Launching a Book, Helping a Workers’ Movement

JANUARY 29, 2016
In the final months of 2012, investigators in Kenya found the battered and lifeless body of Peninah Nyambura, stuffed in a drainage ditch in Thika, a small industrial town 25 miles outside of Nairobi. Nyambura was the mother of a 13-year-old daughter. She was also a Kenyan sex worker, and hers was the fourth murder of a sex worker in Thika in two years.

The day of Nyambura’s funeral, more than 300 Kenyan sex workers converged on Thika to demand a police investigation and lead a peaceful protest, with Nyambura’s body lying in a hearse that followed. When the crowd reached the police commissioner’s gate, Nyambura’s daughter spoke out: “The murderer killed the person who put food on my table. He killed the only source of money for me to go to school. He killed the only person who supported me...” Police officers brandished their guns and threatened the sex workers with tear gas, but they continued to march.

Anti-prostitution scholars and activists have long argued that any exchange of sexual services for payment is an inherently violent and coercive act that degrades women. Professor Chi Adanna Mgbako does not tend to buy this monolithic argument. She contends that, in a world where a vast majority of workers have limited opportunities, individuals do make the rational decision to pursue sex work, and the abuses they experience don’t occur because the selling of sexual services is necessarily degrading or dehumanizing. The abuses are, instead, structural, including laws that criminalize sex work and the discrimination of the police.

Yet in the midst of the chronic violence and stigma, African sex workers have sparked a sex workers’ rights movement that continues to spread across the continent. For the past nine years, Mgbako has worked with the sex workers’ rights movement and its human rights components—experience that informs her new book, To Live Freely in This World: Sex Worker Activism in Africa, released earlier this month.

The book was officially launched on January 26 at Fordham Law with a panel moderated by Professor Clare Huntington, associate dean for research, and which included Kholi Buthelezi, the director of Sisonke, a sex worker advocacy organization in South Africa.

“I interviewed almost 200 sex workers, most of whom had been hairdressers, domestic workers, and factory employees,” Mgbako said. “They would tell me ‘I was making this much in my old job, but my friend was making 20 percent more doing sex work, so I started doing sex work. They didn’t see their work in black-and-white terms. Some aspects were empowering; some were exploitative.
    
“They were asking the question, ‘How do I have more power and control over my labor? How do I do this safely?’ It was really simple; it was about the accumulation of capital.”
Mgbako has long been interested in human rights, and she remembers particularly well during her law school days at Harvard a seminar course on international women’s rights, which covered female genital cutting, women’s increased political participation in her country, and reproductive freedom.

“The class on prostitution was different. Gone were the voices directly from affected communities that had so illuminated other parts of the course,” she wrote in To Live Freely. “Instead, we read a slew of articles by the New York Times columnist Nicholas Kristof on what struck me as his misguided efforts to liberate ‘sex slaves’ from brothels in Southeast Asia by purchasing them. We read nothing from sex workers themselves.”

Coming away from that seminal class with a fierce belief in the notion of community and individual agency, Mgbako determined to find the sex workers’ voices. One of her first allies was Buthelezi, who helped launch Sisonke in 2003 after a group of 76 sex workers from across South Africa decided to take responsibility for effecting the changes in working conditions and equal rights that they sought.

“The biggest challenges we face come from a lack of justice and accountability by the police. Without that, everyone feels like they can take advantage of you,” said Buthelezi, who will accompany Mgbako on a two-week book tour. “I took a phone call on Saturday, before I left for the States. One of the workers was with a client, and he did not want to use a condom. When she asserted herself, he beat her up and took her money.

“She went to the [police]station and was called to come back but now is afraid to go back because she could be arrested or threatened. Everyone knows we have nowhere to go if we’re hurt or abused. We try to educate and empower around basic rights.”

Mgbako’s book focuses on African sex workers who are engaged in what is traditionally viewed as prostitution—the in-person physical exchange of sexual services for money or goods—but she does not limit the workers to straight, cisgender women. Rather, Mgbako argues that the lesbian, gay, bisexual, and transgender community in Africa, as well as its growing visibility, has pushed the movement forward.

“Intersectional movement-building between African sex worker and LGBT organizing is rooted in many factors but especially in an emotional solidarity that has formed between two communities that have been othered and oftentimes discarded by their societies—a camaraderie among those who have fought against the notion that their lives don’t matter, that they aren’t worthy of rights, respect, and dignity,” Mgbako wrote in the book.

Sex work existed in Africa before colonialism, not the other way around, as sometimes stated in history books, Mgbako said. Anti-gay laws and anti-sex work laws came with colonialism. “Uganda, where the criminal code comes from the British code, has some of the most stringent anti-gay and anti-sex work laws in Africa,” she added.

Countries such as South Africa and Kenya, which have rich histories of activism against oppression, apartheid, and colonialism, have proved the best launching pads for sex worker–led movements. The activism has also taken hold, but more slowly, in countries with weaker civil societies and without strong histories of social activism, like Mauritius and Botswana, while the highly publicized and serious legal and social crackdowns against those viewed as gender and sexual deviants have fueled the movements in Uganda and Nigeria.

Sex workers across the world are aiming not for legalization of prostitution but decriminalization. In New Zealand, sex work has been decriminalized through the Prostitution Reform Act, which grants any citizen over the age of 18 years the right to sell sexual services on the street or in a brothel and guarantees sex workers’ rights through employment laws.

While African sex workers still have a long fight ahead, the response from human rights groups and international bodies has been positive. In 2013, Human Rights Watch, the world’s leading international human rights organization, publicly affirmed that it had “concluded that ending the criminalization of sex work is critical to achieving public health and human rights goals.” In its 2014 World Report the organization reiterated its “push for decriminalizing voluntary sex work by adults.”

Mostly, however, Mgbako said that through the book, she and her students have learned about redefining their scope of human rights.

“Many of the sex worker activists profiled in this book have experienced horrendous abuse. But people who have experienced abuse are not bereft of agency,” Mgbako said. “A history of personal trauma may—or may not—directly inform people’s economic choices, but it should never be used as an excuse to negate their right and ability to speak about the truth of their own lives. There are no broken people in this book.”

A Good View, Judging from the Plains

JANUARY 27, 2016

Twelve years into her tenure as a U.S. district judge for the Northern District of Oklahoma, Hon. Claire Eagan ’76 had already put her signature to many controversial decisions: a November 2003 ruling to shut down Rx Depot, which acted as a middleman between U.S. customers and Canadian pharmacies; a September 2006 civil rights judgment against an Oklahoma manufacturer for human trafficking; and a $5.1 million labor suit settlement against Wal-Mart for designating itself the beneficiary of several employees’ life insurance policies.

None, however, compared to the 29-page opinion Eagan issued on August 2013 as a new judge on the Foreign Intelligence Surveillance Court. The opinion upheld the constitutionality of the National Security Agency’s collection of “all call detail records” from Americans’ phones. In the immediate wake of former NSA contractor Edward Snowden’s leak of this same type of surveillance to several newspapers, Eagan found that, as long as the government could show relevance to an authorized counterterrorism investigation, the collection of metadata records remained justified.

“To me, the logical culmination of a successful career was government service—to contribute to the country and judicial system based on knowledge and experience and in appreciation for the opportunities given me.”

Eagan then took an uncommon next step: She asked the court to make her own opinion public. “This court is mindful that this matter comes before it at a time when unprecedented disclosures have been made about this and other highly sensitive programs,” she wrote, explaining that the bulk collection was used to identify “connections between known—and unknown—international terrorist operatives.”

Eagan added that Congress provided for judicial review of Foreign Intelligence Surveillance Act orders, ultimately to the U.S. Supreme Court, which provided a “substantial and engaging adversarial process to test (their) legality.”

For critics of the NSA program, Eagan’s ruling—and her decision to publicize it— illustrated a hasty effort to justify an ill-conceived program. However, for those who have known Eagan as an attorney and then a federal judge in Oklahoma, the 2013 FISA ruling proved another example of her “absolute neutrality—no predisposition in any sense—and superb written opinions,” according to Joel Wohlgemuth, a Tulsa trial attorney who has appeared before Eagan for the past 13 years.

Friends and foes of Judge Eagan, both in and out of the courtroom for her past 40 years in Tulsa, tend to acknowledge two things about her: 1) She readily introduces herself as a native New Yorker and 2) She is a prompt, dignified, no-nonsense practitioner of the law. She keeps her docket as current as the cases before her allow; she addresses every person before her court—plaintiff or prisoner—with respect; and everything she writes, whether a key decision or answers to a journalist’s questions, comes in brief format, 1.5-spaced, justified.

“The practice of law provides meaningful employment, a sense of pride and satisfaction in helping others, and oftentimes substantial income. To me, the logical culmination of a successful career was government service—to contribute to the country and judicial system based on knowledge and experience and in appreciation for the opportunities given me,” Eagan said. “Being a litigator is very hard, and after a while, you ask yourself ‘What kind of an impact am I having?’ Most cases involve large, corporate clients where you’re attempting to protect their patents or enforce their contracts. Whatever talents I had, I wanted to use them to solve the issues that are most pressing to society today.”

On the bench since 1998 (and the first and still only woman appointed to the Northern District of Oklahoma), Eagan has staked a claim to the title federal judge for her entire career. Born and raised in the Bronx, she attended Trinity University in Washington, D.C., before enrolling at Fordham Law. She accepted a summer clerkship after her 1L year with Allen Edward Barrow, the chief judge of the Northern District, on the recommendation of a “friend from Tulsa who touted the city and its oil and gas industries.

“Tulsa is a fairly progressive place; the only thing I had to get used to was chicken fried steak—and being called ‘Ma’am.’”

After law school, she had a choice: stay put in New York City as an associate attorney at a law firm where she had worked following her second year, or go West, where a yearlong federal clerkship with Barrow awaited. She felicitously chose the latter. After the clerkship, she joined Hall Estill, one of Oklahoma’s largest corporate law firms, determining that a “large Tulsa practice offered the same challenges as, but quicker advancement than, a large New York practice.” She stayed in Tulsa and practiced litigation for 20 years before the dream of a federal judgeship came within reach.

Selection for the federal bench does not occur overnight, and neither does appointment. For 10 years before her nomination, Eagan applied for openings regardless of the party in power. On September 4, 2001, President George W. Bush—on the recommendation of Republican senators Don Nickles and Jim Inhofe—chose her for the post vacated by Thomas R. Brett. She was confirmed by Congress on October 23, appointed by Bush on October 24, and sworn in on October 25.

“Claire’s judicial demeanor is not only a breath of fresh air but also highly sophisticated from the standpoint of the judge/lawyer/party/witness/juror dynamics,” Wohlgemuth said. “She maintains absolute decorum in the courtroom, observes the rule of law notwithstanding any extraneous issues or media attention, and respects the judicial system while seeking improvements in several issues.”

Eagan’s reputation for fairness could have played into Supreme Court Justice John Roberts’ decision to appoint her to the Federal Intelligence Surveillance Court in 2013. Known for its secrecy, the court hears applications for orders for physical search, electronic surveillance, pen registers, and trap and trace devices as well as the production of tangible things related to foreign intelligence. Other than confirming her travel to Washington, D.C., four or five times per year, neither Eagan nor her staff can say much more about the job.

Prior to FISC, Eagan chaired the Committee on Defender Services of the Judicial Conference of the United States, which acts as the equivalent of a board of directors for the administrators of the federal public defender system and also provides indigent representation for more than 90 percent of all federal criminal defendants. On her volunteerism—and her candor with criminal offenders—her long-term clerk, Nick Haugen, said Eagan “takes a lot of care to know the defendants and treats them as equals. She’ll often go lower than the recommendations, and if people violate their probation or supervised release, especially with drugs, she’ll consider sending them to treatment. She doesn’t necessarily send them back to prison.”

According to Haugen, Eagan sees a little of everything in the Northern District, but last summer proved one of the most intense. Nine members of the United Aryan Brotherhood, a violent, “whites only” prison-based gang, pleaded guilty to charges of conspiracy, racketeering, and possession with intent to distribute methamphetamine. One member admitted to coordinating the firebombing of a car belonging to a person he believed had stolen from UAB’s meth enterprise, while three pleaded guilty to participating in the May 2013 maiming of a former UAB member—an act that involved the perpetrator restraining the victim while additional gang members used a heated knife to burn off the victim’s UAB neck tattoo.

“You cannot make up the fact patterns in some of our cases. Still you’re dealing with liberty and lives, and all of a person’s Constitutional rights,” said Eagan, who recently sentenced one of the UAB members to nearly five years in prison for violence committed in aid of racketeering.

“Post-Booker, [United States v. Booker] it’s a more pleasant task to sentence, now that we can take into account motions to vary from the advisory guidelines,” she said. “But we still have mandatory minimum sentences, and sometimes I have to look at the defendant and say ‘I’m sorry, there’s a reason for this, and I don’t have the flexibility to change it.’”

As an Easterner who found a life in the West, Eagan urges any Fordham Law graduate with whom she comes into contact to give it a try.

“One of my disappointments is that more qualified Fordham students do not apply for the clerkship. I receive more than 300 applications each year for the one-year term position, so I am able to select the cream of the law school crop—top 10 percent and law review,” Eagan said, mentioning that her 2017–18 clerk will be a Fordham alumnus.

“I realize that Oklahoma is beyond the Hudson River, and some may not be able to find it on a map, but a federal clerkship anywhere in the country is worth a one-year sabbatical from the East Coast,” she said. “Plus, more Fordham grads will make the West a better place!”

Adrian Brune

Vision and Values

Matthew Diller returns to Fordham Law as a Dean with big plans and bigger principles.

In 2009, New York State’s judicial system was facing a crisis. Budget cuts had severely hampered the capacity of the courts and had diminished the resources of legal services providers. Low-income New Yorkers who needed the courts to preserve their homes, retain their health care coverage, and secure their children’s educational rights were not being served. In confronting courtrooms overflowing with indigent clients in financial free fall, the state’s newly appointed chief judge, Jonathan Lippman, needed a team of leaders in the legal profession to help devise solutions. He appointed a task force. Matthew Diller figured as one of Chief Judge Lippman’s central players.

By then, Diller had ascended the academic ranks from professor and Associate Dean at Fordham Law to Dean at the Benjamin N. Cardozo School of Law at Yeshiva University. A former staff attorney with the Legal Aid Society, he had worked to restore Social Security benefits to those cut off during the Reagan administration and had fought the State of New York to provide adequate housing grants to families on welfare. In the 1990s, Diller had written extensively on the plight of the poor in the courts and overseen the development of several public-interest legal clinics. In other words, he was the perfect person to serve as chair of the task force’s Law School Involvement Working Group, for which he assisted with a conference and a report that examined how law schools could play a role in access to justice issues.

Now, as Dean of Fordham Law, he will integrate those same justice-centered principles into his leadership of the School.

“Fordham Law has long been committed to the ideal of access to justice,” Diller says. “Thousands in our society do not have the benefit of legal representation—even on issues that are critical to their lives. Our Law School is an engine for justice. We teach students the value of service and the importance of justice. We provide opportunities to act on these values.”

Diller is committed to expanding service-oriented initiatives and using the collective efforts of the School to bridge the lack of access to the justice system in our society. It is an ideal he has been passionate about for the entire length of his career.

“Matthew Diller fits wonderfully well into the idea of a school that emphasizes service. He is a fighter for equal justice and brings a total understanding of the ethos of our profession,” Chief Judge Lippman says. “In a world where economic prospects for lawyers are certainly improving, he must instill in the DNA of our lawyers the idea of service and correct a disconnect: that it’s not about getting the highest-paying job, but helping the most vulnerable of society.”

Diller is committed to expanding service-oriented initiatives and using the collective efforts of the School to bridge the lack of access to the justice system in our society. It is an ideal he has been passionate about for the entire length of his career.

“Matthew Diller fits wonderfully well into the idea of a school that emphasizes service. He is a fighter for equal justice and brings a total understanding of the ethos of our profession,” Chief Judge Lippman says. “In a world where economic prospects for lawyers are certainly improving, he must instill in the DNA of our lawyers the idea of service and correct a disconnect: that it’s not about getting the highest-paying job, but helping the most vulnerable of society.”

Local School with Global Impact

Overseeing a community of more than 250 professors and administrators, guiding a 1,300-member-strong student body of diverse backgrounds and experience, setting fundraising goals to address economic exigencies, and respecting the century-old traditions of an institution while simultaneously moving it forward—the responsibilities of the Fordham Law Dean are not for the faint of heart. Fortunately, Diller has a Fordham-forged constitution.

“Fordham Law is where I grew up, and it still has many of my mentors and many of my colleagues,” says Diller, who first joined the faculty in 1993. “Returning to the Law School after six years, I am struck by how distinctive Fordham is, how close-knit a place it is. We are a law school that is not just in New York City but of New York City.

“Like New York City, we are diverse and intensely local, yet we have a global connection. We emphasize engagement—with the key legal issues of the day—and the impact we have on the world around us.”

Aiding the Next Fordham Lawyers

While Fordham Law boasts a beautiful new nine-story home, Diller must, among other priorities, attract a talented and diverse student body that will keep the building “vibrant and humming with activity.” Fordham remains one of New York’s selective law schools, and it must keep pace with its peers in terms of financial aid. While the School awards three times the amount of financial aid it did seven years ago (the average grant in 2015 was 25 percent larger than in 2014), student-cost considerations remain a top priority.

Diller is committed to keeping a Fordham Law education attainable for anyone with a mind for the law and a heart for service. “Enabling students to afford the benefits of a Fordham education is essential to continuing to build our community into the future,” he says. To that end, he recently unveiled an ambitious fundraising project—the Dean’s Scholars Initiative—with a goal of $25 million in scholarship funds, $10 million of which will go to the endowment, providing $10,000 in permanent financial aid to 40 students per year in perpetuity. The remaining $15 million, directed to an immediate impact scholarship fund, will provide $10,000 in financial aid resources to 300 students annually.

Business Matters

In addition to addressing the affordability of a legal education, Diller is also concerned with reimagining its academic structure to reflect the realities of a changing legal market. Fordham Law has already added courses that focus on public law, international law, and interdisciplinary understandings of law and legal problems, as well as expanded clinical courses and externships in order to expose students to more of what lawyering involves.

Diller wants to expand this practice-oriented pedagogy to Fordham’s corporate and finance law program. “We must teach students the skills they will ultimately be using in corporate law settings, not simply feed them the knowledge of the field,” he says. Diller is also interested in integrating more transactional work into the clinics, which have traditionally been focused on litigation.

Diller displays a deep appreciation for the importance of corporate and finance law and knows that Fordham is well positioned both academically and geographically to continue to burnish its reputation in these areas. “Fordham Law School is among the great business law schools in the country,” he says. “I am excited to work with the Corporate Law Center and our superb corporate law faculty to deepen the School’s ties with law firms large and small as well as in-house counsel.”

His excitement comes at the right time. Many law firms are now looking to law schools to prepare students for practice in a more comprehensive way than in the past. Firms are no longer willing to pay for what they view as on-the-job training. Law school deans, then, must look to adjust the curricula accordingly while remaining true to their core academic principles. Diller is responding to these demands.

“It is critical that our academic program be able to flex and adapt to the evolving nature of the legal profession,” he says. “Fordham lawyers are prized for being not only smart but also practical, and our curriculum must reflect equally well these dual qualities of our students.”

“Matthew has a willingness to take a hard look at things, and he’s interested in solving problems,” says Proskauer Rose Partner Michael Cardozo, who served as former Corporation Counsel for the City of New York under Michael Bloomberg.

Seeds of Justice

Diller’s problem-solving approach to the law and legal education stems from his own personal and professional experience. A product of New York City public schools, Diller graduated magna cum laude from Harvard Law in 1985. He then clerked for Judge Walter Mansfield of the Second Circuit of New York and later took a job at the Legal Aid Society of New York. While he was at Legal Aid, Diller’s eyes were opened to the noble function the law could play in the lives of New York City’s poor. “Growing up middle class in Queens, I had never seen or experienced that level of poverty in New York City. It had a profound effect on me,” Diller says. “I also had the opportunity to see the difference a great lawyer could make in these individuals’ lives. Lawyers were consistently trying to find solutions where they didn’t exist before.”

Diller now calls Park Slope home—he has lived in Brooklyn for the past 30 years—and is married to Katherine “Kit” Kennedy, who codirects the energy and transportation program at the Natural Resources Defense Council (and who has taught at Fordham Law as an adjunct). They have two sons, Peter, a freshman at Kenyon College, and Michael, who works at the Center for Court Innovation, a nonprofit headquartered in New York that designs programs and performs research to help create a more effective and humane justice system.

People turn to lawyers for help with some of the most difficult and important issues they face in their lives. The decisions made by lawyers have profound consequences, and at Fordham we want to instill in our students that sense of impact—the fact that they can make a real difference in people’s lives.

At Legal Aid, Diller worked in the Civil Appeals and Law Reform Unit, where he took on several nearly unwinnable cases during the “first full flowering of homelessness in New York.” As a new lawyer, Diller was part of a team that argued in McCain v. Koch that the city had failed to provide adequate shelter or develop standards governing shelter for families. A few years later, in Jiggetts v. Grinker, Diller and his team won on appeal permanent and injunctive relief for families whose housing grants didn’t bear the market value costs of their apartments.

“All these cases were very formative in my career. They gave me a sense of the power of the law,” Diller says. “People turn to lawyers for help with some of the most difficult and important issues they face in their lives. The decisions made by lawyers have profound consequences, and at Fordham we want to instill in our students that sense of impact—the fact that they can make a real difference in people’s lives.”

An Academic Home, and a Homecoming

After seven years at Legal Aid, Diller began teaching civil procedure, administrative law, and public interest law at Fordham in 1993. He eventually became the Cooper Family Professor of Law and codirector of the Louis Stein Center for Law and Ethics. Ten years later, he moved into the Dean’s Suite as the Associate Dean for Academic Affairs. One of his mentors, Distinguished Professor Michael M. Martin, was also serving on the decanal staff at the time. “Working with Matthew in such a capacity was a pure pleasure,” says Martin, who later served as Dean of the School. “His understanding of the faculty’s needs was unmatched, and he was extraordinary in working with everyone toward achieving the School’s full potential.”

In 2002, Diller received the Eugene J. Keefe Award for outstanding contributions to the Law School. Dean William Michael Treanor awarded, in 2009, a departing Diller the Dean’s Medal of Achievement, calling him “the heart and soul of this Law School” for the past 16 years. Later that year, Diller became Cardozo Law’s sixth Dean. “I knew that Cardozo was a remarkable school; I had watched it develop from my office 50 blocks away,” Diller says. “Cardozo has incredible scholars and a very collegial atmosphere, and I was lucky to have been a part of it.”

In the summer of 2014, when Michael M. Martin, who had been Dean of Fordham Law since 2010, decided to step down, the University began a national search to find his successor. The School fielded nearly 700 CVs and hundreds of additional informal inquiries, according to search committee chair Professor John D. Feerick (who himself had been dean from 1982 to 2002). Ultimately, Joseph M. McShane, president of Fordham University, tapped Diller.

When Diller was officially appointed in January 2015, Father McShane cited his “rare combination of vision, practicality, experience, integrity, and a deep and proven commitment to justice and the service of others” as qualities that made him the ideal candidate to lead Fordham Law into the future. “In Dean Diller we have someone who has met many of the challenges facing legal education in the current climate and who has built a reputation as a strong fundraiser. Moreover, he is a consensus builder who can bring people together to move an institution forward.”

Outcomes and Influence

In moving Fordham Law forward, Diller wants to focus on the preeminence of the faculty and the important work of its centers. “I will work to expand our impact by supporting superb faculty scholarship and the work of our centers and institutes—to get our ideas out into the public sphere and into the hands of those who make critical decisions that shape our legal system,” he says.

“In the past, Matthew’s good judgment and unshakeable values were instrumental in helping direct the Stein Center,” says Sally Bellet ’76, whose grandfather Louis Stein ’26 established the center that bears his name. “Now he will use those same qualities to lead the Law School into an even brighter future.”

In addition to the work of the School’s centers, career outcomes are foremost in Diller’s mind, as the legal marketplace continues to recover from the larger economic downturn. While he is committed to carrying the Fordham message to traditional employers, he wants to encourage students to consider alternative legal careers in areas such as compliance, entrepreneurship, and fashion law, and will explore more partnerships with other Fordham University schools to foster cross-disciplinary job paths. Diller also wants to ensure the Law School “remains a good citizen to the city” and keeps its distinction as the go-to school for New York City government.

“Matt has that capacity to wade out in the swirling waters, be the center of calm, and cast away,” says Executive Director of the City Bar Justice Center Lynn Kelly, who worked with Diller at Legal Aid and, incidentally, knows about his penchant for fly fishing. “He’s a very hands-on litigator, yet he can step back and stand in the stream until he is ready to go for whatever comes by. His is a temperament well-suited for the era we’re in.”

In the End, Service

An era characterized by rapid change is not without its challenges, but Diller’s values are immutable and his perspective long-range. “Matthew views his role in a very broad way, that he is part of the pursuit of justice and that all of us in the judiciary and academia have part of that noble goal,” says Chief Judge Lippman. “He’s very much a part of this struggle to ensure that everyone gets a fair shake under the law.”

Chief Judge Lippman’s comments square perfectly with Diller’s unshakeable belief in Fordham Law and what is perhaps his most important priority.

“At Fordham Law, we engage in service—using our education, skills, talents, and passion—to help others who are facing pressing legal issues or who cannot otherwise accomplish their dreams,” Diller says. “We solve problems with clients at the center. This approach produces lawyers who are serious about the role of law in the world.”

–Adrian Brune

Behind Bars and Other Graphs

John Pfaff’s data-driven research reveals an original theory of the rise in the U.S. prison population.

Last July at the Federal Correction Institution El Reno in Oklahoma, President Barack Obama peered into a nine-by-ten-foot cell and had a hard look at life on the inside: three bunks, a seat-less toilet, a small sink—and an existence he acknowledged he dodged “but for the grace of God.”

The first occupant of the Oval Office to visit a working penitentiary, Obama vowed to build support for a bipartisan overhaul of America’s penal system. He announced a federal review of the use of solitary confinement, called for legislation to reduce—or eliminate—mandatory minimum sentences, and advocated for early release for nonviolent offenders. The goal: to reduce the 2.2 million people in United States prisons.

A week later, Professor John Pfaff received a call from the New York Times seeking his input for an infographic on the realistic expectations for Obama’s Herculean proposals.

“The president missed a major opportunity to influence the current conversation on how to reduce incarceration. Looking at the overall prison population, most prisoners are in state prisons; only 14 percent are in federal prisons,” Pfaff says. “Even if we let out every nonviolent offender, we still wouldn’t get to the reduction he wants, or as significant a reduction in the number of prisoners as many people think.”

For instance, if all prisoners with drug-related charges were released, Pfaff maintains that the U.S. prison population would only decrease by 300,000 inmates, to 1.2 million, and it would still exceed that of China and dwarf that of Russia, the countries in the number two and three spots of the worldwide incarceration survey. The reality is that less than a fifth of state prisoners—about 16 percent—are serving time for nonviolent drug offenses, while more than half are incarcerated for violent crimes, he adds.

“Since 1990, 60 percent of the growth in state prison populations has come from locking up violent offenders.” In his rapid-fire style of speaking, Pfaff is able to discharge round after round of statistic-based obstacles to a problem that was oversimplified in a policy speech.

Pfaff’s intention is not to throw a wrench in one of the President’s legacy issues. He simply wants people to understand the data. When he began studying the numbers about a decade ago, he uncovered some novel truths about the prison population. Since then, in trying to understand the causes of the unprecedented 40-year boom in U.S. incarceration, Pfaff has steadily become one of the nation’s experts on the criminal justice system, its knotty problems, and potential fixes.

This ‘system’ is a poorly thought-out, sprawling mélange of competing institutions that at times do not work well together. People now have the impression that someone is putting people in jail and throwing away the key. But it’s distinctively more complicated than that.

“We treat the criminal justice system like some sort of coherent entity with defined goals; at the very least, we posit that those at the top of the political hierarchy use it to accomplish their own objectives, such as reducing crime or regulating and controlling the drug problem,” Pfaff says. “But this ‘system’ is a poorly thought-out, sprawling mélange of competing institutions that at times do not work well together. People now have the impression that someone is putting people in jail and throwing away the key. But it’s distinctively more complicated than that.”

The Problem with Prisons

Faced with a crisis that has swept the nation, politicians on both sides of the political aisle are trying to rein in, and reduce, the U.S. incarceration rate. Even conservatives who have long advocated for higher penalties have come to see the consequences for taxpayer costs of housing prisoners, especially with crime rates dropping.

Pfaff, however, says actors such as policymakers, journalists, academics, and the wider public have all generally accepted a “standard story” regarding the makeup of prisons today that is, as often the case with conventional wisdom, wrong in many important ways. At the heart of the commonly accepted fallacy lie five myths: the War on Drugs drives prison growth; most prisoners are not incarcerated for violent and property crimes; longer sentences contribute to overcrowded prisons; the “criminal justice system” is a coherent entity; and the politics of crime are uniquely dysfunctional.

Through his research, Pfaff has broken down the fivefold prison population explosion—from 320,000 inmates in the mid-1970s to a peak of 1.6 million in the mid-2000s—into two eras: a surge that took place between 1975 and 1991, due in some significant degree to a dramatic rise in violent and property felonies; and the steady uptick from 1991 to 2010, despite the decline of the overall crime rate. In the 1960s through the 1980s, violent crimes rose by 400 percent, and property crime rose by 200 percent. Soaring criminality “changed people’s attitudes toward punishment,” Pfaff says.

“What may really matter is that the Baby Boomers—a large, politically powerful bloc of voters—saw crime soar while prison populations fell and thought a causal connection existed. And this perception, whatever the real relationship, influences the politics of punishment to this day,” Pfaff says.

At least since 1994, the primary force behind prison expansion has been an increased willingness on the part of district attorneys  to file felony charges.

Over the past few decades, state legislators have also been passing many new, tougher sentencing laws. However, “if you actually look at time served by inmates in prison, it doesn’t appear to have changed that much,” Pfaff says. “We have good data going back approximately 20 years or so. About half of all prisoners who are admitted in a given year only spend about two or three years in prison.” While the laws look incredibly punitive—a maximum of 25 years for a class B felony—“you just don’t see people serving that amount of time.”

A key indicator that the War on Drugs had little to do with the burgeoning prison population came in 1990 when the number of people specifically incarcerated for drugs peaked at 22 percent.

“This meant nearly four-fifths of all state prisoners in 1990 were not drug offenders, and that number has steadily decreased,” Pfaff says.

Drugs could have important indirect effects, he acknowledges, such as playing a role in theft or aggravated assault. Prior drug arrests and convictions also often result in tougher sanctions or treatment for future non-drug offenses.

“But when policy experts and scholars argue that drug incarcerations are the primary source of prison growth, they are mistaken.”

The Unrecognized Actor

There are many players involved in the prison population drama, but Pfaff’s work has shown that the roles of most of them—higher judicial and executive positions such as judges, governors, and presidents—are not, after all, as consequential as generally assumed. Pfaff instead homes in on the previously inconspicuous part that prosecutorial discretion has played in enlarging the populations. Although police initially make the arrests, prosecutors decide whether to bring a case or drop charges, file a complaint as a misdemeanor or a felony, and command a prison sentence or a lesser punishment; in other words, prosecutors exercise considerable power. Since most cases are resolved through plea bargains, prosecutors—not judges or juries—negotiate whether and for how long a defendant goes to prison. Furthermore, the majority of these decisions happen almost entirely out of the public eye.

Pfaff says the probability of a district attorney filing a felony charge against an arrestee appears to go from about one in three in the 1990s to two in three by the end of the 2000s.

“At least since 1994, the primary force behind prison expansion has been an increased willingness on the part of district attorneys to file felony charges,” Pfaff says. “Defendants whom they would not have filed felony charges against before, they now are charging with felonies.”

Ask most criminal justice groups and they will tell you that powerful incentives—political ambitions, media pressures, and a culture of prosecutorial infallibility—can serve to induce prosecutors to act rashly (and sometimes unethically) in carrying out their oath of office. Pfaff doesn’t dispute this. The United States holds approximately 2,300 different local prosecutorial offices, with independently elected district attorneys and a lot of authority vested in the head lawyer. A 2012 report from the National Registry of Exonerations concluded that 43 percent of wrongful convictions were attributable to official misconduct, including the desire to attain a promotion, a judgeship, or a political office.

Pfaff, however, says almost no data exists on the concrete reasons prosecutors choose specific charges and sentences.

“Maybe the police are getting better and bringing DAs cases they actually prosecute more rigorously. Maybe the limelight that prosecutors receive has made them more politically ambitious; they want to become the next attorney general or governor or senator,” Pfaff says.

Strict sentencing laws enacted by state legislators become cudgels wielded by district attorneys to send people to prison. “Prosecutors can say, ‘You can take the two-year plea or go to trial and face a 40-year sentence,’” Pfaff says. In other words, longer sentences are not being imposed, but prosecutors are threatening longer sentences, which has resulted in people opting for the reduced sentences and going to prison rather than taking the gamble.

An Illinois Governor and a Chicago Tribune Article

As a graduate student at the University of Chicago, where he earned his Ph.D. in economics in 2005 after his J.D. there two years earlier, Pfaff witnessed some of the “tough on crime” politicians go on trial for political corruption before heading to state prisons. Before one of them, former Illinois governor George Ryan, was convicted in 1999 of the illegal selling of government licenses during his tenure as Secretary of State, he enacted a moratorium on capital punishment and commuted more than 160 death sentences four years later. But it was the disgraced governor’s decision to close a 144-year-old state prison in 2002 in order to trim $4 million from the state budget that turned Pfaff on to prison research.

“I picked up the Chicago Tribune article about this closure, and it sparked some interesting questions: What actually had caused these prisons to grow? How much of this growth had to do with crime? How much had to do with economic conditions?

“Once you start studying it, it’s hard not to get drawn in,” he says. “When you get past the fascination with the numbers, you realize the huge humanitarian angle to it. It becomes difficult not to think about how the system can work better.”

Jeffrey Fagan, the Isidor and Seville Sulzbacher Professor of Law at Columbia Law School, and one of the country’s leading experts on juvenile incarceration, said that imprisonment has developed into one of the most pressing issues in the United States today, and that the punctiliousness and rigor—“the econometric method, the precision, and the depth”—that Pfaff brings to his job also distinguishes his analyses. “John’s research will highlight certain truths that will be extremely difficult to ignore,” he says. Among the applications of Pfaff’s investigation, Fagan believes, will be to illuminate the decision-making processes of prosecutors, challenge the myths about incarceration and sentencing law, promote an inherent conversation about race, and further highlight the ways in which sentencing laws passed by state legislators have been used to coerce plea bargains.

“John has been trained in the numbers and the law, and it’s an important way to contribute to his fields of education. It’s difficult to establish the causal relationships he has drawn, whether between poverty and jail, race and jail, or politics and jail. But what he’s concluded is that many of these people don’t need to be locked up.”

Final Sentences

Since the overflowing prison population started making headlines in recent years, Pfaff has consulted and spoken with a number of news media on incarceration. On August 4, he penned his own public thoughts on the matter in a Washington Post op-ed, questioning the president’s proposed policies laid out at El Reno. Stating that although Obama, as an executive at the federal level dealing with what is largely a state problem, could not have much of an impact, the president could have used “his national pulpit to shape the debate.”

That a majority of prison growth since 1980 has come from locking up violent offenders does not mean our prisons are overflowing with murderers and arsonists … at some point we are going to have to reduce their punishments, although that’s a political third rail.

To begin with, the prison system needs to focus less on drug inmates and more on violent offenders. “That a majority of prison growth since 1980 has come from locking up violent offenders does not mean our prisons are overflowing with murderers and arsonists,” Pfaff says. In fact, acts that constitute violent crime vary from state to state. In New York, for example, all burglary, whether armed or not, remains a Class C violent felony and carries a sentence of four to 15 years in state prison. Other states, such as California, assign misdemeanor charges. Because violent offenders may have been sent to prison for low-level acts of violence, “at some point we are going to have to reduce their punishments, although that’s a political third rail,” says Pfaff.

Secondly, Pfaff suggests states could shorten mandatory minimum sentences and other tough sentencing laws, even for more serious violent offenders. Most people (including prisoners) “age out of crime and no longer pose serious public safety risks as they get older,” Pfaff argues. Prison also undermines the traditional pathways out of crime, such as marriage, children, and jobs, thus turning a potential one-time criminal into a career one almost out of necessity.

“It seems likely that prison growth is less the product of some coherent plan and more the unintended result of actions taken by numerous, relatively autonomous bureaucracies,” Pfaff says.

He believes that, at the very least, these actions should follow from solid, verifiable information. Otherwise, the proposed fixes may only serve to exacerbate the problem.

“If we haven’t really fixed the systematic defects that led to overincarceration the last time crime rates went up, what’s to say we won’t make the same mistakes this time?” Pfaff says. “And if our explanations for the causes of prison growth are wrong, then our solutions will be, too. Then we could end up right back in an era of excessive incarceration.”

–Adrian Brune

Former U.S. Attorney General Eric Holder Receives Fordham- Stein Prize

NOVEMBER 18, 2015
With the recent attacks of Paris frequently mentioned, Fordham’s Stein Center last night honored one of the United States’ leading practitioners of the balance between executing justice and protecting national values, former Attorney General Eric Holder.

In turn, Holder issued a directive to the 150 alumni, friends, colleagues and supporters gathered at the annual Stein Prize dinner, during which Holder received Fordham’s top award for public service.

“Some would just despair, but in times of national stress, lawyers are often at their best,” he said in his acceptance remarks.

“Studies have shown that lawyers are disproportionately responsible for the greatest advancements in the past decades. Wherever you are and whatever you do, you have the power to serve, so find the time, the program, or the cause to serve your fellow citizens and improve their lives.”

Professional duty in the advancement of human rights and social justice was very much the theme of the event, as reflected in the Stein Center’s choice of honoree, according to dinner’s moderators, Fordham President, Rev. Joseph M. McShane, S.J., and Law School Dean Matthew Diller.

“We’re not just honoring you for your achievements, but for your principles, your great heart, your devotion to justice and your willingness to ask and answer the deep, unsettling questions that challenge our society,” McShane said, “For us, you continue to be part nudge and part prophet, as you show us how to live our lives marked by a noble purpose.”

In his remarks, Dean Diller recalled some of the past recipients of the Stein Prize, which had included Supreme Court Justices, Secretaries of State and other U.S. Attorneys General, and applauded the many contributors to the Louis Stein Center for Law and Ethics. He also made clear the reasons Holder was a fit for the award.

“Mr. Holder has always said the Attorney General’s job was never about winning cases or gaining leverage, but about achieving ‘just ends’,” Diller said, citing some of Holder’s advancements during his six-year-tenure at the Justice Department, including an effort to resurrect the Voting Rights Act and release nonviolent drug offenders from prison.

“In late September of last year, Mr. Holder formally announced his resignation as attorney general, but made it abundantly clear that he was not resigning his commitment to his – and his country’s – values,” Diller said. He said: “I will leave the Department of Justice, but ‘I will never leave the work; I will continue to serve and find ways to make our nation even more true to its founding ideals.”

Holder, the 82nd U.S. Attorney General appointed by President Barack Obama in January 2009 became the first African-American man to hold the office. He left in April to return to private practice at Covington & Burling in Washington, D.C., where he represents such clients as Merck and the National Football League.

First awarded in 1976, the Fordham-Stein Prize is presented annually to a member of the legal community whose work embodies the highest standards of the profession. Prize recipients exemplify outstanding professional conduct; promote the advancement of justice; and bring credit to the profession by emphasizing in the public mind the contributions of lawyers to our society and to our democratic system of government.
Adrian Brune

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Election Law Class Visits Supreme Court, Notorious RBG

NOVEMBER 19, 2015
For some legal professionals, one visit to the Supreme Court—and a discussion with a Justice—is considered a crowning achievement of a successful career.

But after bringing his class to meet with Supreme Court Justice Sonya Sotomayor last year, Adjunct Professor Jerry Goldfeder, who teaches an Election Law class every fall at Fordham, decided to decided to try once more for the “seemingly improbable ask”. This year, however, he went for the subject of considerable kerfuffle lately: the Notorious RBG, otherwise known as Ruth Bader Ginsburg.

“Last year, I arranged the meeting through a mutual friend, but this time, I simply called Justice Ginsburg’s chambers and told them what I had in mind. It was just a question of setting a date,” said Goldfeder. “Meeting a Supreme Court Justice, whether a social media icon like Justice Ginsburg or any of the others, is an awe-inspiring experience for students; after all, most long-time practitioners never have this opportunity.

“My real purpose, however, was for students to come away feeling empowered. Meeting successful people, whether judges, public officials, or other accomplished individuals, can enable a student to imagine his or her own successes—and strive to achieve their secret goals,” said Goldfeder, who was voted Fordham Law’s Adjunct Professor of the Year in 2015.

On Monday, Goldfeder, who has represented elected officials and candidates for public office for more than thirty years, took about 20 Fordham Law students, as well as 10 of his Penn Law students, 250 miles south for a tour of the Capitol building led by a member of Congressman Eliot Engel’s staff, including the Old Supreme Court, which is in the Capitol.

Afterward, they spent about an hour with Justice Ginsburg, who posed for photos, spoke for about 15 minutes, and then answered questions ranging from her views on Citizens United to whether her iconic identity as the Notorious RBG has influenced her decision-making.

One of Goldfeder’s students, Aaron Neishlos ’16, asked the first question about whether or not the Supreme Court should recognize a fundamental right to dignity, in light of Justice Kennedy’s discussion of the dignity of same-sex couples in Obergefell v. Hodges. He then asked the Justice “in what capacity she would like to see the right enacted, if at all.” Much to everyone’s surprise, Justice Ginsburg turned the question right around, asking Neishlos’s own opinion.

“I replied that I think that dignity is intrinsically linked to individuals’ rights to self- determination and principles of autonomy, which I thought were fundamental, but which had not yet been recognized by the Court,” Neishlos said. “Justice Ginsberg then said that she would like to see the right codified through a theory of substantive due process.” Professor Goldfeder said, “We were all very proud of Aaron’s intelligence, poise, and self-confidence.”

In addition to the discussion of dignity, Ginsburg offered the students a bit of extra historical context to Obergefell v. Hodges: a small part of Justice Anthony Kennedy’s decision cited a 1981 case, Kirchberg v. Feenstra, in which the Court struck down Louisiana’s “head and master” law, essentially redefining marriage from a relationship between an owner (the husband) and his property (the wife) to a relationship between equals. “In addition to the precedent set in Lawrence v. Texas and U.S. v. Windsor, the holding in Obergefellwas really 40 years in the making,” Neishlos said.

“In our meetings with Justices Sotomayor and Ginsburg, my students asked substantive questions about campaign finance and marriage equality cases, but they also asked each to reflect on being a woman and how that has affected their careers. Both gave very personal answers,” he said. “I think everyone was very moved by the experience.”

Goldfeder is already planning next year’s trip.
–Adrian Brune

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Urban Law Center Fostering Sustainable Cities with UN Habitat

OCTOBER 5, 2015
Cities across the world now hold more than half the world’s population and have become engines of growth and centers of job creation, responsible for 80 percent of global GDP.

But ad hoc urban development often undermines efforts to promote sustainable urban environments and infrastructure—issues addressed during the United Nations Sustainable Development Summit in late September, which laid out 17 new Sustainable Development Goals (SDGs) to stimulate collective action on worldwide challenges. To help usher in SDG reforms in cities through more effective legal and regulatory frameworks, the United Nations Commission on Human Settlements (UN-Habitat), has formed a partnership with Fordham’s Urban Law Center, which will contribute research, scholarly exchange, and a growing comprehensive database of urban laws to inform the development of cities for the 2030 Agenda.

“There will be no sustainable development without sustainable urban development,” UN- Habit Executive Director Jean Clos told the General Assembly at the Summit. “Good urbanization does not come by chance; it comes by design.”

According to Urban Law Center Director Nisha Mistry, the Center will add substantial value by helping UN-Habitat’s Kenya-based Urban Legislation Unit populate UrbanLex, its open- source research database of urban laws across the globe, with U.S. urban law. UrbanLex has the potential to enable city planners, officials, and urban collaborators around the global to more easily access and shape laws related to issues such as building construction, land management, economic development, natural resources, and urban financing.

“Many cities borrow wholesale and wind up with foreign models of development that don’t suit their goals,” Mistry said. “There are reserves of creativity in the legal field that could be better mobilized to improve urban problem solving. It’s been conventional wisdom for decades now that one-size-fits-all approaches to regulation and policymaking don’t work at national and transnational levels. This has alway The new partnership has a term of three years. Critical work will be underway between now and October 2016, when UN-Habitat convenes its Conference on Housing and Sustainable Urban Development in Quito, Ecuador.

Habitat-III, which builds off two previous Conferences in 1976 and 1996, aims to assist governments in addressing challenges through national and local development policy frameworks; deciding how sustainable urbanization will support the relevant 2030 SDGs; and revising and renewing UN-Habitat’s mandate to promote a new model of urban development.

Both the 2030 Agenda and the UN-Habit Conference will play crucial roles in the shape of future urban progress. Across the world’s city centers, administrative discretion and complexity have created a “prevalent trend of unaccountability and a lack of access— particularly for the poor, youth, and women who face real obstacles to economic and social mobility,” Mistry said.

While many traditional legal and regulatory frameworks propose detailed management for cities, they frequently fail to provide municipal decision makers with the practical tools to actually make productive city planning a reality.

“The problem we face nowadays is that most of the new urbanization is spontaneous and unplanned,” Clos said to world leaders. “Therefore, instead of positive outcomes, it often yields negative externalities such as congestion, urban sprawl, and segregation.”

UN-Habitat proposes a radical departure from traditional—and more technically advanced structures—favoring legal instruments that provide the simplest possible fixes to a given problem, as well as urban development that can be built upon, as needed and as capacity and resources allow.

The Urban Law Center understands this vision well. “The goal is to offer up and circulate legal and regulatory frameworks from as many corners of the world as possible,” Mistry said. “It is a response to the ‘silver bullet’ mentality that leads to piecemeal or superficial tweaks rather than truly sustainable development.”
Adrian Brune

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Leitner Center Speaker Talks About Rape as a Weapon in Conflicts Across the Globe

SEPTEMBER 17, 2015
In modern warfare, the rape of women has become the most powerful, cost-effective weapon available for destroying nations, shattering the lives of women, families, and entire communities, demoralizing enemy forces and, in some cases, catalyzing genocide.

Until recently, most countries in the United Nations looked the other way, prioritizing other populations and considerations, such as prisoners of war, before assisting victims of sexual violence.

But due to the efforts of a small contingency of non-governmental organizations,
the UN Security Council and certain countries have been moving toward a more progressive agenda in protecting victims, including allowing funds for reproductive services.

“What happens to women in these circumstances (of sexual violence) needs to be taken as seriously as what happens when Syria uses chemical weapons,” said Akila Radhakrishnan, the legal director of the Global Justice Center, a social justice NGO dedicated to promoting gender equality.
Radhakrishnan spoke before a group of Fordham Law students on September 15 as part of the brown bag lunch series sponsored by the Leitner Center for International Law and Justice.

Rape has been used more than many other acts of war including starvation, the use of herbicides, biological or chemical weapons and means of torture, in enacting terrorism and destabilizing governments, according to the GJC. Yet, despite its endemic use it has not been recognized as a prohibited weapon or tactic of war under the Geneva Convention and no state has ever been held accountable for the use of rape as an illegal tactic of war.

Radhakrishnan discussed the GJC’s Geneva Initiative, which uses universally accepted laws as the foundation for global enforcement of human rights guarantees. Currently, the GJC has focused on the lifting of the ban on abortion attached to U.S. foreign aid, and has been lobbying President Obama for an executive order for abortion funding.

As the world’s single largest aid donor, the United States imposes its abortion ban on nearly all of the main providers of medical care for war victims, including the conflict countries themselves, multilateral organizations such as the United Nations and other NGOs. Several other Western countries, including the United Kingdom, have adopted positive policies allowing for abortion funding under international law, signaling the far-reaching scope of the problem and a sea change in attitudes toward solving it.

“It’s unacceptable that a 12-year-old child might have a child that is ostracized and become ostracized herself—or die in childbirth—because the Obama administration is too scared of Congress to do anything,” Radhakrishnan said.

The GJC also works with women’s groups in countries like Burma to combat impunity for sexual violence, works with a variety of stakeholders globally to change laws and attitudes toward rape in conflict, and has successfully lobbied to have abortion for rape victims considered necessary, non-discriminatory medical care.


Adrian Brune