Genetic testing, cancer risk, and Angelina Jolie’s choice

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Angelina Jolie’s New York Times op-ed announcing for the first time that she underwent a double mastectomy to reduce BRCA-related breast cancer risk was welcome news in several respects. She is very specific, for instance, regarding the exact estimation of her risk, the kind of detail you do not often see in news reports and other public testimony about BRCA.  (BRCA-related risk is highly variable: 45-90% for breast cancer, 10-60% for ovarian cancer.)

Jolie also mentions the high price-tag associated with just the test itself, a point that has been raised for some time, and a topic that will be addressed this summer as the Supreme Court decides whether to accept Myriad Genetics’ (the company that owns the patents to the BRCA1 and BRCA2 genes) argument for patent protection. And finally, Jolie observes that BRCA mutations explain just a small percentage of breast and ovarian cancer cases. What she does not say, but is worth pointing out, is that more than half of all breast cancer cases remain unexplained. As the organization Breast Cancer Action has often noted, we need to fight for true “prevention” of breast cancer, which would include a radical shift in the way we regulate toxic chemicals.

Jolie understands herself to be acting not just as a mother but also as a role model for other women. This would make sense if BRCA testing were relatively new. However, it is anything but—BRCA tests have been around since the mid-nineties, and mastectomies much longer than that. In fact, women have been electing to receive prophylactic mastectomies due to familial risk well before the BRCA genes were described by researchers and a test for mutations was developed. Yet in 2013, the choices for high-risk women are the same: surveillance, surgery, or cancer drug therapy. Placed in this historical context, the question should not be “Why aren’t more women getting tested and acting on that knowledge?” but rather, “Why are the interventions the same almost twenty years after the genetic test became commercially available?”

Although new ways for reducing BRCA risk have failed to materialize (even if the plastic surgery methods associated with breast reconstruction have improved dramatically), what has occurred over the last twenty years has been a subtle yet indelible shift in what “risk” means. Indeed, BRCA mutations can hardly be said to infer “risk” at all, since the interventions women undergo are the same, or in the case of double mastectomy, even more extreme than what many women with breast cancer actually undergo.

“Risk,” then, really means “disease” in the post-BRCA age—marked as it is by an ethical obligation to act on cancer risk even if that action increases risk in other ways (as in the case of BRCA related ovary removal and subsequent fatal heart disease risk that early surgical menopause can entail). This, too, is an age of the successful feminist argument that there is nothing “natural” to femininity (thus enabling the claim that one is rejecting conventional notions of beauty and gender by undergoing mastectomy and oophorectomy), and the creation of an entirely new citizen-patient: the “previvor.”

With the development of better breast reconstruction techniques, the conceptual shift to “risk” being something you act on as if you actually had breast cancer, and the emergence of a new discourse of the empowered “previvor,” it is hard to imagine how any woman with a BRCA mutation will have a choice in any meaningful sense of the term. Can living with BRCA risk ever be thought of as an informed, empowered course of action? Will we see new ways of ameliorating BRCA risk that do not entail major and risky operations? Breast cancer is indeed an epidemic. Yet epidemics, as Paula Treichler wrote, too often close off critical, theoretical discussion that is often needed in order to properly evaluate and contextualize developments in medicine and in the broader culture. All the more important, then, that we continue to understand BRCA testing and mastectomy, and the choice to undergo one or both. After all, the choice is constrained as much by culture as it is by biology.

Kelly E. Happe is Assistant Professor of Communication Studies and Women’s Studies at the University of Georgia. She is the author of The Material Gene: Gender, Race, and Heredity after the Human Genome Project (NYU Press, 2013).

Marjorie Heins wins 2013 Hugh Hefner First Amendment Award!

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NYU Press is proud to announce that Marjorie Heins has been chosen to receive the 2013 Hugh M. Hefner First Amendment Award in book publishing. She is being honored for her book, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge, a chronicle of the history, law and personal stories behind the struggle to recognize academic freedom as “a special concern of the First Amendment.”

Christie Hefner established the Hugh M. Hefner First Amendment Awards in 1979 “to honor individuals who have made significant contributions in the vital effort to protect and enhance First Amendment rights for Americans,” in the fields of journalism, government, book publishing and education. Find the full list of this year’s winners here.

A press reception with the winners, judges and special presenters will be held on May 22, 2013 at the Playboy Mansion where winners will receive a cash award of $5,000 and a commemorative plaque. (Awesome—way to go, Marjorie!)

A Death at Crooked Creek: Free chapter and giveaway

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Attention, lovers of mystery, history, and true crime dramas! 

There’s still time to enter our Goodreads book giveaway for A Death at Crooked Creek: The Case of the Cowboy, the Cigarmaker, and the Love Letter—and we’re giving away 3 *free* copies!  Enter now for a chance to win; the giveaway ends on May 29, 2013.

Today, we have an excerpt from the first chapter of A Death at Crooked Creek: “A Winter Journey Leads to an Inquest: 1879.” 

 

Chapter 1: A Winter Journey Leads to an Inquest: 1879 by NYU Press

Why restrict jury duty to citizens?

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—Andrew Guthrie Ferguson

[This article originally appeared in The Atlantic online. Read it here.]

A few weeks ago, the California Assembly passed legislation that for the first time would make non-citizens eligible for jury service. If passed by the State Senate, California would be the only state to decouple citizenship and jury duty.

A chorus of criticism has been raised over the proposed bill without thinking about the fundamental question it presents. Why do we limit jury service to citizens?

The answer does not lie in history. At the time of the framing of the United States Constitution, jury service was limited to property-owning white men–as, for that matter, were voting rights in most states. Recent immigrants who owned property could sit on juries, but other citizens (women and others without property) could not. Thus, as originally understood, citizenship did not define who could sit on a jury.

Nor is the answer that citizens possess some special civic knowledge. There are no educational requirements for jury service. No special “citizen training” classes. Qualification for federal jury service simply requires that the potential juror “be adequately proficient in English to satisfactorily complete the juror qualification form.” In an era where studies show that most Americans fail basic civic literacy tests (including the official government citizenship test), we can honestly wonder about this collective lack of civic knowledge. Thus, assuming that many non-citizens are equally knowledgeable (or ignorant) about American civics and law, knowledge cannot be the reason for preferring citizens.

Nor, is it about community representation. Juries, of course, have always acted as a community conscience. Community morals and judgments provide both the legitimacy for a jury verdict and a check on government power. The right to a criminal jury trial is a right to a local jury. Yet, including non-citizens on juries would not necessarily change that community dynamic. In fact, including non-citizen members of our community might provide a closer approximation of the actual community sentiment. After all, a lawful permanent resident of California (who has lived in the state for twenty years) might be much more representative of the community than a recent citizen moving from Alabama or New Hampshire.

So why has jury service been limited to citizens? Here are three good reasons.

Citizenship symbolizes and preserves self-government. In a democracy, citizens are the sovereigns and sovereigns have to govern themselves through institutions like the jury. This is a structural power – a reservation of political control to citizens. One cannot outsource the responsibility of self-government, including jury duty. Those who have been entrusted with the responsibility to govern must do the hard work of self-government.

Second, citizenship has come to define our political identity. For much of early American history, we denied full political rights to women and people of color. As a result, the battles for political equality have been framed in terms of citizenship. The Women’s Suffrage Movement explicitly linked jury service and voting in its push for political equality, knowing that just gaining the right to vote would not be enough for women to be considered full constitutional citizens. The Civil Rights Movement in the South began with a series of jury discrimination cases recognizing that jury participation symbolized a measure of constitutional equality. Those victories established that to be a full participant in the constitutional system, one had to identify as a citizen juror.

Finally, citizenship involves a legal and social relationship with the government – a granting of constitutional rights and an acceptance of civic responsibilities. American citizenship is a legal commitment to certain participatory values, including participation in juries. The badge of citizenship marks individuals as belonging to a national community that guarantees certain liberties and opportunity in exchange for democratic participation. As the Supreme Court stated in Powers v. Ohio, jury duty “affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law. Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.”

A shift to non-citizen jurors would alter this balance of sovereignty, identity, and the relationship between citizen and government. Of course, many non-citizens would make excellent jurors, just as many actual citizens make poor jurors, but the underlying legal relationships would be significantly affected. This change to non-citizens juries may come, as the history of the jury has always evolved with social norms, but such a change would restructure the current balance of rights and responsibilities in a way that Californians and others should weigh very carefully.

Most importantly, the debate over non-citizen jurors has resulted in new awareness that jury service matters. However the California legislature ultimately decides the issue, the controversy has highlighted a deep-felt sense that jury service goes to the heart of what it means to be an American citizen: It is not patriotism alone, but commitment to the participatory values of democracy. Next time you are asked to serve, wear your juror badge proudly.

Andrew Guthrie Ferguson is an assistant professor of law at the UDC David A. Clarke School of Law, and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press, 2013).

NYT Room for Debate: Sex education

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Over at the New York Times’ Room for Debate blog, a lively discussion on sex education—and at what age it should begin—is unfolding. We asked Sinikka Elliott, author of Not My Kid: What Parents Believe about the Sex Lives of Their Teenagers, to chime in on the topic. She shares her thoughts below.

I often heard during the course of my research into sex education that parents are ultimately responsible for teaching their children about sex. But I also heard from parents that sex is not an easy thing to talk about—their kids don’t want to hear it, parents themselves often don’t want to talk about it, and in having these conversations parents risk being labeled sexual deviants for their children’s knowledge about sex.

In fact, some of the parents I interviewed were reported to Child Protective Services (CPS) because people thought their children knew too much about sex. (In the state where I reside, one of the signs of child abuse is “exhibits sexual knowledge that is inconsistent with their age.”)

One couple I spoke with who tried to be open and honest with their daughter about sex was investigated by CPS after a member of their church overheard a family conversation that implied their daughter—who was 11 at the time—understood what sperm was. The congregant reported the couple to CPS believing that the only way an eleven-year-old girl could know about sperm was if she was being sexually abused.

Denise, a nurse, proudly told me that her 6-year-old grandson already knows the proper names for genitalia. Denise’s face fell, however, when she described how a kindergarten teacher reported her daughter to CPS for possible sexual abuse because Denise’s grandson used the words “penis” and “vagina” in class.

“My grandson would actually tell the boys, ‘You can’t go in the bathroom. There’s a girl in there and that girl has a vagina, not a penis, so you can’t go in the bathroom with her.’”

CPS mounted a full investigation into Denise’s daughter, eventually exonerating her, but the accusation has left Denise feeling bruised and uncertain.  If parents can’t teach their kids about bodies and sex, who can?

As the parents’ stories reveal, a climate of fear, suspicion, and taboo surrounds parents as they have, or contemplate having, conversations with their children about sex. Sexual images and messages are now commonplace in our culture, yet there’s still a lot of shame attached to talking openly and knowledgably about sex. Teaching sex in schools as a commonplace fact of life—and starting these lessons early—would not only equip young people with valuable information about their bodies but would also make family conversations about sex easier. Parents may ultimately be responsible for teaching their children about sex but they should be able to do so without fear of being labeled sexually deviant.

Sinikka Elliott is Assistant Professor of Sociology at North Carolina State University,  and author of Not My Kid: What Parents Believe about the Sex Lives of Their Teenagers (NYU Press, 2012).

Notes from Betsy…on Spring books

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Greetings from NYU Press Publicity! My Instagram account is flooded with images of cherry blossoms, dogs rolling in grass, and ballpark festivities. SPRING HAS SPRUNG! To celebrate the spring season, I thought it would be fun to catch up on a few of the big media hits so far. Some of the tantalizing bits of knowledge you will take away include: can jury duty really be enjoyable?; how does media spread?; why this country needs two presidents; what if the United Nations was based in Detroit?; living in New York City through one reporter’s eyes; is the United States really post-racial?; and exciting titles to look out for.

WHY JURY DUTY MATTERS

Author Andrew Guthrie Ferguson is on a quest to convince us that jury duty is fun, and at the very least, our most important civic duty apart from voting. Listen to his convincing interviews on WAMU’s “The Kojo Nmadi Show”; KPCC’s “Airtalk” and WYPR’s “Mid-Day.” The Baltimore Sun makes mention—and Greta Van Susteren knows a good thing when she sees one. Also, May is Juror Appreciation Month! See Andrew’s piece on The Atlantic’s website.

SPREADABLE MEDIA

The name Henry Jenkins will stop any media junkie, cos-play boy or girl, and Comi-con regular in their tracks. Find out what all the hype is about: Jenkins and co-author, Sam Ford, on KBOO-FM; Sam Ford’s article on WSJ.com’s “Speakeasy;” an interview with the authors on New Books in Journalism; and a shout-out on Mediabistro’s journalism & tech blog, 10,000 Words. Jenkins and his co-authors also made an appearance at SXSW!


TWO PRESIDENTS ARE BETTER THAN ONE

Two heads are better than one; good things come in pairs; and according to our author, two presidents would be better than one. Need some convincing? No problem! See author David Orentlicher’s interview with the Chicago Tribune; his appearance on C-SPAN’s “Book TV”; and his radio interviews with KPCC’s “Airtalk” and Wisconsin Public Radio’s “Joy Cardin Show.”


CAPITAL OF THE WORLD

Probably the coolest coverage so far for Capital of the World was the essay Foreign Policy commissioned from author Charlene Mires—they asked her to imagine if Detroit had won the bid to become the home of the United Nations, and how that would have affected the future of the city. Other coverage included a review in the Wall Street Journal; an interview on C-SPAN’s “Book TV”; a feature in PRI’s “The World” ; a spot in the New York Times‘ Bookshelf; and an hour with KERA’s “Think.”

HABITATS

New Yorkers are obsessed with where other New Yorkers live. In Habitats, New York Times writer, Constance Rosenblum gives readers that fly-on-the-wall experience in some of the most fabulous, wild, and unbelievable homes across the 5 boroughs. The New Republic reviewed the book and our sadistic history of real estate voyeurism, while NY1 raved about the collection here. And if you’re in Manhattan next Tuesday, 5/14, stop by the 92Y Tribeca at noon to hear Connie read from some of her favorite sections!

GHOSTS OF JIM CROW

Electing an African American president had many declaring that the United States had finally moved beyond race. F. Michael Higginbotham argues we still have a long way to go in his new book, Ghosts of Jim Crow. You can hear more of what he has to say in interviews with Oregon Public Radio; Dallas Public Radio; and Balitmore Public Radio.

Look out for the next round-up coming soon!  We have some exciting titles pubbing in the next few months including We Will Shoot Back, A Death at Crooked Creek, and Rebels at the Bar, so more fantastic coverage is surely on the way.

“I’m Black and I’m Gay”: The everydayness of Jason Collins

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—Mark Anthony Neal

As a lifetime New York Mets fan, I rarely need to be reminded that spring training signaled the beginning of a new baseball season. Yet, for a few years, I could have been reminded by the seemingly annual press conferences from Mets catcher Mike Piazza in which he announced to the world that he was not gay. That Piazza felt compelled to hold a press conference to announce such non-matters, speaks both to the proverbial stakes for male professional athletes (particularly in the so-called four “major” sports), and the absurdity of the national discourse regarding sexual identity.

There was no such press conference for Jason Collins, a twelve-year journey man in the National Basketball Association—just a Sports Illustrated cover story in which he admitted that he was “Black” and “Gay.” Indeed there was a mundane quality to Collins’ admission—it’s not like Collins is the first Black and Gay person to walk the earth. Perhaps, far more remarkable is that Collins has survived the last few seasons as a Black athlete who sits on the end of the bench, in a position that long served as the NBA’s quota program for a league that is still to visibly “Black” for some.

This is not to say that Collins’ “coming out”—a term that really just reproduces the very marginalization that homophobia constructs in the first place—was not brave and that the kudos that he’s received from Team Obama and high-profile colleagues like Kobe Bryant (only a few years removed from his own courtside use of a pejorative directed at Gays) and the always-already surreal Metta World Peace, were not thoughtful. It stands to reason, though, that President Obama will not be making a call to every Black man or women who will admit to a friend, family member, clergy leader or employer that he or she is gay—or more importantly, he won’t be calling those who will be shunned from the comforts of family and community because they did.

But what exactly are we really celebrating in highlighting the decision of one Black and Gay man to tell the world how he has lived everyday for much of his mature life?

As is too often the case in these matters, the attention that Jason Collins is getting is really about the need of our society to pat ourselves on the collective back for being open and tolerant enough to allow a veteran basketball player, close to the end of his career, to tell us that he is Black and Gay. In this regard, I’m not impressed. Nevada State Senator Keith Atkinson recently also admitted that he was “Black” and “Gay” to his legislative colleagues during a debate on Same-Sex marriage, which apparently doesn’t make us feel as good.

To be sure, Jason Collins represents an important moment in professional sport in the United States. As he symbolically raised his hand, hopefully he will find others willing to raise their hands alongside him and encourage a generation of younger athletes to be comfortable enough in their own skins to feel free to express whoever “they be.”  Until then I’m just waiting for the press conference or cover story that announces that such things no longer matter.

Mark Anthony Neal is Professor of African & African American Studies at Duke University. He is the author of several books, including Looking for Leroy: Illegible Black Masculinities (NYU Press, 2013), and the host of the weekly webcast Left of Black.

Book giveaways!

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It finally feels like spring! We’re celebrating the season by hosting Goodreads giveaways for two new titles from our spring catalog. Check ‘em out below, and enter to win a copy of one—or both!

A powerful examination of the portrayal of black men in popular culture

LOOKING FOR LEROY
Illegible Black Masculinities
by Mark Anthony Neal

Released April 22, 2013

“[N]o one but Neal would manage to produce a theory of black masculinity capable of explaining the smoothness of Luther Vandross, the cosmopolitan genius of Jay-Z, the enigma of Leroy from Fame, and the sheer brute force of Snoop from The Wire. Genius.“—Jack Halberstam, author of Gaga Feminism

2 copies available. Giveaway ends on May 10, 2013. Enter to win!

 

A creative reinvestigation of murder, insurance fraud, and a Supreme Court ruling

A DEATH AT CROOKED CREEK
The Case of the Cowboy, the Cigarmaker, and the Love Letter
by Marianne Wesson

Releases May 24, 2013

“Known for her legal thrillers, University of Colorado law professor Wesson employs her expertise to great effect in this exhaustive study… [A] true crime drama that’s well researched, easy to read, and oddly compelling.”
—Publishers Weekly

3 copies available. Giveaway ends on May 24, 2013. Enter to win!

Good luck, and spread the word!

Marathon bombers’ refugee roots shed light on trajectories

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Silvia Domínguez, author of Getting Ahead (NYU Press, 2010), recently appeared on the Huffington Post with an excellent piece on the refugee roots of the Boston Marathon bombers. An excerpt appears below.

Dzhokhar was eight years old and Tamerlan was 15 when they arrived in the U.S. Both brothers became involved in sports, attended a mosque on Prospect Street, and enrolled in Cambridge Rindge and Latin School — perhaps the most culturally accepting secondary school in the nation. In this environment, Dzhokhar thrived. Emigrating at a young age, he attended schools with the same friends he grew up with, gradually lost his accent, and became a well-liked and respected student. On the other hand, Tamerlan emigrated as a teenager, arguably the most difficult age of transition for adolescents. Although he became an excellent boxer according to his trainers in Lowell, he never lost his accent and his English was difficult to understand, opening himself up to discrimination.

Refugees are often from areas where conflict is historically embedded and marked in ideology and injustice. The Tsarnaev family emigrated from the Chechen diaspora in Kyrgzstan, a region Stalin deported the Chechens to in 1943. After the fall of the Berlin Wall in 1991, Chechens engaged in a battle for independence from Russia that led to the Tsarnaevs’ petition for refugee status in the early 2000s. While Dzhokhar was only a child during this strife, Tamerlan experienced that civil conflict as an adolescent, shaping his identity as participant in the conflict. Once in the U.S., Tamerlan could not find kinship with American youth who are naïve about civil armed struggles. As he posted on Facebook, he did not understand Americans and had no friends. Americans often assumed that they were Russian, forcing the brothers to clarify that they were actually Chechen. Being confused with the offender, Russia, may have caused young Dzhokhar’s curiosity about his Chechen heritage, but it likely enraged Tamerlan in a cumulative alienating manner.

Read the full post here.

Capital of the (Cyber)world

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The scope of Charlene Mires’s Capital of the World is huge. In tracking the race to find a home for the United Nations, the book travels across the United States, covering the major hometown boosters while also making unexpected (and often amusing) detours.

Appropriately, the book’s tour on the web has also been expansive: over the past month, bloggers across the net have been exploring the campaign with Mires, and have written about their experiences with the work. We’ve listed the writers who wrote about the book below. Check them out, and follow along the tour!

Monday, March 4, 2013 — A Bookish Affair (with an author guest post)
Tuesday, March 5, 2013 — Padre Steve
Tuesday, March 12, 2013 — Patricia’s Wisdom
Thursday, March 14, 2013 — Man of La Book
Monday, March 18, 2013 — BookNAround
Wednesday, March 20, 2013 — Suko’s Notebook
Friday, March 22, 2013 — Sophisticated Dorkiness
Monday, March 25, 2013 — Knowing the Difference
Tuesday, March 26, 2013 — Fifty Books Project
Wednesday, March 27, 2013 — The Relentless Reader
Thursday, March 28, 2013 — West Metro Mommy
Monday, April 1, 2013 — The Future American
Wednesday, April 3, 2013 — Lisa’s Yarns

Let us know your thoughts on the blog tour—or the book—in the comments section. We’d be delighted to hear them!

Misunderstanding Miranda: A Miranda warning would not endanger the Boston prosecution

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—David A. Harris

[This article originally appeared in the Pittsburgh Post Gazette. Read it here.]

Just hours after the second Boston bomber was taken alive, the government announced that it would not give the man Miranda warnings before questioning him. Instead, the Department of Justice said, the attacker would be questioned without warnings under the public safety exception.

The Obama administration’s interpretation of the public safety exception is suspect; its announcement that no Miranda rights would be given was transparently political, aimed at avoiding criticism from conservative quarters. Worst of all, the administration seemed to be telling the public that Miranda warnings are just petty rules—another instance of hyper-technical laws that get in the way of real justice. This is dead wrong, and it shows grave disrespect for the rule of law and the Constitution—the very things that make our country great.

Let’s start with a clear understanding of the Miranda warnings. Failing to give Miranda warnings does not interfere with the power of the police to make an arrest. Not giving the warnings does not affect the ability of the prosecution to try a suspect. In fact, not reading a suspect his Miranda warnings does not even violate the person’s rights.

The Supreme Court ruling in the Miranda case is actually quite specific: Warnings are required only if the police question a suspect while he is in custody and the district attorney wants to use the answers to prove guilt. That’s all.

If the Boston bombing suspect gets Miranda warnings and decides he wants to remain silent, won’t that destroy the case?

The simple answer is no—he will be prosecuted anyway and will very likely be found guilty, statements or not. Think of 1) the countless photos and videos, many of which show him with his brother and some of which reportedly show him leaving his backpack at the site of the second explosion moments before it occurred; 2) his statement of guilt made to a civilian during a carjacking, 3) the many officers who could testify they saw him at the shootout from which he escaped; and 4) any evidence police have seized from his home. In short, the evidence will be overwhelming; prosecutors won’t need a confession to convict him.

The idea that giving suspects Miranda warnings stops investigations cold and allows guilty criminals to go free is a myth, and it vastly underestimates the abilities of modern police officers to work successfully under the Miranda rules.

When police officers administer Miranda warnings, 85 percent of suspects talk to them anyway. For suspects with no criminal record, like the Boston bombing suspect, the number is 90 percent. Given what the warnings tell suspects—”anything you say will be used against you”—many people are shocked by this outcome. But it is human nature to talk, to explain, to avoid blame, and good police interrogators know how to take advantage of this. Miranda does not prevent them from getting the evidence they need.

In fact, the evidence in the Boston case is so great and the bomber’s guilt so certain that the suspect may wish to make statements—whether he gets Miranda warnings or not—for the purpose of avoiding the death penalty. The Miranda warnings won’t affect this.

What would happen if the suspect is questioned in custody without Miranda warnings and he makes statements of guilt?

The prosecution could not use those statements to prove his guilt, but it could still proceed with all the other evidence. And prosecutors could use answers given without Miranda warnings for purposes other than proving guilt. For example, they could still be used for intelligence purposes—to find other bombs or other people involved in the Boston plot or others. The statements also could still be used to prove the guilt of others involved under a conspiracy charge.

The government’s assertion of the public-safety exception to the Miranda rule bends that exception almost to the breaking point. The Supreme Court has said that Miranda doesn’t apply to police questioning that takes place in order to alleviate immediate, ongoing danger. But the authorities have already made clear that the Boston bad guys have been caught or killed and the danger is over. Perhaps the government might question the suspect about the existence of other explosives or plans, or whether he and his brother had other co-conspirators. But beyond those issues, the public-safety exception does not apply.

When our political leaders say that constitutional rights won’t be applied in pursuit of some greater good, they make our founding document sound like a collection of legal loopholes. They put us on the path that Ben Franklin warned us against when he wrote, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

At times like this, we need to stand strong with Boston—and with our own values. Anything less dishonors who we are.

David A. Harris is Distinguished Faculty Scholar and Professor of Law at the University of Pittsburgh School of Law. He is the author of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).

Words do matter in the immigration debate

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—Ediberto Román and Bobby Joe Bracy

[This post originally appeared on the Latinovations blog. Read it here.]

After decades of inaction, this week’s unveiling of the Senate’s “Gang of Eight” immigration proposal suggests that Congress may finally be prepared to reform our immigration system. It is of no surprise that this renewed vigor comes on the heels of a presidential election where an overwhelming majority of Hispanic voters rejected the Republican solution was self-deportation. Yet, despite this crucial and potentially transformative moment, Republican leaders, such as Senator John McCain, one of the Group of Eight, has continued to use of ‘illegal immigrant’ when addressing the subjects of reform. He and many other Republicans who oppose immigration reform continue to use the more provocative yet inaccurate term–“illegal alien”(a term still used by the federal immigration agency, ICE). Conservative Senator Jeff Sessions for his part derided the Gang of Eight’s efforts as “making nearly impossible for ICE officials to distinguish between ‘illegal immigrants’ eligible for legal status and those simply asserting they are amnesty eligible.”

Notwithstanding the insistence to label human beings as “illegal” merely because they have committed what under federal law is a misdemeanor, other important avenues of communication and education are beginning to change the heretofore tone of the debate. Just over a week ago the Associated Press (AP) came to a decision that has gone virtually unnoticed in legal and political circles. Yet the decision was profound. The AP “no longer sanctions the term ‘illegal immigrant’ or the use of ‘illegal’ to describe a person. Instead, it tells users that “illegal” should describe only an action, such as living in or immigrating to a country illegally.”

A week later, USA Today made a similar decision to refrain from using the term, concluding that: “the term illegal immigration is acceptable, but do not label people as illegal immigrants, except in direct quotes. Undocumented immigrant, undocumented worker and unauthorized immigrant are acceptable terms — depending on accuracy, clarity and context… Do not use illegal or illegals as a noun. It is considered pejorative by most immigrants.”

While Fox News subsequently accused the AP of trying to influence immigration debate, the fact is the AP and the USA Today decisions were sound on several fronts, not the least of which is the accurate use of the English language as well as the legal and social impact of a discrediting imprecise term such as “illegal immigrant.”

Legal scholars have long recognized the inappropriateness of the use of the term. University of California, at Davis, Dean Kevin Johnson, for instance, observes: The most damning terminology for noncitizens is “illegal alien…‘Illegal aliens’ is a pejorative term that implies criminality, thereby suggesting that the persons who fall in this category deserve punishment, not legal protection.” Johnson further notes, “The illegal alien label…suffers from inaccuracies and inadequacies at several levels. [In fact,] many nuances of immigration law make it extremely difficult to distinguish between an ‘illegal’ and a ‘legal’ alien.”

Leading linguists agree, and last year a group of 24 scholars criticized the Associated Press’ previous assertion that the term “illegal immigrant” was accurate and neutral. These experts noted: “This misleading construction of illegality is tied to the circulation of troublesome stereotypes about the migration status of different ethnoracial groups. Specifically, assessments of illegality are often associated with unreliable signs of one’s migration status, such as language, religion, and physical appearance. These presumptions lead not only to law enforcers’ regular misidentification of people’s migration status based on wrongful assumptions about ethnolinguistic markers, but also to the broader public stigmatization of those markers.”

As the leading law dictionary, Black’s makes clear, no person, including an alien, is “illegal.” The word “illegal” is an adjective, or “a word … typically serving as a modifier of a noun to denote a quality of the thing named.” Thus, no person, including an alien, is illegal. Accordingly, an alien is “a person resident in one country, but owing allegiance to another.” In other words, our laws regulate the legality of the “conduct” of persons, but do not attempt to classify human beings in such a manner. We do not, for instance, classify a seven year old that steals something as an “illegal child.” Such a label would not only be deemed absurd, but also morally bankrupt. Our laws have never gone as far as to make the persons involved “illegal.” The idea that a person might be “illegal” is thus not only inhumane; it is also grammatically inaccurate, as well as legally incoherent. There are simply no laws adequately governing the issue of “illegal personhood.” As Johnson points out, although “alien” appears repeatedly in the Immigration and Nationality Act, the term “illegal alien” is not once defined.

In sum, substances and other objects can be illegal, and conduct can be illegal—but a person cannot. As Nobel Laureate and Holocaust survivor Elie Wiesel aptly noted years ago, “No human being is illegal.”

The AP’s decision is couched in bedrock ethical and professional concerns about accuracy in reporting. As AP’s Kathleen Carroll explains…”Will the new guidance make it harder for writers? Perhaps just a bit at first. But while labels may be more facile, they are not accurate.”

Social justice and civil rights advocates have long fought similar battles over truth and accuracy, which is not an easy battle when facility makes ignorance so appealing. As the AP now calls for: Specify wherever possible how someone entered the country illegally and from where. Crossed the border? Overstayed a visa? What nationality?

In other words: do your homework, and describe the action or conduct that is illegal.

The decision is the only fit response to critics who dismiss this issue as “political correctness” or “censorship.” The aim evidently was not to “censor” ideas or speech, but to be critical of terms that bury a great deal of important information. In almost any context, these questions are not only significant for reporting, but legally significant. People’s rights are in the balance. As a federal court recently observed in U.S. v. Cruz-Padilla, where the court held that the defendant was entitled to a new trial because the prosecution relied on the term “illegal alien” in their closing arguments in front of a jury. Citing the Supreme Court’s earlier decisions (holding that the Constitution’s “due process” clause prohibits the use of “racially biased prosecutorial arguments”), the Cruz-Padilla Court characterized the “improper” use of the term “illegal alien” as a “foul.”

Law and psychology experts likewise have long recognized, markers or labels, especially politically loaded negative labels, have the ability to shape public policy and laws. Such labels help shape what is described as implicit bias, or mental shortcuts that allow us to make negative associations of groups that are undeserving of such negative categorizations. Stereotypes, for instance, allow society to use mental shortcuts, or schema, to associate individuals with a discrediting quality. These discrediting qualities in turn make it easier for policy makers to enact laws that seek to protect us from those with such qualities.

Sadly, history is replete with such efforts. For instance, one of the first and easiest ways for the Third Reich to enact its laws and policies was to stigmatize the Jewish community with similar discrediting qualities. These efforts paved the way to pass laws and enact horrific policies to allegedly protect society from these dangerous contagions. The use of the label illegal alien has a similar social effect. It has labeled a group of persons, who under our criminal and immigration laws have committed typically nothing more than a misdemeanor, as a group of hardened criminals that we should fear and exclude. As more and more Americans are realizing, and opinion polls reflect such realization, this label conflicts with reality.

With the recent announcements by the AP and the USA Today, we hopefully begin a path of engaging in narratives based on accurate depictions, and not stigmatizing labels. No longer is it ethical or responsible to use the discrediting marker “an illegal human being”—if indeed it ever was.

Ediberto Román is a nationally-acclaimed scholar and an award-winning educator with broad teaching interests and an extensive scholarship portfolio. He is the author of several books, including Citizenship and Its Exclusions: Classical, Constitutional, and Critical Race Perspectives (NYU Press, 2010) and Those Damn Immigrants: America’s Hysteria Over Immigration (NYU Press, 2013).

Bobby Joe Bracy is a law student at Florida International University and an immigrant rights advocate. He is currently a research assistant for Ediberto Román, and the President of the National Lawyers Guild at FIU Law.