Dissent and the 2016 Election

—Ralph Young

There have been many times of crisis throughout American history when some citizens completely lose faith in the political process. Invariably such times lead to a rise of uncompromising radicals on the fringes of the body politic who eschew compromise in favor of a fundamental overhaul of what they see as a defunct system. One thinks of the Know-Nothings in the 1850s desperately fighting to stem the tide of Irish immigration which they feared would destroy the Protestant fabric of this nation, or the Populist Party of the 1890s who believed neither of the major parties were willing to address their grievances, or the rise of radical demagogues on both right and left during the Great Depression when it seemed to many that capitalism itself had failed, or was at best on the ropes, who denounced everything from the New Deal to Wall Street, from big business to communism. Some hated Franklin Delano Roosevelt; some hated the “economic royalists.”

What we are experiencing in the second decade of the twenty-first century is a replay of this historical phenomenon. As we approach the 2016 election there are those on the right who deplore what they see as creeping European style socialism on the part of a government that has abandoned laissez faire capitalism in favor of regulatory control over business and finance, a government that has abandoned the rugged individualism that they believe (falsely) made this country great. And on the left we see progressives who are highly distraught that the Democratic Party has turned its back on democracy and dances to the tune of business interests just as much as the Republicans. Thus we have outsiders challenging the establishment, on both right and left, who, believing that bipartisanship and compromise is weakness, are tapping into a vein of deep-seated discontent. Many Americans are obsessed by a nagging fear that the United States is in decline and will soon lose its special place in the world. And this helps explain the unexpected popularity in the primary season of Donald Trump and Ben Carson on the right and Bernie Sanders on the left.

Registered Republicans want anyone, even candidates as unqualified as Trump and Carson, who will oppose the Washington establishment, they want an outsider, a novitiate in politics, precisely because they are not politicians, in fact are completely ignorant of how politics works. And large numbers of Democrats, fed up with the coziness of Democratic politicians with Wall Street and believing that the United States is no longer a democracy, but an oligarchy, are turning to socialist Bernie Sanders as the only hope to return the United States to its democratic roots. “Isn’t it strange,” Sanders’ forerunner and hero Eugene V. Debs said during his trial for sedition in 1918, “that we Socialists stand almost alone today in upholding and defending the Constitution of the United States?” Sanders is taking up Debs’s message and it resonates deeply with his supporters. Whether they are outsiders, or demagogues, or opponents of business as usual, hardnosed individuals from Huey Long to George Wallace, Father Coughlin to Donald Trump, all appeal to the populist impulse. And all are as American as Apple Pie.

Ralph Young is Professor of History at Temple University. He is the author of Dissent in America: The Voices That Shaped a Nation, a compilation of primary documents of 400 years of American dissenters, and Dissent: The History of an American Idea (NYU Press, 2015).

The Refugee Dilemma and the Broader Immigration Debate

—Shoba Sivaprasad Wadhia

Last week, the New Yorker ran a heartbreaking piece titled The Refugee Dilemma sharing the story of Nelson Kargbo, a former child story from Sierra Leone who upon entering in the United States as a refugee endured a series of joys that included his role as a father and sorrows that included a lengthy term in prison and in solitary confinement, which according to this psychiatrist, worsened a predisposition to psychosis. The story of Kargbo tells a larger story about the complexity of the U.S. immigration system and the real impact of immigration law and enforcement on people who have fled extraordinary conditions before arriving to the United States.

To arrive in the United States as a refugee like Kargbo and his family is no simple task. Refugees include people who have been persecuted or face persecution in their home country because of race, religion, nationality, political opinion or membership in a particular social group. While the politics of refugee resettlement are volatile in the wake of the Syrian refugee crisis and the anti-Muslim sentiment that has emerged after bloodshed around the world and inside the United States, the reality is that refugees are  the most rigorously screened immigrant populations in the United States.

As Karbo did, refugees apply for permanent residency (a green card) one year after arrival — after five years, refugees may apply for United States citizenship. Importantly, having a green card does not provide total security. The Department of Homeland Security or DHS has the authority to arrest, detain and deport a wide range of noncitizens including those who fail to file a change of address card on time; commit certain crimes; and overstay their visas to name a few.

The method by which Kargbo moved from the criminal system into the immigration system after ICE (one enforcement arm in DHS) placed a “hold” on him is a recurring theme in immigration enforcement. The question about whether local law enforcement should cooperate with ICE has been a controversial as it implicates public safety at the local level and undercuts trust with immigrant communities.

Kargbo was placed in a courtroom process known as “removal proceedings” which itself is an adversarial hearing at which an ICE attorney serves as the prosecutor and where the noncitizen acts as the “respondent” or defendant before an immigration judge who is part of the Department of Justice’s Executive Office for Immigration Review. At the removal hearing, noncitizens respond to the immigration charges against them and apply for qualifying forms of relief such as asylum, cancellation of removal and adjustment of status. As highlighted by Kargbo’s story, limited relief is available for people who have committed certain crimes in part because Congress has removed much of the discretion judges once held to factor in individual equities.

Importantly, most people are deported (removed) do not have a removal proceeding or opportunity to tell their story to an immigration judge.  The law contains expedited procedures for people who arrive in the United States without papers or false papers; those living in the United States without a green card who have committed certain crimes and those who reentered the United States have a removal order. In fiscal year 2013, more than 75% of removals were executed through one of these “speed deportation” programs.

Kargbo’s journey also highlights the limits of the U.S. immigration system. Many noncitizens are forced to navigate the immigration removal process without an attorney because there is generally no court-appointed counsel. One has to wonder whether Kargbo would have received the protection he was legally eligible for without hours and expertise from his pro bono attorneys and the specialists who were able to document his mental health and prospects for care in Sierra Leone. The restrictions on court appointed counsel are universal which means that young people, individuals with mental health complications, asylum seekers with significant language and cultural barriers and other vulnerable populations have no right to court appointed counsel.

Importantly, DHS has enormous power to decide who to arrest, detain and deport. With 11.3 million people living in the United States without authorization and thousands more individuals like Kargbo charged with removal as a green card holder, DHS must manage its enforcement wisely. Enter in prosecutorial discretion. When prosecutorial discretion is exercised favorably, DHS has made a choice to limit or refrain from enforcing the immigration law against a person. This discretion has functioned in the immigration system for many years and is crucial because the agency has the resources to deport less than 4% of the millions eligible for removal. Beyond the economics are the humanitarian reasons behind prosecutorial discretion- young people, those with serious medical conditions and those with strong family ties in the United States are among the kinds of people who have been granted prosecutorial discretion historically. A prosecutorial discretion grant is a temporary reprieve at best and leaves the person in an immigration purgatory as opposed to a more secure status like lawful permanent residency.  While Kargbo received a semi-secure form of protection under the United Nations Convention Against Torture, his story leaves the discussion door open for the role of prosecutorial discretion in the scores of cases where formal protection under the law is unavailable. DHS can and should use prosecutorial discretion to protect individuals with compelling equities and imperfect histories.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and the Director of the Center for Immigrants’ Rights at Pennsylvania State University Dickinson School of Law. Previously, Wadhia was Deputy Director for Legal Affairs at the National Immigration Forum and an associate with Maggio Kattar P.C., both in Washington, D.C. She is the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015).

Zach Anderson, Statutory Rape Laws, and the History of Age

—Nicholas L. Syrett

In October of this year, thanks in part to a petition that circulated on change.org, stories that went viral on Twitter, Facebook, and Reddit, and a good deal of media attention, an Indiana man named Zach Anderson was removed from the sex offender registry in two states. He had originally been added after having been convicted of statutory rape.

The story, briefly, is this: last year Anderson met a girl on the app “Hot or Not.” He drove from his home in Elkhart, Indiana to her home in Niles, Michigan, about twenty-two miles away, where they had sex. Anderson was nineteen at the time and the girl said that she was seventeen and had registered in the “adults” section of the app. It turns out she was only fourteen and the age of consent in Michigan is sixteen, meaning that Anderson had unknowingly committed statutory rape.

After being arrested, Anderson pled guilty to a charge of fourth-degree criminal sexual assault and spent seventy-five days in jail. Under the terms of his five-year probation, he was forbidden from using the Internet, owning a smartphone, or having any contact with anyone under the age of seventeen (save immediate family). He was also placed on the sex offender registry in Indiana and Michigan until 2040.

The case attracted as much attention and outrage as it did – aside from the fact that his parents were savvy users of the very Internet from which their son was banned – because the girl admitted to lying about her age, she and her parents opposed the prosecution, and because the judge in the original sentencing was intransigent in handing down the mandated punishment stipulated by the statute. The case provoked broader discussions about teenage sexuality in the age of the Internet and the long-term repercussions of statutory rape laws that brand teenagers as sex offenders.

What received less attention, however much it was lurking just beneath the surface of these conversations, was the function of age itself in what happened to Zach Anderson and his youthful sexual partner. While the minor girl was only fourteen, either she looked like she could be seventeen or Anderson simply willed himself to believe that this was so. Michigan’s penal code stipulates that someone is guilty of “criminal conduct in the fourth degree” if the victim “is at least 13 years of age but less than 16 years of age, and the actor is 5 or more years older than that other person.”

This age-gap exception to statutory rape law is meant to protect the older of two sexually active teenagers from prosecution; it is a result of late twentieth-century revisions to rape laws that came in the wake of the sexual revolution, after which high school students were more likely to have sex than when the original laws were passed in the late nineteenth and early twentieth centuries. But Anderson was not helped by this part of the law, despite still being a teenager, because he was nineteen. Had Anderson only been eighteen years old, one year younger than he was, he could not have been charged under the law, because the two would only have been separated by four years, not five. Had his birthday been perhaps a little later in the year or hers a little sooner, there would not have been a crime.

Age is a blunt and sometimes arbitrary legal instrument. Legal age cannot accommodate those who lie or who do not “look” their age. In a time when all of our ages are precise, fixed, and documented, Anderson had no wiggle room. He was a nineteen-year-old adult and she was a fourteen-year-old child; despite all the ambiguity of their meeting, in his first trial there had simply been no way around this. Age-based laws have also offered little meaningful protection to actual victims of sexual violence like, for instance, the countless children abused by Catholic priests.

This reliance on age has a history. Only about a hundred years ago Americans were completing the process of incorporating age into their criminal and civil law, as well as their collective consciousness. Since that time, they have increasingly used it as if it were a simple, incontrovertible, biological fact. In one way that is undeniable, but as the case of Zach Anderson also demonstrates, age itself does not fully accommodate or contain all aspects of human beings’ development, capabilities, and responsibilities. It is a legal shorthand that all too often—and statutory rape law is only one example—perpetuates limitations and enacts violence when it is meant to protect or enable. Further, at a moment when the age one purports to be online can have little relation to one’s actual age, and when numerous websites (not just Hot or Not) do little to verify age, we have entered a new era in the malleability of age itself.

While Zach Anderson’s story has a (relatively) happy ending—in the form of his revised sentence—many other young men remain in jail and on sex offender registries because their age at the time of their sexual encounters placed them there.

Nicholas L. Syrett is an associate professor of history at the University of Northern Colorado, the coeditor (with Corinne T. Field) of Age in America: The Colonial Era to the Present (NYU Press, 2015), and author of The Company He Keeps: A History of White College Fraternities (2009) and the forthcoming American Child Bride: A History of Minors and Marriage in the United States.

A Response to Amber Scorah: Learning from Parents and Child Care Providers to Create Better Policies

Palley_Shdaimah—Elizabeth Palley & Corey Shdaimah

Amber Scorah’s loss of her son Karl is tragic. Leaving a young child in daycare can be hard for any parent. Scorah’s story illustrates why this decision is so much harder in the United States for two reasons. First, unlike in most other countries, many US parents who prefer to care for their own infants do not have the financial and societal support to do so. Second, we do not treat early child care and education or the people who provide it as the valuable service that it is.

Despite hardships, most parents and providers work hard to find and deliver the best care for young children. What happened to Karl is rare. Most children survive and those in high quality care thrive. That does not make the decisions that parents of young children face any easier.

Some criticized Scorah for returning to work and questioned how she could blame larger societal pressures on her own “poor” choice. The factors that shaped Scorah’s decision, however, were not only individual but also societal. The very real pressures that she and her family experienced, including a need for health insurance and salary, compelled her to leave Karl in care. As Scorah noted, we live in a society that values paid employment over caring responsibilities and often leaves little space for parents to stay with their children when they are the most vulnerable. Though parents should have choices to stay with their children until they are less vulnerable, our workplaces and our government have not provided such choices for most Americans. We are anomalous in the economically developed world, where most countries have some policy that protect parents’ employment and even provide some form of salary or insurance that allows parents to care for their own children or assists them in securing affordable, quality care.

While Scorah indicated that she does not necessarily hold the provider responsible, she does implicate child care providers as overburdened, insufficiently trained, and callous to the needs of their charges. In our discussions with child care providers across New York State, we have met many center based directors and family providers who view the children in their care (often for the majority of their waking hours) as a sacred charge. Their interests mirror those of the parents whose children they care for. They want more training, better pay to allow them to hire and retain a stable and sufficient workforce, and the best equipment and curriculums. Karl seemed to be in distress and though a child care worker noticed and expressed concern, no one followed up. Karl was also left on his stomach. These are both issues where better training might have prevented Karl’s death, and they raise the possibility of regulatory policy responses. In our research, however, we have found that regulation in response to rare tragedies often makes for bad policy that burdens providers without always resulting in substantive improvements. In any contemplated policy change, policymakers and advocates must consider the voices of parents and providers, whose input will lead to better policy.

This blog post was contributed by Elizabeth Palley and Corey Shdaimah, the authors of In Our Hands: The Struggle for U.S. Child Care Policy (NYU Press, 2014).

The Right to Be Forgotten

—Meg Leta Jones

“Worse than Orwell” is a pretty serious insult in the privacy policy arena, but that is the way the new United Nations rapporteur on privacy, Joseph Cannataci, expressed his dismay with British (not American) surveillance practices and weak data protection. As reported in the Guardian, Cannataci is particularly upset about the use of CCTV systems, which may be because he doesn’t use Facebook or Twitter.

His dig brings the UN into a conversation it has not been relevant to for some time. In 1968, on the 20th anniversary of the Universal Declaration of Human Rights, the International Conference on Human Rights in Teheran addressed the tyranny of computers. UN General Assembly Resolution 2450 (XXIII) specifically directs study into the problem of “the uses of electronics which may affect the rights of the person and the limits which should be placed on such uses in a democratic society” two years before the German state of Hesse passed the first data protection law. Even still the UN has not been considered a major player in data protection or privacy issues.

The UN Human Rights Council’s mandate to nominate a Special Rapporteur on the right to privacy touches on two of the most pressing technology policy issues of this decade: who should be in charge and whose rules should apply? As platforms like Google and Facebook make internal policies to address hate speech and revenge porn, questions about the role of law in digital content disputes have introduced another layer of complexity. Should users, platforms, local authorities, national government, or global entities make these rules? How should rulemaking on technology issues occur in each? Do we even need new rules?

The answer to the first question, regarding who should be in charge, dictates a level of homogeneity for the second. If we all need to have the same rules in a global information system, how can radically different governments and legal systems get on the same page when democracies as similar as those in America and Europe can’t seem to agree? If you think that national legal systems should make their own rules, when do users and companies outside those nations have to adhere to those rules and why?

These are the challenges currently plaguing with the development and refinement of the right to be forgotten. Not only do we have to determine whether and under what circumstances individuals should be able to edit their digital pasts, we must also decide whether and how to enforce other determinations on the same subject. In 1988, a General Comment from the Human Rights Committee on Article 17 (the right to privacy) in the 1966 Covenant on Civil & Political Rights explains that when “files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to request rectification or elimination.”

It will be interesting to see how the UN enters this global debate and navigates issues of human rights and pluralism in the Digital Age, particularly with Cannataci’s candor and apparent distaste for heavily relied upon American technologies.

Meg Leta Jones is an assistant professor in Georgetown University’s Communication, Culture & Technology department where she researches and teaches in the area of technology law and policy. Her book, Ctrl+Z: The Right to be Forgotten, will be published in the spring of 2016 by NYU Press.

Comment forums reveal GOP dissatisfaction

—Karen S. Hoffman

[This post is part of the 2016 election series, curated by Victoria A. Farrar-Myers and Justin S. Vaughn, co-editors of Controlling the Message.]

Since the 2012 election cycle the role of digital politics continues to evolve. Now the story is all about social media: Facebook, Twitter, Instagram, Pinterest, and LinkedIn are all venues for candidates to communicate with voters. (All declared, and soon to be declared, candidates have Facebook and Twitter accounts.) Hillary Clinton leads on Twitter with over 3.7 million followers. Donald Trump is not far behind with just over 3 million. Rand Paul has the most “likes” on Facebook with over 2 million. There is good reason for the candidates to use social media tools. Pew reports that in 2014, 71% of adults online use Facebook. Sixty-five percent of those share, post, and comment at least sometimes on Facebook. And almost one-third of those post and comment about the news on Facebook. Data on Millennials is even more striking. According to Pew, Facebook is their main source for news about government and politics.

Social media has also impacted the way that citizens participate in political debate. At the time of my analysis of the 2012 presidential election, the main space for people to join an online debate about political issues was the comment forum that sits below individual articles on many news sites. While the democratizing effect of this type of public debate was celebrated, the substance of the discourse was also criticized as rude and vulgar. Some believed that the language on such forums represented only the most extreme and polemic views, undermining public discourse altogether. I disputed this position in my analysis of 2012 comment forum speech leading up to the presidential election, demonstrating that the substance of most comment forum speech was, in fact, fairly similar to elite discourse about the presidential election. If there was a problem with incivility during the 2012 election cycle, the problem existed far beyond citizen comment forums.

Heading into the 2016 presidential cycle, social media has also changed the nature of comment forums. Due to the tremendous increase in social media users, as well as a desire to improve the civility of comments, many news sources either require contributors to sign in through an existing social media account, or have moved public discussion to social media sites altogether. For instance, in 2014, Huffington Post banned anonymous comments and required contributors to sign in through a social media account to ensure that their comments were attached to a real name (no more “sukonthis,” “libs_r_trouble,” or “mancreatedgod”). CNN removed its comment forums altogether at the end of 2014, opting to host discussion via its Facebook and Twitter platforms. Fox News is an interesting exception. During the months leading up to the 2012 election, Fox News disabled its comment function completely, but since the election, has brought back the comment forum for some articles. In general, all news sites now have Facebook accounts, whether or not they have retained the comment forum function on their official news sites.

So, has the move to Facebook altered the substance of online public discourse? At this stage, it is difficult to compare current Facebook discussions with my original analysis. The 2012 data came from comments generated in the final months of the general election cycle, while we are barely into the primary season for 2016. Discussion during a primary season is likely qualitatively different from discussion during a general election, when internal party disagreement decreases. Keeping in mind that this is the primary stage, with most of the cycle still ahead us, two things stand out in comment forums. First, the changes in comment forums rules and venues have not changed the discourse. Second, conservative commenters are really angry at the Republican establishment.

First, language has not changed much as it moves to social media. Comments are still very polarized, routinely rude, and often tied to policy issues, very loosely defined, which is what I found in my first analysis. The one difference is not the speech, but the more polarized discussion spaces. As people rely on social media for their news, they are exposed to fewer perspectives, because even more than before, people see the news they want to see. It is also still true that social media comments on the 2016 presidential race still track fairly closely with elite discourse, which is similar to my findings in 2012. Because the rules now make it harder (although not impossible) to post anonymously, it is increasingly difficult to dismiss comment forums as the ravings of extremists and trolls who do not represent real citizens’ views. Further, as Pew reports, “For most politically active SNS users, social networking sites are not a separate realm of political activity. They are frequently active in other aspects of civic life.” While we might want to ignore this discourse, the people posting on comment forums are likely to be a factor in the presidential election.

Second, it is abundantly clear that there is discontent amongst the conservatives represented on comment forums. Everyone knows that liberals and conservatives are polarized, but the division within the Republican Party is extremely evident online, as well. Conservatives who post on these forums are very upset with the Republican establishment. They believe that their causes have faced nothing but losses – losses that are the fault of Republicans, such as a majority Republican Congress that has not delivered results (in their minds) and two significant defeats from a presumably conservative Supreme Court (on healthcare and gay marriage.) Typical posts on the subject are as follows:

“Why [have] the Republicans…done NOTHING since they won a landslide victory in both houses???????????????”

“I have not missed a presidential vote since Reagan in 1980. I’m so very close to sitting this next one out. The candidate better be an uncompromised Constitutionalist or I’m out.”

“…Thus far, none of the elected Republicans have shown any backbone at all or done what they promised they would do. We still have Obamacare, it’s not defunded, or removed. We still have a budget that only serves special interests. We have the rights of Christians, gun owners, and the constitution under attack. Can ANY of YOU remember that you are elected to protect the Constitution?…”

The fury fairly leaps off the page on these forums and it is clear that at this point in the election cycle they are not at all interested in candidates who can build coalitions and consensus. They want a fighter who will defeat the opposition, not work with them.

Enter Donald Trump. Many elites scoff at Trump’s bombastic language, fairly criticizing its flaws in fact and tone. They are also surprised (and sometimes worried) at the support he has received thus far. Based on comment forum discourse, however, it is not surprising at all. The attraction of Trump is not his mastery of policy issues – it is his uncompromising, “take no prisoners” approach to our political problems. For conservatives who feel the establishment wing achieves nothing by bargaining and negotiating in the political process, his rhetoric is music to their ears. In the words of commenters,

“These main stream Republicans are running scared. The are basically no different than the democrats. Spineless. Crank it up Mr. Trump!”

“The republicans bashing trump are weak. And jealous of him. These republicans are the same ones meander [sic] with the dems behind close [sic] doors.”

“I want Ted Cruz, Carly Fiornia and other candidates – including Donald Trump included in the upcoming debates. No more shoving some weak kneed GOP candidate who will lose (again) to the Liberal Progressives who have taken over the Democrat party. If FOX can’t accomplish this simple task, why should we TRUST FOX NEWS anymore?”

There is currently great support for Trump’s candidacy. Of the first 100 comments on a Fox News Facebook post about Trump, 92 expressed support. This is typical for conservative forums where support for Trump currently in the majority, if not a supermajority. A tally of the comments on a CNN Facebook post about Anderson Cooper’s interview with Trump showed less support, only 24 of the first 100 comments were supportive (which is not insignificant, given CNN’s position in the media’s mainstream). Based on a reading of the first 100 comments of four CNN Facebook pieces about presidential candidates, approximately 20% support Trump. Of course, today’s frontrunners may be forgotten in a few months (or even weeks), but the anger at establishment Republicans is the force driving support for Trump and will likely continue to be a factor in the race. Trump may not be the ultimate vehicle for this element of the Republican Party, but they want a candidate who is a fighter and not interested in bargaining and compromise.

Viewed individually, comment forum posts do not provide much insight on public opinion and they mostly serve to alarm everyone about the decline of civilized discourse. If you read enough of this speech, however, overall trends emerge. In the aggregate, comment forums are particularly useful in identifying more visceral aspects of opinion. The substance of this language is similar to elite discourse, but public comments tap into an overall mood.

Every week is a lifetime in a political campaign and it is not likely that Trump’s appeal can survive the entire primary cycle. The details of his various policy pronouncements are conveniently vague, and his bold statements will not be as impressive when subjected to close scrutiny. The anger and division within the Republican Party will remain, however, and Republican candidates will have the unenviable task of placating a very active wing of the Republican Party that is not in the mood for compromise and wants nothing to do with Establishment Republicans. I would not be surprised if many Republican candidates are currently hearing this message loud and clear (which is why many of them are hesitant to simply denounce Trump) and will continue to incorporate plenty of “fighting” words in their discourse. It is telling that Scott Walker’s speech declaring his candidacy did not tout a record of building consensus and getting things done, but rather that he could fight and win.

By the time the general election rolls around, this rebellion could subside as Republicans close ranks against the Democratic candidate, but the gist of the current comment forum language is that they erred in “settling” for Mitt Romney in 2012 and are not going to make that mistake again.

Karen S. Hoffman is Director of Undergraduate Studies and Visiting Assistant Professor in the Department of Political Science at Marquette University. She is the author of Popular Leadership in the Presidency: Origins and Practice. She has also published articles on the presidency, presidential rhetoric, and political communication in Rhetoric & Public Affairs and Congress and the Presidency. Her essay on comment forum speech appears in Controlling the Message: New Media in American Political Campaigns (NYU Press, 2015).

Controlling the message

—Victoria A. Farrar-Myers and Justin S. Vaughn

It is that time of the election cycle again, when presidential campaigns are gearing up and preparing for primary contests and, for a select few, general election races. As the would-be presidents seek to turn their electoral dreams into action, they are hiring staff, establishing PACs, and wooing donors. In addition, as many hopeful candidates have done in recent elections, they are building social media management teams, whose sole job it is to shape the candidate’s brand, leverage their political platform, and control ‘the message.’

In our recent volume, Controlling the Message: New Media in American Political Campaigns, we collected more than a dozen essays that draw on real-time data collected during the 2012 election cycle to analyze how the new politics of social media affect, and are affected by, political campaigns. As the 2016 elections approach, we plan to bring you a series of blog posts from authors of those essays that link this scholarly knowledge to ongoing developments in the world of politics.

The excerpt that follows is from the first of these pieces. Authored by Karen Hoffman of Marquette University, it examines the political rhetoric of comment forums found at online media sites. Professor Hoffman shows that the dynamics of comment forum rhetoric so far in this election cycle continue to demonstrate the characteristics she wrote about in Controlling the Message. Further, she makes key observations about what this rhetoric tells us about conservative Republicans in the current election cycle.

So, has the move to Facebook altered the substance of online public discourse? At this stage, it is difficult to compare current Facebook discussions with my original analysis. The 2012 data came from comments generated in the final months of the general election cycle, while we are barely into the primary season for 2016. Discussion during a primary season is likely qualitatively different from discussion during a general election, when internal party disagreement decreases. Keeping in mind that this is the primary stage, with most of the cycle still ahead us, two things stand out in comment forums. First, the changes in comment forums rules and venues have not changed the discourse. Second, conservative commenters are really angry at the Republican establishment…

Read the whole essay here, and follow the series on the NYU Press blog.

Victoria A. Farrar-Myers is Senior Fellow and Director of the Tower Scholars Program in the John Goodwin Tower Center for Political Studies at Southern Methodist UniversityJustin S. Vaughn is Associate Professor of Political Science at Boise State University. They are co-editors of Controlling the Message: New Media in American Political Campaigns (NYU Press, 2015).

Book notes: Beyond Deportation

—Shoba Sivaprasad Wadhia

“Prosecutorial discretion” refers to a decision made by an agency (in this case, the Department of Homeland Security) about whether or not to enforce the immigration laws against a person or group of persons. A prosecutorial discretion grant is significant because it functions as a temporary form of protection from deportation even though the immigration “status” conferred is tenuous.

wadhia frontA prosecutorial discretion grant is also important to the agency because it allows the agency to use its limited resources to pursue true enforcement priorities and also injects compassion into an otherwise complex and broken immigration ­system. Beyond Deportation reveals just how much and for how long prosecutorial discretion in immigration law has been grounded on compassion.

The visibility of prosecutorial discretion has increased in such dramatic ways that it becomes hard to imagine a time when prosecutorial discretion fell outside the popular immigration vocabulary. Its popularity peaked in June 2012 when President Barack Obama announced a policy termed DACA, or Deferred Action for Childhood Arrivals. DACA is a form of prosecutorial discretion in immigration law and has allowed thousands of young people to work, study, and drive in the United States with dignity and without the constant fear of arrest and possible deportation.

Prosecutorial discretion became even more popular after November 20, 2014 when President Obama announced a series of executive actions on immi­gration. These actions include an expansion of the DACA program and the establishment of a new deferred action program for qualifying parents of U.S. citizens and lawful permanent residents in cases where the parents have resided in the United States for at least five years. These most recent deferred action programs are on hold because of litigation by 25 states and the state of Texas against the federal government challenging the legality of these programs. Along with these “on-hold” deferred action programs, the Administration published a new priorities memo entitled “Policies for Apprehen­sion, Detention, and Removal of Undocumented Immigrants.” The priorities memo is operational today and in six pages attempts to spell out the Administration’s priorities for removal and a refined prosecutorial discretion policy.

One of the chapters in Beyond Deportation discusses the immigration case of John Lennon and the efforts undertaken by his attorney, Leon Wildes, to encourage the immigra­tion agency to publish its policies about prosecutorial discretion. The Lennon case is significant because it triggered the publication of the immigration agency’s first guidance on “deferred action,” a form of prosecutorial discretion that has been used as a remedy for individu­als facing compelling circumstances for many years and was showcased most recently with the President’s executive actions. The book offers context to this case by providing a detailed history of “deferred action” and examples of how it has been applied to both individuals and special populations, such as vic­tims of domestic violence, sexual assault, and other crimes. The book scrutinizes thousands of deferred action cases and identifies a historical and humanitarian pattern for the types of cases that are processed and granted deferred action. In the last fifty years, people have received deferred action for largely humanitarian reasons, including the following attributes: advanced or tender age; long term presence in the United States; serious medical condition, or a primary caregiver to a person with a serious medical condition; and family members who are U.S. citizens.

Much of the deferred action data analyzed in Beyond Deportation was obtained through the Freedom of Information Act, or FOIA. In the early years of my FOIA adventures, the data was in some cases disorganized, illegible and elusive. Even obtaining illegible data was remarkably exhausting and sometimes involved multiple communications with FOIA officers, government attorneys and the DHS’s own ombudsman. But the challenge was not limited to the shield held by the agency over the information itself or questions to myself about whether practitioners and scholars should have to file a FOIA to obtain basic information on topics such as ‘how to file a deferred action request.’ The challenges were more complex because some of the data I sought was simply not tracked by the agency. As one example and as a result of a FOIA lawsuit with ICE over deferred action cases, ICE confirmed that it did not track deferred action cases before 2012.

My own experiences in seeking and sorting data inform the book’s discussion about transparency. Transparency in prosecutorial discretion mat­ters because it improves the possibility that justice will be served for people whose roots and presence are in United States. Transparency also promotes other administrative law values like consistency, efficiency and public acceptability. I commend DHS for advancing these values through DACA—by creating a program that is trans­parent and aimed at protecting young people who satisfy the program’s core elements and, in these modern times, reflect the program’s humanitarian roots.

Beyond Deportation closes with praise for DACA but is replete with recommendations to the general deferred action program, which continues to lack form, specific criteria or even basic instructions on how to apply. As to the broader prosecutorial discretion policy, the bookcalls on DHS to look at the whole person when making prosecutorial discretion decisions. DHS memoranda on prosecutorial discretion suggest that no one single factor is dispositive to a prosecutorial discretion decision. However, the book’s case profiles of those deported—and anecdotes from immigration advocates and members of Congress about the impact of these deportations on families—raise important concerns to the contrary.

Whether or not prosecutorial discretion has earned visibility for political reasons, understanding the history of prosecutorial discretion and the important role it plays in U.S. immigration law is essential. My own preoccupation with prosecutorial discretion began during my time as law student clerk and later attorney at Maggio Kattar P.C. I worked on a wide range of immigration cases, but the most life-changing cases involved those individuals whose only prayer was prosecutorial discretion. Following the attacks of September 11, 2001, I worked for several years as a legislative lawyer in front of the “political” branches, advocates, and affected communities. In the decade after 9/11, agency officials and policymakers were loath to openly discuss “prosecutorial discretion.” For the last seven years, I have lived in central Pennsylvania writing largely about the role of discretion, teaching immigration, and directing the Center for Immigrants’ Rights Clinic. This professional background combined my personal life experience as a child of immigrants raised in the U.S. with tremendous opportunity, a wife, and mother set the landscape for Beyond Deportation. I am honored to have had the opportunity to write this book and to share some of its origins here.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar, law professor, and director of the Center for Immigrants’ Rights at Penn State Law. She is the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015).