologists like me have maintained time and again, the U.S. criminal justice system remains biased, albeit implicitly, against them.”