Missing and murdered indigenous women, girls and Two-Spirit: a crisis of tribal sovereignty

Native women face murder rates more than 10 times the national average. According to the Coalition to Stop Violence Against Native Women, homicide is the third leading cause of death among Native girls and women aged 10 to 24 and the fifth leading cause of death for Native women aged 25 to 34. The Missing and Murdered Indigenous Women, Girls, and Two Spirit People (MMIWG2S) crisis is not a new phenomenon despite the fact it's making national headlines recently. The violence that indigenous women, girls, and Two-Spirit people (those that are genderqueer or with multiple gender identities) face has roots in colonization, genocide, and the erosion of tribal sovereignty carried out by the legal system and federal discriminatory policies. Self-determination and restoration of sovereignty is one solution to the MMIWG2S crisis.

When indigenous communities are asked what they want, they often respond with tribal sovereignty or self-determination. Understanding the history of Indigenous people's fight for self-determination is crucial to understanding why the MMIWG2S crisis is occurring in the first place. According to Rudolph Ryser's Between Indigenous Nations and the State: Self-Determination in the Balance paper: when defining self-determination it is the "right of all peoples to freely choose their social, economic, political and cultural future without external interference." Self-government means that the Indian Nation that makes and enforces its own decisions. 

The legal system has continuously deprived Indigenous peoples of their rights to self-determination, eroding their sovereignty and constructing U.S. legal rules in place of self-determination. The 1871 Indian Appropriations Act severed formal government relations between Indian Nations and the United States. After the landmark Crow Dog decision in 1883, which recognized treaty obligations between the United States. and the Sioux Tribe, Congress took back its power via the Major Crimes Act. This Act imposed U.S. authority inside Indian territory over eight crimes which including murder, manslaughter, rape, and assault. Through the use of the legal system, the United States has been able to carry out its settler-colonial policies. As American historian Roxane Dunbar-Ortiz argues, settler colonialism is the founding of a state based on white supremacy, African slavery, and land theft. An invasion of lands also creates an invasion of people's bodies. 

This jurisdictional and legal struggle has important implications for who has jurisdiction over violence against women on Indian land is treated. As Dartmouth professor Bruce Duthu states in his 2008 New York Times op-ed, remedies to sexual violence [against indigenous people] are often non-existent, He writes, "when non-Indian men commit acts of sexual violence against Indian women, federal or state prosecutors must fill the jurisdictional void."  Duthu goes on to explain that "more than 80 percent of Indian victims identify their attacker as non-Indian." He also advocates that tribal governments to have jurisdiction over reservation-based crimes "given their familiarity with the community, cultural norms and in many cases, understanding distinct tribal languages." 

Indigenous women are also uniquely positioned. Consequences of state-sanctioned violence are heightened when analyzing their positionality through the lens of geography, social and geographic isolation. Often, residing on reservations can also pose significant barriers to getting the justice they deserve. As U.C. Davis Law professor Lisa Pruitt writes in the Wisconsin Journal of Law, Gender and Society in 2009, taking into consideration the rural-urban axis (when it comes to domestic violence) is very important when it comes to the presence, investigation, and judicial decision-making regarding crime. The same can be said of Native Nations who are not served on or off the reservation system. 

There is no one-size-fits-all solution to the tribal sovereignty and jurisdictional issue. However,  U.S. encroachment over Indian sovereign authority does not allow Indian nations to create safe communities. A large grassroots movement with advocates, family members, and the general community continues to call for accountability and public awareness in the wake of the MMIWG2S crisis. In fact, indigenous people have mobilized a community response through toolkits, calls to action, and working towards restorative justice and community healing. 

Indigenous advocates and allies caution giving power to police should come because the police themselves perpetuate gender-based violence against Indigenous women as discussed here. Native people are more likely to be killed by police officers than any other minority group in the country. Prosecutions might not deliver the justice the community wants either, but working towards sovereignty and self-determination gives agency and autonomy back to indigenous communities empowering them to both prevent and resolve this crisis. 

Justice for indigenous people is what they decide for themselves. It involves what indigenous people have called for: land back, a return to indigenous practices of care towards the land, education, and employment opportunities. Ultimately, resolving the crisis of MMIWG2S involves an intersectional approach that considers the history and root causes of this gendered violence, and which takes into consideration the current legal, political, economic, and social conditions that have fueled this crisis. Ultimately, our goal should be to end this violence and protect our communities. 

Deep dive into rural disadvantage in Virginia

The University of Richmond Law Review symposium on rural legal issues has been published and it includes this deep dive into rural Virginia by Prof. Andrew Block of the University of Virginia and Antonella Nicholas, who will soon be a graduate of that law school.  The title is "Those Who Need the Most Get the Least:  The Challenges of, and Opportunity for Helping Rural Virginia."  Part of the article's introduction follows:  

Rural America, as has been well documented, faces many challenges. Businesses and people are migrating to more urban and suburban regions. The extraction and agricultural economies that once helped them thrive—mining, tobacco, textiles—are dying. And, as we discuss below, residents of rural communities tend to be older, poorer, less credentialed in terms of their education, less healthy, and declining in population.

On a regular basis, political leaders on both sides of the aisle, and on national and state levels, make commitments to rural areas to help improve the quality of life for residents, to listen, and to help. Even with all the attention, many challenges remain, leading policy makers to ask: How can we help our rural communities?

In this Article we try to answer that question by looking specifically at the Commonwealth of Virginia, a state whose rural residents suffer disproportionately worse life outcomes than their counterparts in other parts of the state. While it is true, as we will show, that state leaders have paid attention to these challenges, it is equally true that many of the challenges facing rural Virginians persist.

It is important to note two things at the outset. First, rather than being comprehensive, this Article is intended to be illustrative—both of the challenges and of the solutions for rural Virginia. Therefore, we, by necessity, made some choices about which topics to cover and which to exclude, however important they might be.

Likewise, even with the topics we chose to examine, we could not delve into every challenge and solution within each topic. Hopefully, however, by presenting the issues as we have, and offering up some policy recommendations for each, we have demonstrated the wide range of issues and challenges, and the wide range of intervention and support necessary to help our rural residents.

Second, and importantly, by examining demographic data, and detailing some of the struggles that many in rural Virginia face, we do not intend, at all, to denigrate or question the benefits of rural living, the strength of communities in many parts of rural Virginia, or the individual choices made by people who live there. We are simply trying to use the data, and illustrate the challenges, to make the case that policymakers need to do more to help rural Virginians lead the kind of lives they deserve to lead.

Our Article proceeds as follows. We first say a quick word about definitions, and what “rural” means. We then lay out demographic information about rural Virginians to illustrate some of the key challenges to serving rural communities, and to demonstrate the overlapping and related nature of the challenges facing many rural residents. We also spend time on demographic information to show that the rural population in Virginia is much more racially diverse than is commonly perceived. This racial diversity, we contend, is also critical for policymakers to understand as they craft solutions to the challenges facing rural Virginians. It is critical to under- stand because the problems in certain regions may have different causes and historical antecedents, and perhaps may require more creative policy solutions, than the same problems in other rural regions. Likewise, making clear that rural populations are not, as popularly conceived, a white, conservative monolith, may also make it more possible for a bipartisan and geographically diverse group of legislators to come together to address these challenges.

After discussing demographics, we make recommendations in various policy areas that align with the needs of rural residents as outlined in the demographics Section. For each area, we explain the problem, some of the work done to address that problem to date, and the areas where we need to devote more time and re- sources.

With this overview, our hope is that this Article might be of value to current and future Virginia policymakers and even to policymakers in other states attempting to grapple with these persistent challenges. Indeed, part of the point of the synthesis is to demonstrate that there are issues endemic to rural life—lack of employment options, broadband access, transportation gaps, low tax bases, and an aging population—that are not as present in urban communities. In this way, rural issues are both unique and profoundly interconnected with one another. Unless and until policy makers engage in a cross-cutting comprehensive approach to the challenges and problems that rural communities face, they will persist.

In addition to exploring a range of challenges and potential problems, and to address the connectivity problem, we conclude by offering some policy recommendations. Chief among these is that Virginia create a high-level cabinet position with interagency authority to oversee rural affairs and development.

An interesting feature of the article is an appendix listing two years of business openings in rural Virginia. 

Here is the link to the entire symposium, which includes my article (with Kaceylee Klein), "Rural Bashing."

A profile of rural pragmatism

The Washington Post's Steven Pearlstein wrote this week about U.S. Congressman Jared Golden, a former Marine, who is attempting to broker a deal about the debt ceiling.  The headline is "Amid the debt ceiling madness, a lonely voice of sanity emerges."  Here's an excerpt: 

[I]t fell to Rep. Jared Golden, a pro-choice, pro-gun Democrat from a Trump district in the backwoods of Maine, to venture a reasonable plan to tame runaway budget deficits. Neither party would like it, but I think most Americans could accept it. In other words, an artful compromise.

* * * 

Golden is a walking refutation of such cynicism. He’s won three times in a solidly Republican district despite lackluster support from party leaders and millions of dollars in out-of-state money pouring in to defeat him. In 2020, he outperformed President Biden by 14 percentage points. And he did it not by pandering to voters or spinning them but by respecting them — and winning their respect in return.

Pearlstein quotes Golden: 

I get a lot of people say things like, I don’t often agree with you — but I like that you take the time to explain your thought process.

Golden explained that in "the political and media worlds... people thrive on conflict and have a simplistic way of thinking about voters. What they overlook, he said, 'is that there are a giant number of people out there who would just like a functioning government.'"

Sadly, as of yet, no colleague has stepped forward to sign on to Golden's framework.  

Central Valley city--prison and all--threatened with flooding from spring snow melt

A team of Los Angeles Times journalists reported this week from Corcoran (population 24,000), where the rise of water in the Tulare Lake basin is threatening not only the town, but also a state prison and the California Drug Use Treatment Facility.  Together those institutions house 8,000 men and employ many residents.   

Here's an excerpt: 

A bottle of Tums antacid tablets rattled in the cup holder of Kirk Gilkey’s truck recently as he drove around the area surveying the rising water.

Gilkey’s family has been farming in the area for generations. He said this is the first year in decades that his farm won’t plant cotton because of flooding. But what distresses him most is not the financial pain big farmers will experience but the hardship that will be visited upon workers and their families who are dependent upon agriculture for their livelihoods.

“People are scared,” he said. If “Corcoran floods, it’ll be a ghost town after. It won’t survive.”

City Manager Greg Gatzka, who for weeks has been waging an unsuccessful campaign to marshal state and federal funds to bolster the levee, said he is “beyond frustrated” by the difficulty of accessing emergency funding.

Local officials want to see the levee reinforced and raised by 3.5 feet — an engineering feat that would cost $21 million, according to Gatzka. 

In the meantime, the Cross Creek Flood Control District, which is responsible for the levee, has tapped reserve funds to begin gathering dirt to reinforce it. But Gatzka said the agency has exhausted its resources and needs state help. 

Corcoran is part of the Hanford-Corcoran metropolitan area, in Kings County, one of the poorest in the state.  Its population is majority Latino. 

A related Associated Press story out of nearby Leemore is here.

Here's a March story from CalMatters about state budget cuts for floodplains.

Another post about places imperiled by recent flooding and/or impending flooding from California snow melt is here. Another LA Times story about a community imperiled by snowmelt is here. 

A drug ravaged rural America: Bracing for the battle against Tranq

The opioid epidemic has, indiscriminately, ravaged both urban and rural communities in the United States. However, there is a new drug taking over the country, and concern over how this may impact rural America is at the forefront of many heath service providers. As they brace for the inevitable impact, the question remains how rural communities can combat pervasive drug use while battling the systemic issues that made them vulnerable to this drug crisis in the first place. Fortunately, there may be some legislative relief on the horizon.

Until a few months ago, fentanyl was thought to be the most lethal drug on the streets of America. According to the California Department of Public Health, “fentanyl is a synthetic opioid that is up to 50 times stronger than heroin and 100 times stronger than morphine.” The Center for Disease Control and Prevention (CDC) reported that in 2021,synthetic opioid-related drug use accounted for over 100,000 deaths. Of that number, fentanyl-related deaths account for over half of all opioid related deaths. This number is consistently rising every year.

The CDC also noted that in five states, "California, Connecticut, North Carolina, Vermont, and Virginia, the rate of drug-overdose deaths in rural counties were higher than those in urban counties." The entire country is marred by the effects of the drug epidemic, however, rural Americans face particular challenges for several reasons discussed in class. These include restricted access to health care, treatment facilities, and doctors. Other more structural issues include, special isolation, poverty, housing insecurity, transportation, and even lack of internet access which impacts rural American’s ability to see online health providers.

In fact, in 2021,"rural children and adults under 65 were more likely than their urban peers to be uninsured." This data is significant because it shows that rural America is already suffering from health care disparities that will limit their response to the latest drug emerging in already decimated communities: Tranq.

Tranq is a street name for the animal tranquilizer, Xylazine, and is typically an additive to already lethal opioid drugs like heroin, cocaine, and fentanyl. While, the origins of this concoction are thought to have emerged from Puerto Rico, the New York Times recently reported its rising prevalence in the United States. It is currently unregulated and not criminalized.

One of the most alarming symptoms of Tranq is that persistent use causes open, gapping wounds in or around the injection sites of people struggling with addiction. While this symptom is not seen when the drug is used as intended, namely for animals, it is leading to an alarming rise in infections. This sometimes necessitates amputations after tissue becomes necrotic and, in some case, completely dies off.

Other side effect of this deadly drug include amnesia, drowsiness, slow breathing, and dangerously low heart rate and blood pressure. It has been dubbed a “zombie” maker for the way in which it causes those consuming it to immediately enter a deep stupor.

Ironically, rural America needs Xylazine. The drug is commonly used to treat cattle and other commercial live stock. While the White House designated Xylazine as a national drug threat, there are other considerations for animal caregivers that need the drug to do their jobs. For example, veterinarians fear that if the drug were regulated, the medicine and their access would be heavily policed. Another consideration is that “[p]roduction of a classified drug would require additional quality control and security measures so costly that a manufacturer could raise the drug’s price or just stop making it altogether.”

However, if Xylazine were regulated by the FDA, police would be able to criminalize distribution for human use. Significantly, the police can’t arrest a person for sales or distribution of xylazine. Therefore, there is virtually no law enforcement ability to effectively curtail sales.

In an effort to appease both those who want to criminalize Xylazine and those who do not want to, Sen. Catherine Cortez Masto, a Nevada Democrat, Sen. Chuck Grassley, an Iowa Republican, and Sen. Maggie Hassan, a New Hampshire Democrat introduced a bipartisan bill that would make anybody purchasing the drug pay the same fines as if it were classified as a Schedule III drug. Their hope is to keep the drug accessible to those who would suffer from its regulation but punish those profiting from its illegal uses.

Unfortunately, paying fines does little to stop the harm already underway. In March, the DEA reported that it 2022, it had found Tranq in confiscated fentanyl mixtures in 48 out of 50 states. In a separate report, the DEA noted it had found Xylazine in all four regions of the United States: Northeast, South, Midwest, and West. The South experienced the worst increase over a two-year period with Xylazine-related drug incidents up by 193%.

All the data suggests Tranq is taking over and while the full scope of the problem is not yet known, it is clear that trouble is brewing.

Ironically, Republican legislators may offer some hope. In an uncharacteristically timely move, a bill led by Iowans Sen. Chuck Grassley and Rep. Randy Feenstra to prevent opioid addiction, overdoses and deaths in rural communities was signed into law in December of 2022. The Rural Opioid Abuse Prevention Act, allows grants to be used for pilot programs for rural areas to implement community response programs that focus on reducing opioid overdose deaths, which may include presenting alternatives to incarceration.

The Rural Opioid Abuse Prevention Act is a step in the right direction, and as rural America prepares for another battle, it is a measure of assistance in a dessert of need.

Rural Policing (Part 2): Community solutions

In my previous post, I discussed police shortages in rural areas, some adverse effects of these shortages, and the rise in sheriffs making individual determinations as to what laws they will enforce. 

I am extending the discussion from that post by exploring how communities, particularly those of color, have found their own solutions for the lack of adequate policing and general lack of resources. I also explore the "punishments" these communities receive while police officers are kept mostly unaccountable. 

I was inspired to continue this discussion after watching Check-It, a documentary in which a queer community forms a self-defense group after multiple people experience brutal attacks for their sexuality. While the self-defense group was initially characterized as a "gang" because of their brutal attacks on homophobic assailants, the group has now created a clothing label and funded a community center where they provide members with resources, help people develop practical skills, and organize fashion shows. Check-Its change was triggered when some of its members ended up in jail, causing others to realize that their violence inevitably kept some members in the cycle of poverty they all wished to escape. 

Key to the development of the Check-It community was the lack of adequate police response and even violence by the police against victims who sought help from them. Similarly, rural people take up arms to defend themselves because of a similar lack of adequate police responses to violent crimes, as I discussed in part I. Like those in Urban, D.C., many rural people believe their individual gun ownership will reduce crime rates.  It seems that police everywhere are failing people everywhere.

However, a crucial problem arises when abandoned groups of people take their defense and protection into their own hands: the court system fails them after every other part of the criminal justice system has done so. For instance, when queer people, and more predominantly people of color, engage in self-defense, they disproportionately end up in jail.

That was the case in Out at Night, a documentary discussing the lives of four lesbian women who each were sentenced to over eight years of prison for stabbing a man that charged at them after yelling homophobic epithets. Despite meeting all the elements of self-defense and having video and witness evidence, the women's self-defense claims were rejected, and all four women were charged with gang assault. 

This was also the case for Luke O Donovan, who ended up serving 2 years for pulling a knife on a group of men that attacked him and yelled derogatory remarks at him. Surely, these are not the only instances in which self-defense claims have resulted in the imprisonment of innocent people. 

Furthermore, it is often the case that women will end up in jail for fighting back against men who abuse them. This hole in the legal system can be particularly damaging to rural women who often face heightened instances of domestic violence. Exemplified by Brenda Golden, an attorney, and Muscogee Nation citizen, who had the police called on her for hitting her ex-husband with an ashtray after he would not stop abusing her. 

The horror of these instances is that, after being failed by the police, who cannot or will not help them, people take matters into their own hands and end up in jail anyway. This punishment happens at the hands of those who would not help victims in the first place. What's worse is that the root of this problem is not particularly clear or simple. Cynthia Lee's, Minnesota law review article suggests that self-defense's "reasonable person" standard is to blame for the horrors. While Phyllis Chesler suggests that the problem arises out of our gendered expectations, " Women are held to higher and different standards than men, who are expected to be violent; people do not expect and will not tolerate women to be violent, even in self-defense." 

The silver lining that comes from this issue is that communities find ways to help their members, even when the state and police fail to step in. This brings me back to Check-It, who seemingly came to the realization that self-defense measures can have varying results, instead, they turned their efforts to providing resources that help people change their lives. 

While rural members who take up arms and stay at home might not experience such devastating outcomes, similar resource centers are created in rural communities. This often occurs through churches, as exemplified in The Overnighters, (another documentary), where homeless rural people, including homeless LGBT+ people, seek refuge in their local churches.

It seems that community work is crucial to solving policing issues; something that marginalized communities have always known and provided for each other. How many problems could be fixed or reduced if we offered more funding for communities to provide better resources for themselves? And should we leave communities to resolve these issues alone? Or is a complete revamping of our criminal justice system? 

Rural Arkansas prepares for end of Medicaid expansion

Steve Brawner reports for KUAR Radio out of Little Rock under the headline, "Rural Arkansas health providers prep for post-COVID Medicaid roll reduction."  An excerpt follows: 

Arkansas rural health care providers are preparing for an uncertain future as the Department of Human Services begins disenrolling thousands of Medicaid recipients for the first time since the start of the COVID-19 pandemic.

The federal Consolidated Appropriations Act, signed into law last December, allowed states after March 31 to begin dropping Medicaid recipients who are no longer eligible or who have not responded to DHS communications to renew their benefits.

The state had 1.138 million Medicaid enrollees as of February, a 23.6% increase over March 2020, according to DHS’s “Arkansas Comprehensive Unwinding Plan.”

At a Rural Health Association of Arkansas conference Thursday (April 20), Rep. Jack Ladyman, R-Jonesboro, noted that all Medicaid beneficiaries will have to be reevaluated over a period of six months. He said it’s been projected that up to 300,000 Arkansans could be dropped from Medicaid for a variety of reasons, including that they have gotten better insurance at work. But some will fall through the cracks.

“A lot of people are going to lose their coverage. We know that. We don’t know how many,” Ladyman said. “This is also, or could be, a major impact on the state budget.”

Ladyman said lawmakers budgeted taking money from the Medicaid reserve to help meet the needs.

Ladyman, a former chairman and now member of the House Public Health, Welfare and Labor Committee, was part of a panel discussion that also included committee members Rep. Aaron Pilkington, R-Knoxville, and Rep. Mary Bentley, R-Perryville, as well as Sen. Fred Love, D-Mabelvale, a member of the Senate Public Health, Welfare and Labor Committee.

David Mantz, CEO of the Dallas County Medical Center in Fordyce, told the legislative panelists that hospitals will not turn away former Medicaid patients and will likely provide more uncompensated care.

Gov. Sarah Sanders told Talk Business & Politics in an interview that aired on the “Capitol View” television program April 16 that she could call a special legislative session to deal with Medicaid issues including disenrollment and also her administration’s request for a waiver allowing the state to include a work requirement for some recipients.

I believe that waivers permitting states to include work requirements for Medicaid were struck down a few years ago, but maybe Sanders is hoping Arkansas will get another bite at that apple in the courts. 

There's plenty of evidence, of course, that some states' failure to expand Medicaid in the wake of the Affordable Care Act has led to the closure of many rural hospitals.  

Other recent stories about the struggles of rural health care providers in other states are here (Colorado) and here (California). 

Spatial inequality in Texas indigent defense provision

William Melhado for the Texas Tribune reports under the headline, "In rural counties, Texas law puts low-income defendants at a disadvantage."  The subhead is, "A two-tiered system gives less populated counties more time to provide court-appointed lawyers, requiring creative responses to a long-standing problem."

Here's an excerpt:  

While indigent residents — those who can’t afford an attorney — of counties with more than 250,000 people must be provided with a court-appointed lawyer within one day of requesting counsel, the wait for rural Texans could stretch up to five days.

Lawmakers approved this system 22 years ago, in part to address a long-standing problem — a persistent shortage of lawyers working in rural Texas — by requiring counties to create appointment procedures and establish qualifications for attorneys representing indigent clients.

The law, however, also gave the state’s less populous counties more time to assign a court-appointed attorney, jeopardizing the right to legal representation as guaranteed by the U.S. and Texas constitutions.

“That’s changing the law to make the problem legal. It’s not fixing the problem,” said Pamela Metzger, a law professor and director of the Deason Criminal Justice Reform Center at Southern Methodist University in Dallas.

For low-income residents of almost 200 rural counties, where few if any lawyers may practice, delays in representation can translate into more time in jail and rushed plea deals — both of which can lead to loss of jobs, housing and child custody.

* * *

The problem has drawn the attention of several Republican lawmakers who recently filed identical House and Senate bills to establish a favorable loan repayment program for lawyers who choose to work in rural parts of the state where relatively lower salaries and few law firms can limit opportunities, particularly for young lawyers struggling with law school debt.

Under House Bill 4487 and Senate Bill 1906, lawyers would receive up to $180,000 to repay student loans if they practice criminal law in a rural area for four years. The goal is to encourage novice legal professionals to build careers, families and community ties in rural Texas.

In addition, some rural counties have banded together to create public defender offices that provide lawyers for indigent residents. Although the offices are providing needed relief, hundreds of rural defense attorneys have retired, died or moved away in recent years, leaving some areas underserved.

* * *

According to research by the Deason Center at SMU, there were 181 different plans for appointing counsel in 2019, each with their own standards of determining when someone meets the financial threshold to receive a court-appointed attorney. Those plans can consider income, assets, financial obligations and more when considering if someone is “not financially able to employ counsel,” which is the state’s definition of indigent.

My work on spatial inequality in indigent defense provision in Arizona is here. 

Three stories of loss out of rural northern New Mexico

Several national media outlets have recently reported out of the rural reaches of northern New Mexico.  I collect these stories, all of some sort of loss, in this post.  

Jeffrey Fleishman of the Los Angeles Times reported last month out of Espanola, New Mexico, population 10,526.  The headline is "Can this town save itself from fentanyl addiction? The race to turn around a threatened community."  Excerpts follow, with the first about the place: 

Sitting amid tribal lands straddling the Rio Grande, Española appears stranded between better known Santa Fe and Taos. More than a century ago, long before cartels trafficking fentanyl with nicknames like China White and Dance Fever crisscrossed New Mexico on Interstate 40 and Interstate 25, ranchers and farmers here loaded their wares on trains bound north and south in what was known as the Chili Line. That route ended decades ago; other small businesses and industries disappeared as well.  

Then there's this about the current crisis:  

Shoppers and workers drove past addicts roaming Riverside Drive, the main drag in this town of 10,500. Kids played in trailer parks. Contractors loaded pickups. Cars came and went from a methadone clinic. Men wearing hoodies and expectant gazes drifted toward a house with barred windows. They rustled pockets for cash. Others headed toward the marshes on the city’s fringes, where, as the morning frost lifted, Cristian Madrid-Estrada, a bearded man of 23, sat with a gun holstered on his hip at the Española Pathways Shelter [where he is the chief executive officer].

* * * 

Rallying voices are trying to fix this community under siege. But it’s unclear if the story of Española, where a quarter of the population is poor and the murals of the dead are painted on junction boxes, will be a narrative about how to save a town from addiction — or lose it. In a one-year period ending in June 2022, Rio Arriba County reported 50 fatal overdoses, giving it the highest rate in New Mexico. It was about four times the national rate of approximately 33 per 100,000.

Here's another quote from Madrid-Estrada: 

It’s insane how much has changed in the last year. It’s scary. We have generational drug use. Generational trauma. Half the kids I went to school with didn’t have parents. They were dead or in jail or gone. [But fentanyl] is a completely different animal. A whole new epidemic no one was prepared for.

The LA Times story also covers familiar rural issues, including lack of resources such as detox and addiction treatment.   

Then, a few weeks ago, Simon Romero reported for the New York Times on another loss--that region's dying Spanish dialect, one centuries old and linking back to the era of the Conquistadors.  The dateline is Questa, population 1742, and an excerpt follows: 

Even just a few decades ago, the New Mexican dialect remained at the forefront of Spanish-language media in the United States, featured on television programs like the nationally syndicated 1960s Val de la O variety show. Balladeers like Al Hurricane nurtured the dialect in their songs. But such fixtures, along with the dazzling array of Spanish-language newspapers that once flourished in northern New Mexico, have largely faded. 

Romero quotes Cynthia Rael-Vigil, 68, who runs a coffee shop in Questa and who traces her ancestry to a member of the "1598 expedition that claimed New Mexico as one of the Spanish Empire’s most remote domains."  

Our unique Spanish is at real risk of dying out... Once a treasure like this is lost, I don’t think we realize, it’s lost forever.

Referring to her 11-year-old grandson who speaks almost no Spanish of any dialect: 

He has no interest. Kids his age master the internet; that’s all in English. I sometimes wonder, did my generation not do our part to keep the language alive?

Romero links the language loss to the decline of places like Questa: 

[T]here are questions about whether the rural communities that nurtured New Mexican Spanish for centuries can themselves last much longer in the face of myriad economic, cultural and climate challenges.

* * * 

Economic forces have fueled an exodus from the aging northern villages made up of crumbling adobe homes. Other threats — such as the largest wildfire in New Mexico’s recorded history, which tore through the state’s Hispanic heartland a year ago.

And that's a great segue to the last of the three stories of loss, Alice Fordham's report for NPR about victims of last spring's Hermit's Peak Fire who have yet to see the compensation they've been promised.  That fire was started by a federal government controlled burn that, well, got out of control.  Here, Fordham interviews Antonia Roybal-Mack, a local attorney who is trying to help residents negotiate with the federal government:   

FORDHAM:  Because the fire began as escaped prescribed burns by a federal agency, the U.S. Forest Service, the federal government took responsibility, and Congress passed a law promising compensation. It appropriated nearly $4 billion. Roybal-Mack says she's been hired by hundreds of households and other entities like municipalities to put a number on their loss. But the claims process is complicated.

ROYBAL-MACK: We can't give our clients any certainty on this is what it is. This is how it looks. This is your path. This is what we expect to see happen.

FORDHAM: That's because the rules aren't finalized. The Federal Emergency Management Agency, or FEMA, is running this compensation program. It issued interim regulations last year. But after hundreds of public comments raising concerns about things like a cap of 25% on the value of trees, the agency has no date for a final version.

ROYBAL-MACK: FEMA is saying trust us that we are going to do right by you, but we're not going to give you a rule, and we're not going to have a guidebook as to how we're all going to play this game.

So, there's talk of a possible lawsuit against the federal government, and the story closes with an implicit reference to rural lack of anonymity.  

ROYBAL-MACK: In the event we sue the federal government, we will have the evidence necessary to do that.

FORDHAM: She's from the county of Mora, which was hit hard by the fire. Her father's ranch burned. And as we ride around, she says there's some social pressure.

ROYBAL-MACK: If I screw this up, I can't go to church here anymore. And I really like to go to church in Mora [County].

The culture of alcoholism in Wisconsin and its effect on rural Wisconsinites

I was never embarrassed by my upbringing until I began to share it with others who were not raised in my Illinois hometown. My home county borders Walworth County, Wisconsin (population density of 191.7 per square mile), and I spent a lot of time in Wisconsin growing up. My house, much like my friends’ homes, was filled with clutter, empty bottles, and cigarette butts. All too often, dinner was meager leftovers disguised as a salad or stew; other times it was eaten with my mom in a bar. Either way, my mom and I washed the meal down with a bottle of room-temperature Coors Light and a breath of fresh smoke from the cigarette burning in my mother’s hand.

For a long time, my relationship with my mother consisted of nothing more than sharing a beer in my room while I did homework and listened to her complain about work. “Smoking kills,” I’d say as the air became hazy. “Work will kill me first,” she’d reply, “or hunger will get us both if I quit my job.”

Before I continue, I’d like to state that I adore my mother and greatly appreciate the sacrifices she has made for me. As a working, single parent who has lived a traumatic life, she was doing the best she could. I wouldn’t be where I am today, or probably even alive, without my mother and her selfless parenting.

Now that I am in a California law school, studying rural livelihoods, I realize my classmates’ judgment of my past is fitting. Although alcoholism is in no way exclusive to rural areas, I have learned that rural residents are much more likely to struggle with it, particularly those in the Midwest.

Recently, I stumbled upon this map, compiled by Ph.D student Nicholas Pierson at the University of Chicago from data gathered by County Health Rankings by the University of Wisconsin:

At first glance, I laughed and was proud that Wisconsin dominated the map. (For those not familiar with Wisconsin, the tiny white area in the middle-right is a lake, not a county).

Then, I began to ponder how Wisconsin got so drunk.

Numerous studies have shown that children mirror habits from their parents, as observational learning is one of the fundamental ways developing minds develop their behavior. This led me to wonder, does the time-old adage about “monkey see, monkey do” perpetuate alcoholism in Wisconsin?

From a young age, Wisconsinites are surrounded by drinking. Children often take trips to see the Clydesdale horses at the headquarters of the Miller Brewing Company in Milwaukee or cheer on their MLB team, the Milwaukee Brewers. 

This pride surrounding beer (and drinking it) is evident in the legislation, too. In Wisconsin, underage persons are legally allowed to be served alcoholic beverages in public, so long as they are accompanied by a parent, legal guardian, or spouse of legal drinking age. Further, many bars interpret this loosely. At age 12, I sat with my mom and legally drink in bars. As I got older, my friends and I would go with people of age and claim they were our guardians or spouses, which allowed us to be served just as easily. When doing so, we knew to stay out of urban centers like Milwaukee, where the laws tended to be more strictly enforced. We opted instead for small, corner bars in less populous areas that rarely check IDs at all.

However, allowing those under 21 to legally drink in public is not the only legislative loophole that allows minors to partake in addictive habits. Wisconsin law allows adults to escape liability for facilitating underage drinking. Their code specifies the elements of “knowingly permitting or failing to take action,” yet this only applies to adults physically occupying the property when underage drinking occurs. For lodging establishments, liability can be avoided if the establishment does not have hired security and if minors pay for the rented space themselves. (Although not strictly related to alcohol, Wisconsin also allows the sale of tobacco products to those 18 and over, even though federal law mandates an age of 21 to purchase.) 

As children grow to become adults, access to alcohol increases substantially. Wisconsin law allows adults to begin buying alcohol as early as 6 am. Tax on alcohol is also low in Wisconsin. Instead of using a percentage of cost sold, Wisconsin taxes alcohol by volume, at the following rates: all beer and cider is taxed at around 6.5 cents per gallon; wine is taxed at 25 cents per gallon; and liquor is taxed at $3.25 per gallon. These are among the lowest rates of taxation for alcohol in the nation. For comparison, consider that Washington state taxes beer at 26 cents per gallon, wine at 87 cents per gallon, and liquor at $35.22 per gallon. 

Wisconsin even provides a legislative loophole for the enforcement of drunk driving. Legislation classifies driving with a BAC over 0.08 as Operating While Intoxicated (OWI) instead of Driving Under the Influence (DUI). The difference between the two is in the enforcement because officers are not required to cite or arrest an adult for an OWI, even though the driver may be legally drunk. The consequences of an OWI are also far less harsh than that of a DUI because jail time is not imposed on first-time offenders unless the drunk driving results in injury, death, or endangerment of a minor (which occurs if a minor is in the vehicle when stopped by an officer). Furthermore, second-time offenders do not have much threat of jail time if their first offense happened ten or more years ago. Since OWI laws are much more lax than other states, many Wisconsin drinkers have the mindset that there is no penalty for drunk driving as long as they’ve never been caught before. 

Alcohol use is also greatly accepted in Wisconsin. Although there is no definitive reason as to why drinking is a cultural norm, everybody there agrees that it is. In fact, many Wisconsinites are proud to be known as drinkers, brag about their high-tolerances, wear state-specific drinking merchandise, and are even globally recognized for their spirit for the spirits.

This all seems like a lot of good (yet, irresponsible) fun until you consider this through the rural lens. After looking at the “% Excessive Drinking per County Map” above, I began to wonder why the upper Midwest, namely Wisconsin, Minnesota, Iowa, Illinois, the Dakotas, and Michigan, drink so excessively. A pattern emerged when comparing the map above to the “Classification of Counties” map by the Daily Yonder, which depicts which counties are rural, exurban, and urban:

Many of the Wisconsin counties with the highest percentage of excessive drinking are rural counties. I gave my best attempt at Photoshop to overlay the two, with the darkest green being rural areas with the highest percentages of excessive drinking:

The phenomenon of higher alcoholism rates in rural areas has been studied in length, and rural Wisconsin is no outlier to researchers’ findings. Statistics show that rural Wisconsinites have higher rates of excessive drinking than their urban neighbors. This study cites two main reasons for drinking alcohol: in social scenarios or to cope with mental health issues.

 

These two factors are certainly reflective of what I’ve seen in rural Wisconsinites. I’ll discuss social scenarios later, as I feel the tie between mental health issues and drinking is stronger in rural Wisconsin. One reason for this is the harsh winter climates. Although all of Wisconsin is subject to cold and gloomy weather, rural areas tend to suffer more from the elements. This is due to a lack of concentrations of buildings, pavement, and other surfaces that absorb and retain heat, and a lack of resources to assist those needing refuge from the cold. Additionally, many rural counties in Wisconsin do not receive the warming effect of Lake Michigan in the winter. 

 

Over 3 million people in the U.S. were diagnosed with seasonal depressive disorder (SAD), but many more experience some version of the “winter blues,” although not as severely. SAD and the “winter blues” typically occur during the colder months of the year when the skies are also drearier. Wisconsin experiences these colder months from October to April, making Wisconsinites susceptible to seasonal sadness six months out of the year. This is in addition to the higher depression rates rural citizens already face compared to their urban counterparts. (This 2014 post expands on the mental health crisis facing rural America). More than 2 million Wisconsin residents (almost half of the population) reported living in a community without access to mental health care. This data point does not include those who did not receive the poll and those who did not report, and it does not distinguish between rural and urban respondents.

           

Additionally, treatment for alcohol dependence and addiction is harder to find in rural Wisconsin. Although many areas have access to Alcoholics Anonymous programs, a large number of towns have no meetings within a 30-minute drive. Community substance abuse programs exist in every county, but they are often overcrowded, underfunded, and not available in all rural communities. 

 

Moving on to the social aspect, it is common for rural Wisconsinites to entertain themselves and rely on get-togethers as the only “fun” thing to do. (These get-togethers largely resemble the many basement scenes in That 70’s Show, which is based on the life of teenagers in rural Wisconsin). As established above, you can find alcohol anywhere in America’s Dairyland. However, urban areas have more alcohol-free activities to keep people entertained. Some rural Wisconsin counties rely on tourism, but the without the population to keep alcohol-free activities open year-round, the off-season only increases alcohol access. For example, Door County (Population 30,369), known as “the Cape Cod of the Midwest,” is a top summer destination for camping, fishing, lake life, and family fun. Yet when summer tourism has reached its end, many of the tourist attractions close. The only things that survive being open during the winter months are the alcohol establishments. For perspective, Door County has one liquor outlet for every nine residents. 

 

The combination of cultural, legislative, and societal factors, alongside high rates of mental health issues and low access to resources paves the way for generational alcoholism. Children—myself included—start drinking at a young age. This behavior is normalized, accepted, and in some cases legalized in Wisconsin. A quick Google search will pull up article after article on Wisconsin’s drinking culture and almost anyone from there will second it with first-hand accounts. As these children grow up, their drinking habits often become more alarming. Alcohol becomes easier to access and afford, punishments for drinking decline, and reasons to drink increase. Urban centers get to experience different lifestyles and have a better chance of changing their drinking habits. However, those in rural areas may see this drinking culture as normal behavior, because they haven’t experienced any other way of living.

 

As bizarre as it sounds, I am so grateful for the COVID-19 lockdowns because prior to that, I was an alcoholic. I started drinking when I was nine, my mom giving me a shot to calm me down or cure a sick throat. By the time I was 13, I had replaced Mountain Dew with beer. When I went to college, I could outdrink anybody, and I was proud of it. When the lockdown happened, I couldn’t go to bars, the stores were sold out of liquor, and I didn’t have anyone to drink with. I was an essential worker at the time, so I picked up extra shifts and filled my time with four jobs instead of filling my void with alcohol.

 

I will always be grateful for this time because it allowed me to break the cycle, culture, and tradition of alcoholism that was passed on to me. I can’t say the same for my friends and family, but their bootstrap mentality is a post for another time.

Rural Policing (Part I) : Constitutional sheriffs

As we have discussed in previous classes, rural America is suffering from a shortage of "professionals" such as lawyers and judges. Also, as discussed in other blogs, there is a shortage of doctors and teachers. But rural areas also suffer from a lack of police officers, which adds to the interwoven criminal justice problems already faced by rural Americans, as discussed in these blogs featuring police killings, here, here, and here. This post will discuss other unique policing problems that affect rural Americans. 

As of 2022, there has been a shortage of new police recruitment. This police shortage is affecting rural towns first and hardest.   As discussed in the Calmatters article, policing shortages partly occur because of the warranted negative stigma regarding policing. The result of this shortage, however, can have devastating consequences and is affecting people in places like Tehama County, California first. For instance, officers there responded to a 911 call with, "Sorry, we can't make it; handle it yourself." 

Further, deputies near the Tehama Reserve have not responded to immediate threats of violence or active home break-ins. These instances of police inaction, as discussed in other blog posts, are likely exacerbating rural America's problem with gun violence, as deputies advise fearful residents they cannot reach to protect themselves by "get[ing] a shotgun and a dog." 

Advocates and experts alike advise that police shortages will only be overcome once policing practices are completely reformed. But another aspect of policing that may benefit from reform is the Sherrif system. A growing issue in rural America is this new wave of self-described constitutional sheriffs, who claim that because they follow the doctrines of the Constitution, they do not need to enforce laws newly enacted by Congress or even their own state legislature. For instance, multiple rural constitutional sheriffs in Illinois, Maryland, Colorado, and New York, have issued statements claiming they will not enforce new gun control laws. 

An added layer of complexity to this issue regards the differences between police and sheriffs. For starters, sheriffs usually respond to incidents outside of city limits. Sheriffs are also county elected officials who may only be removed from their positions of power through future elections. While Police officers work mainly in urban areas, are hired by the city, and can be fired for not meeting job expectations. Because of the uniqueness of the sheriff system, self-proclaimed constitutional sheriffs say that they act in accordance with the wishes of those who locally elected them. However, "constitutional sheriffs" lack actual legal backing for their belief as laid out in James Tomberlin's article "Dont Elect Me" from the Virginia law review, "the sheriff is independent of the county and is actually, in many important ways, an agent of the state."

Yet, despite the "constitutional sheriff's" lack of legal standing, Tomberlin admits, "The sheriff’s hybrid state-and-local status creates misalignments between different levels of government that obstruct efforts to hold the sheriff accountable." How, then, can we hold these elected officials accountable if rural people continue to vote for them and agree with their actions? Could there be some truth behind what these sheriffs are saying? What happens when states also support these constitutional sheriffs? 
As Jessica Pisko, an independent journalist and lawyer writing about the white supremacy behind the sheriff system, reports, Texas allows sheriffs to use "constitutional sheriff seminars" to complete their continued education training, implying support for these sheriffs.

On the other hand, how do we uphold democracy when we tell people that what they want for their towns does not matter? While I disagree with the sheriff's anti-gun control sentiment, I see myself agreeing with a county in Miami that refuses to enforce Governor DeSantis's anti-LGBT laws. 

Ultimately this is a complex issue to tackle. I do not think our society can function without a governmental system that enforces enacted laws while addressing the grievances of those negatively affected by unjust laws. And I believe that the "Constitutional sheriff" is a problem that needs to be solved quickly as new waves of these sheriffs claim that they can "investigate presidential elections," something that will ultimately undermine the democratic system they proclaim they uphold. 

Black farmers & land loss in the Black Belt

The Justice for Black Farmers Act, introduced into Congress this year aims to address the history of discrimination in federal agricultural policy. This Act represents a social phenomenon where Black farmers have lost land throughout history due to histories of racial discrimination, Jim Crow policies, and discriminatory lending practices. This Act aims to provide debt relief and create a land program to encourage Black farmers and protect remaining Black farmers from further land loss. To truly understand the significance of this Act and its relationship to rural America, we have to take a look at the rural landscape and delve deeper into the historical roots of slavery and Black land ownership.

Forty-six million people are currently living in rural America, comprising 14% of the U.S. population. This population is also associated with a large swath of land,  97% of the nation's territory. Compared with their metropolitan counterparts, non-metropolitan economies depend more on agriculture, with the industry accounting for nearly 17 percent of employment in rural areas according to the Center on American Progress.  Agriculture can play a key role in the rural economy contributing to about 5% of the GDP.  Embedded within the agriculture sector is a racial hierarchy that led to the Black land loss, and which motivated attempts to remedy it. 

Rural communities are home to people of color who can often be erased from the dominant narrative of rural America. Understanding the history of some of these communities can help address harm and bring equity to these areas. Focusing on Black farmers specifically within the Black Belt, demonstrates how discussing spatiality and geography as a component of identity can be useful in determining how to shape our understanding of rural America and the people of color within it. 

The Black Belt is a region located in the Southern United States. It includes around 623 counties from Alabama, Arkansas, Florida, Georgia, Louisiana, and Mississippi to North Carolina, Tennessee, Texas, and Virginia. According to the Black Farmers Network, the older meaning of the term comes from the 1820s and 30s when it used to mean the rich dark soil in which white settlers planted cotton and built plantations.

First used to designate a part of the country that was distinguished by the color of the soil, the term has now come to refer to the large number of Black people who were enslaved there. Since the valuable, fertile land was controlled by rich whites, it was a source of Black slave labor who worked the land. Enslaved people then became the majority of the population over the course of the 19th century when more than 1 million enslaved people were transported and sold to the Southern states. In 1970, the US' first census recorded the Black population as around 760,000 people and by the time the Civil War started in 1861 the population had reached 4.4 million. Black free people only made up about 2% of this population. Slavery continued to be the dominant status for Black people in the Black Belt until the Emancipation Proclamation when formalized slavery became transformed into de facto racial codes.

Black land ownership peaked in 1910 when Black people accessed 16 to 19 million acres of land. The number of Black farmers also peaked at this time with nearly 1 million producers on Black-operated farms according to the same source above. However, these numbers soon began to decline. However, after the 13th Amendment "officially" ended slavery,  the extension of it remained in the form of Jim Crow and Black codes continued to reinforce white power over the land. This prevented the accumulation and transfer of intergenerational wealth. According to Inequality.org, Black people, today, make up 13% of the U.S. population but only own 1% of rural land, a striking inequality. 

Black land loss is important in understanding why geography matters. Racism has fueled Black land loss. This has taken the form of limited access to capital because of discriminatory lending practices, redlining, gentrification, lack of legal wills that can facilitate property transfers, federal policies that excluded Black people from land purchases such as the Homestead Act, and more. "Farming in the United States is enmeshed with both racism and capitalism in a way that has had a profound impact on who owns, accesses and benefits from farmland" according to Megan Horst, writing on Eater. As of 2021, just about 1.4% of farmers identify as Black compared to 14% in the 1900s. 

The effects of the Black Belt slave economy are still felt by people of color who reside there. Formalized slavery has been transformed into substandard housing and education as well as poverty. According to the University of Alabama's report on Poverty, Housing & GDP in Alabama's Black Belt, all 25 Black Belt counties are among the top 35 counties with the highest poverty rate in the state. Black Belt counties have a poverty rate of around 30% while non-Black Belt counties have a poverty rate of 14% a significant disparity according to the same report.

To address the issues that those in the Black Belt face, and issues that Black farmers in rural America face, it is important to consider spatiality and geography. After all, Black people were enslaved and brought to the United States to grow the economy of the Deep South. Discussing rurality thus necessitates discussion of the economy, agriculture, and history.

In recent years, in the judicial and legislative scene, there has been some attempt at repair. The 1999 civil rights case Pigford v. Glickman resulted in a settlement of $1.15 billion in damages to thousands of Black farmers including those from the Black Belt. Black farmers alleged racial discrimination in farm loan assistance and allocation in their complaint.  Ultimately, we need to repair the ongoing harms associated with our deep-seated history of slavery and colonialism. We need to ensure that Black farmers can access economic opportunities to build their families and livelihoods. 

The rural vote and interest convergence

In Brown v. Board of Education and the Interest Convergence Dilemma Derrick A. Bell, Jr. analyzes Black people's ability to achieve civil rights victories only when satisfying an "interest convergence." The interest convergence he describes happens when the political and social aspirations of Black Americans, or any marginalized group, aligns with an interest of upper class, decision-making, white Americans. Only when this happens, he states, will there be any changes made for marginalized groups. This is an interesting way to analyze the rural vote. 

One of the first questions we discussed in our class about the rural vote was basically: Why do we even care about the "rural vote?" Obviously, we are taking a class about Law and Rural Livelihoods so that is one reason. The researchers, statisticians, journalist, etc. that write about the rural vote, however, are not in our class but they still spend a lot of time and effort analyzing this topic. Moreover, many politicians seem to care, at least as of lately. This is because rural Americans refusal to blindly support the Democratic party has allowed for an interest convergence. 

We also discussed the commonly held idea that these people are voting against their own self-interest. After all, as Sara Smarsh's Aunt Pud says in Heartland, "The Democrats are for poor people, and the Republicans are for the rich." Although I agree with Aunt Pud, if rural Americans continuously showed up for Democrat candidates, would these candidates still have the same motivation to win them over as they do now? Probably not. In other words, by refusing to give loyalty to the Democratic party, rural Americans made their interests converge with the ruling class in a way that actually better fulfills their self-interests in the long run.

After Trump's 2016 election, political discourse began acknowledging the "forgotten Americans." Isabel Sawhill's What the Forgotten Americans Really Want--and How to Give it to Them describes this group as people without a college degree and lower income. She also notes that they represent thirty-eight percent of the working age population. She describes their issues with feeling like the government is out of touch and like current policies are not reflective of the values held by forgotten Americans. 

Bill Hogseth discusses the rural vote in Why Democrats Keep Losing Rural Counties Like Mine. He states that while roughly two-thirds of rural voters voted for Donald Trump, in his opinion it wasn't because there was a lack of Democratic organization in these areas but because the Democratic Party "has not offered rural voters a clear vision that speaks to their lived experience. The pain and struggle in my community is real, yet rural people do not feel it is taken seriously by the Democratic Party."

By not just refusing to vote but voting overwhelmingly Republican, rural voters have created an interest convergence between their wants and the wants of both parties--to win elections. Now, politicians on both sides have no choice but to take their demands seriously and show tangible ways they will improve rural lives.

This blog, by Professor Pruitt, discusses how Democrat candidate John Fetterman's "every county, every vote" strategy secured him enough votes to win the senate race in Pennsylvania. 

Most people in my life outside of school, who are working class, don't vote. The ones who do vote mostly do so because I have lectured them of its importance, and they just ask me who/what I'm casting my vote for and go along with my choice. It is safe to say that nobody on either side cares very much about politics. 

Most of their ambivalence comes from similar feelings as the forgotten Americans Sawhill interviewed: that the government is "ineffective, untrustworthy, and out-of-touch." Although I would never advise anyone in my life to vote Republican (and honestly probably not forgive them for doing so, depending on how much I dislike the candidate), I can't help but admire the way rural voters fortitude has forced their issues into the hearts of legislators. I hope politicians remember the power that the working class has in every election.

“Failure to protect” laws fail victims of domestic violence: The case of Tondalao Hall

Previously on this blog, I have written about child welfare laws in rural areas, specifically as they relate to poverty and neglect. While the kinds of statutes that I discussed in that post were not exclusive to rural areas, they had greater negative impacts in rural areas. Similarly, “failure to protect” laws have more dire impacts in rural places. Because of the legal and medical deserts which pervade rural areas, survivors of abuse, who are often implicated in failure-to-protect cases, tend to have poorer outcomes within the criminal justice system. This is oftentimes due to the fact that they do not (or rather cannot) seek assistance “in time,” for authorities to not consider them to be contributing to abuse, as will be discussed below. For more information on legal deserts, you can start with the blog posts here, and here. As to medical deserts, a good beginning can be found here, and here.

In the dependency context “failure to protect” statutes are ones which allow CPS to allege neglect on the part of the victim-parent in a domestic violence situation. This occurs either because the child has witnessed the domestic violence occurring between the parent and another individual, or where one individual is directly abusing the child and the other party does not report it or take other measures to stop it. In dependency court this means that, at least in some states, a child can be removed from the care and custody of the victim-parent.

Twenty-nine states have specific failure to protect laws within their penal codes as well. Twenty-two states have more general provisions which allow for the interpretation of failure to protect as falling under the code sections. All but one of those states’ laws call for jail or prison time upon violation of the statutes. Six states’ laws call for life in prison, depending on the severity of the abuse. These six states are all rural: Nebraska, Missouri, Oklahoma, New Mexico, West Virginia, and North Carolina. Other states call for the equivalent, with sentences of fifty years or more. These are all also largely rural, with states such as Texas,Tennessee, Iowa, and Indiana, making up the list.

Oklahoma, noted above as allowing life imprisonment for “failure-to-protect,” has a fairly standard statute which states: “any parent or other person who shall willfully or maliciously engage in enabling child abuse shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections not exceeding life imprisonment.” It continues to explain that “failure to protect” a child from abuse, constitutes abuse under this statute:

as used in this subsection, ‘child abuse’ means the willful or malicious harm or threatened harm or failure to protect from harm or threatened harm to the health, safety, or welfare of a child under eighteen (18) years of age by another, or the act of willfully or maliciously injuring, torturing or maiming a child under eighteen (18) years of age by another.

Laws such as these, which allow for removal of children and penalization of victim-parents, are deeply flawed. They create more issues for children and parents than they solve. To start, removal of children from non-abusive parents in “marginal cases,” such as ones where the only issue is witnessing of domestic violence, creates severe medical, psychological, and sociological issues for the children. In the short term, family separation can cause developmental regression, difficulty sleeping, depression, and acute stress. In the long-term it can cause chronic health problems such as cardiovascular disease, hypertension, obesity, and decreased longevity.

Further, studies show that removal in such instances leads to higher rates of delinquency and teenage births, and lower earnings as adults for the children involved. Longitudinal studies have found that removal into foster care also leads to adult arrest rates two to three times higher for children in marginal cases than for those who remained with their families.

As to those children that are not removed from their families, researchers have shown in those cases that children have poorer short-term educational and medical outcomes. For instance, children exposed to domestic violence had worse attendance and lower math and reading comprehension levels than their non-affected peers. One U.S. study also found greater weight increases for infants aged 6-12 months among mothers whose violence had ended at 6 months than those whose violence continued. A follow-up study found an increased risk for obesity at age 5 for those same children. However, given these issues are short-term, and that removal causes a greater host of issues long-term and overall, as discussed above, removal, which occurs with “failure-to-protect” laws may not be the answer to the problem. Still proponents often ignore this and give the main reason for their support of the laws as the high correlation between domestic violence and (direct, non-accidental) child abuse.

Several legal and social issues arise with respect to these laws. One of the greatest issues with such laws is the chilling effect they have on domestic violence victims to report the abuse, and to seek legal or medical aid. Generally, “failure to protect” laws create mandatory reporters out of the police officers who are responding to domestic disturbance calls, the medical professionals treating a victim’s injuries, and the aid workers in shelters and counseling centers. This leaves victims with no one to go to, because they fear either having their children removed from them, or fear being arrested themselves. In rural areas, where medical, legal, and social resources are already depleted this further alienation of domestic violence victims creates even greater problems. If rural victims were already less likely to come forward, “failure to protect” laws make it completely unthinkable for them.

Another major issue with such laws is their discriminatory effect. On average, 1 in 4 women are victims of domestic violence, compared to 1 in 9 men. This means that more often than not, women are the ones being charged with or accused of “failure to protect.” This effect is particularly visible in Oklahoma, which imprisons more women per capita than any other state or country, while also ranking in the top five states for women experiencing the most extreme domestic violence from their partners. In fact, more than half of the incarcerated women’s population in Oklahoma Are survivors of domestic abuse.

A story that exemplifies many of the problems with failure-to-protect laws, is that of Tondalao Hall. Almost 20 years ago, Hall, who was about 20 at the time, was sentenced to 30 years in prison for failing to protect her children from abuse at the hands of her partner, Robert Braxton. Braxton testified in court that he had abused their 3-month old child, breaking her rib and femur, stating that he had grabbed her “too tightly” and “cranked” her leg. Later, hall testified that on top of abusing their child, Braxton had choked, punched, and grabbed her by the neck on several occasions. Despite the fact that enforcement officials conceded that Hall never abused the children herself, they stated that she allowed Braxton to watch the children, and that she took too long to report the abuse.

However, prosecutors failed to show any evidence that Hall knew of the abuse to her children, and they failed to consider the fact that she had actively been planning an escape from Braxton at the time the case arose. Braxton negotiated a plea deal, bringing his sentence down to 10 years total: 2 years in prison, and 8 years probation. But, Braxton got credit for time served the day he pleaded and walked free. Hall was released three years ago, at the end of 2019, only after a unanimous vote by the Oklahoma Parole and Probation Board. Her children were 15, 17, and 19 by the time of her release.

Worse still is that Tondaloa Hall is not an exception, she is the rule. As of three years ago, in Oklahoma alone, 41 women were imprisoned under failure-to-protect laws. Fourteen of them received greater sentences than the abuser themselves. It is imperative that all states, not just ones with greater rural populations, get rid of their “failure to protect” laws. On top of the issues discussed above, these laws blame victims, and therefore perpetuate a culture of leniency towards abusers as it is “not their fault,” they abuse. Further, these laws actively re-victimize the survivors of domestic violence, taking away any and all autonomy from them. In such states the survivors cannot seek aid when they want to, safely plan an escape, or support or raise their children. This is because, with everyone from whom they may seek aid being designated a mandated reporter under the laws, they cannot control their entrance into a new life, in the same way they cannot control their current one under the fist of an abusive partner.

It is understandable that states want to be harsh on child abuse. If that is the goal, however, they should be harsh to the actual abusers, not on those who are also their victims.