“Jews, Blacks and lesbians will be leaving America if Trump gets elected—and he’s happy about it. This alone is enough reason to put your entire heart and soul into supporting this man.”
— Andrew Anglin founder and editor of the neo-Nazi Daily Stormer website: “Get Em Outta Here: Glorious Leader Calls for Kike Lena Dunham to Leave America,” April 26, 2016
 
“Fear. Now is the time for it … We want these people to feel unwanted. We want them to feel that everything around them is against them. And we want them to be afraid.”
— Andrew Anglin “Female Hajis Fear to Wear the Headtowel in Public After Trump Win—You Should Yell at Them”


Perhaps the most important thing to clarify about “hate speech” prosecution is that “hate” nor “speech”  by themselves are illegal or unconstitutional.  Rather, the context of both the hate and the speech combined must be examined.  The FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

On October 28, 2009, President Barack Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law, as Division E of the National Defense Authorization Act for Fiscal Year 2010 (P.L. 111-84; H.R. 2647). This law broadens federal jurisdiction over hate crimes by authorizing the Attorney General to provide assistance, when requested by a state, local, or tribal official, for crimes that (1) would constitute a violent crime under federal law or a felony under state or tribal law, and (2) are motivated by the victim’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. In other words, hate crimes are traditional crimes during which the offender is motivated by one or more biases considered to be particularly reprehensible and damaging to society as a whole. Prior to enactment, however, hate crimes were not separate and distinct offenses under federal law. Furthermore, federal jurisdiction over hate crime was limited to certain civil rights offenses.  The birth of this form of legislation can be traced to 1981 when the Anti-Defamation League of B’nai B’rith (ADL) had developed proposed model hate crime legislation, and advocates for tougher laws targeting “hate crime” began lobbying state and federal legislators.  Valerie Jenness and Kendal Broad, Hate Crimes: New Social Movements and the Politics of Violence (New York: Aldine De Gruyter, 1997) p. 32.

Likewise, Wisconsin defines hate crime as committing a crime against certain people or property by selecting them in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct.  Wis. Stat. 935.645.  See WI JI Crim 996.  The statute was created by 1987 Wisconsin Act 348, effective date: May 3, 1988. It was amended by 1991 Wisconsin Act 291. In Wisconsin, crimes that may qualify as hate crimes are: Murder, Forcible Rape, Robbery, Aggravated Assault, Burglary, Larceny/Theft, Motor Vehicle Theft, Arson, Simple Assault, Intimidation, and Destruction/Damage/Vandalism.  However, crimes such as vandalism and simple assault were more frequently reported than more violent crimes such as murder and robbery.

It is critical to understand that a Wisconsin prosecution for a hate crime requires a prosecutor to convince a jury beyond a reasonable doubt that a defendant had an impermissible motive in selecting the victim.  The Southern Poverty Law Center, an Alabama-based nonprofit that tracks hate crimes and hate groups nationwide, said it has seen a rise in the number of hate groups operating in the country for the second consecutive year, up from 892 in 2015 to 917 in 2016. Nine of them operate in Wisconsin.
 
The importance of the increase in hate crimes is important.  The sponsor, State Representative David E Clarenbach, stated, "[T]here has been an alarming increase in crimes that seem to have been motivated by bigotry."'  Shirley S. Abrahamson, Susan Craighead, and Daniel N. Abrahamson, Words and Sentences: Penalty Enhancement for Hate Crimes, 16 U. Ark. Little Rock L. Rev. 515, 520 n. 19 (1994).  It should be noted the Wisconsin Supreme Court struck down the hate crime enhancer but Justice Shirley S. Abrahamson dissented from that opinion despite her personal belief the statute was unwise.  The Wisconsin decision was reversed by the US Supreme Court.

The 2016 increase in hate crimes is a reaction to Trump’s presidential victory.  As pointed out by the SPLC in 2016, In the immediate aftermath of Election Day, a wave of hate crimes and lesser hate incidents swept the country — 1,094 bias incidents in the first 34 days, according to a count by the Southern Poverty Law Center (SPLC). The hate was clearly tied directly to Trump’s victory. The highest count came on the first day after the election, with the numbers diminishing steadily after that. And more than a third of the incidents directly referenced either Trump, his “Make America Great Again” slogan, or his infamous remarks about grabbing women by the genitals.  In fact, “2016 was an unprecedented year for hate,” said Mark Potok, senior fellow and editor of the Intelligence Report. “The country saw a resurgence of white nationalism that imperils the racial progress we’ve made, along with the rise of a president whose policies reflect the values of white nationalists.”  Just as Trump’s promises to build a wall on the U.S.-Mexico border, block Muslim immigration, and restore “law and order” have emboldened nativists and racists, so has his history of casual misogyny and alleged sexual assault (“grab them by the pussy”) energized an explicitly sexist element within the noxious “Alt-Right” movement.

“Our Glorious Leader has ascended to God Emperor,” wrote Andrew Anglin, who runs the neo-Nazi Daily Stormer website. “Make no mistake about it: we did this. If it were not for us, it wouldn’t have been possible.”  Jared Taylor, white nationalist  founder of the New Century Foundation former editor of the racist journal, American Renaissance said that “overwhelmingly white Americans” had shown they were not “obedient zombies” by choosing to vote “for America as a distinct nation with a distinct people who deserve a government devoted to that people.”  In 2005 he said, “Blacks and whites are different. When blacks are left entirely to their own devices, Western civilization — any kind of civilization — disappears.”

Despite these problems, hate crime prosecutions cause concern that a criminal prosecution is being sought for what someone thinks.  Indeed, Democratic Senator Lynn Adelman opposed the bill for Wis. Stat. 935.645, asserting that it came perilously close to penalizing thought.  Senator Adelman, a practicing attorney, filed an amicus brief in Wisconsin v. Mitchell, 508 U.S. 476 (1993) case in the Wisconsin Supreme Court and appeared before the United States Supreme Court arguing that the law was unconstitutional.  See also, e.g., Susan Gellman, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. REV. 333 (1991); James Weinstein, Hate Crime and Punishment: A Comment on Wisconsin v. Mitchell, 73 OR. L. REV. 345 (1994); Thomas D. Brooks, First Amendment Penalty Enhancements for Hate Crimes: Content Regulation, Questionable State Interests and Non-Traditional Sentencing, 84 J. CRIM. L. & CRIMINOLOGY 703 (1994); William J. Burnett, Wisconsin v. Mitchell: First Amendment Fast-Food Style, 4 TEMP. POL. & CIV. RTS. L. REV. 385 (1995); Gregory R. Nearpass, Comment, The Overlooked Constitutional Objection and Practical Concerns to Penalty-Enhancement Provisions of Hate Crime Legislation, 66 ALB. L. REV. 547 (2003).

The American Civil Liberties Union has explained that hate crime prosecution raises a number of concerns. First, they argued that penalty enhancement laws created unconstitutional ‘‘thought crimes’’ in violation of the First Amendment—that is, that the laws violated a defendant’s right to freedom of expression by punishing racist speech, mental processes, or opinions based upon the state’s disagreement with their ideological content. Critics also argued that the laws would have a ‘‘chilling effect’’ on free speech, because people would be fearful of exercising the right to attend racist talks or read racist literature because their activities might be brought into trial as evidence against them should they one day be charged with committing a hate crime. Challenges to the legitimacy and wisdom of the laws included the arguments that penalty enhancement is not warranted because bias crimes are no different from any other criminal act committed for an unpopular reason or that hate crimes are viewed as different only if one attributes some heightened sensitivity or weakness to the victims, who in most cases are members of minority social groups. Based on the latter argument, bias crime laws were sometimes characterized as stigmatizing or insulting to minority groups. Conversely, they also were viewed as insulting to other crime victims, because they were said to send the message that these individuals’ lives and well-being are not ‘‘worth’’ as much as the lives and well-being of minorities.  Critics also contended that hate crime laws would exacerbate rather than reduce tensions between groups, because they draw attention to the perpetrator’s group-based animus.  These arguments seemed valid in light of R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) in which the Supreme Court unanimously struck down St. Paul's Bias-Motivated Crime Ordinance and reversed the conviction of a teenager for burning a cross on the lawn of an African-American family for violating the First Amendment's protections for freedom of speech.

In Wisconsin v. Mitchell, 508 U.S. 476 (1993) (unanimous opinion) reversed 169 Wis.2d 153, 485 N.W.2d 807 (Wis. 1992).  A synopsis of the facts show that Mitchell and others, all African-Americans, were discussing a scene from the movie Mississippi Burning, in which an African-American child is beaten by a white man. Apparently inspired, Mitchell asked the group, "Do you all feel hyped up to move on some white people?" and directed the group to attack a young white boy who happened to pass on the other side of the street. Id. at 158-59, 485 N.W.2d at 809.  The Wisconsin Supreme Court held that "[t]he statute is directed solely at the subjective motivation of the actor-his or her prejudice. Punishment of one's thought, however repugnant the thought, is unconstitutional."  Id. at 170, 485 N.W.2d at 814.
In reversing, the US Supreme Court held that since such statutes remain tied to prohibited conduct, they do not chill free speech and are thus constitutional:

The sort of chill envisioned here is far more attenuated and unlikely than that
contemplated in traditional "over-breadth" cases. We must conjure up a vision of
a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he
later commits an offense covered by the statute, these opinions will be offered at
trial to establish that he selected his victim on account of the victim's protected
status, thus qualifying him for penalty enhancement. Id at 488-89

The Court found a state has a legitimate reason for singling out bias-inspired conduct for enhanced sentencing: “bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims and incite community unrest.” Id.  Moreover, the First Amendment “does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.  Id at 489. 
 
The United States Supreme Court’s opinon is an adoption of Justice Shirley S. Abrahamson’s dissent in the lower state decision where she explained the statute that "[t]he statute does nothing more than assign consequences to invidiously discriminatory acts." and I that "[t]he only chilling effect" [of the statute] is not on speech but on "lawless conduct."  Mitchell, 485 N.W.2d at 819.  Following Mitchell, states have defended the constitutionality of bias crime laws by arguing that their statutes do not interfere with the expression of prejudicial ideas, and are addressed solely to the implementation of those views in conduct. States have asserted their ability to differentiate speech from conduct, and to protect the former while punishing the latter.
​
As noted by the ACLU, in addition to the constitutional issues, hate crime laws raise important policy questions. Chief among these has been the question of which categories of social group membership to include among the punishable biases. The categories that have inspired the greatest controversy have been gender and sexual orientation. As a result, many states do not yet include gender or sexual orientation in their penalty enhancement statutes.

 

So long as authority inspires awe, confusion and absurdity enhance conservative tendencies in society. Firstly, because clear and logical thinking leads to a cumulation of knowledge (of which the progress of the natural sciences provides the best example) and the advance of knowledge sooner or later undermines the traditional order. Confused thinking, on the other hand, leads nowhere in particular and can be indulged indefinitely without producing any impact upon the world. --Stanislav Andreski, Social Sciences as Sorcery (1972, p. 90

The United States Supreme Court decided two landmark cases that were supposed to change how a court admits scientific evidence: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999.  These decisions were to transform the role of judges from passive rubber-stampers of accepted scientific processes to vigilant gatekeepers, passing on the validity and relevance of the science itself.  Gloriously, forensic evidence was proclaimed to free the wrongly accused and catch the guilty.  Somehow judges, most of which are not scientists, are provided evidence, frequently in the form of academic journals, by the lawyers about a legal dispute at trial.

Daubert and Kumho Tire have thus acquired a reputation as the antidote to a perceived indulgence for junk science in the courtroom: “Most of the state trial court judges surveyed believed that a purpose of Daubert is to guard against junk science.”  C. Welch, Flexible Standards, Deferential Review: Daubert’s Legacy Of Confusion, 29 Harvard J. Of Law & Public Policy 1085, 1101 (2005-06).  “Daubert was part of a three case trilogy that “dramatically tightened the rules for the admissibility of expert evidence in federal courts” to “crackdown on ‘junk’ expert testimony in federal courts.”  D. Bernstein, Disinterested in Daubert:  State Courts Lag Behind In Opposing ‘Junk’ Science, Legal Opinion Letter of the Washington Legal Foundation (June 21, 2002)  Judges are believed to be charged with the duty to understand and act as a gatekeeper (most attorneys do not know that term appears but three times in Daubert) about scientific principles.  Daubert even thought on occasion a jury will be prevented from learning of authentic insights and innovations because they were not.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S at 597.

In contrast to Daubert, Kumho Tire referred to something akin to the expression “junk science,” but not in the majority opinion. It appeared in Justice Scalia’s concurring opinion and only once. Referring to the trial judge’s discretion to choose the “manner of testing expert reliability,” Justice Scalia said that a judge has “discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Kumho Tire, 526 U.S. at 159 (emphasis in opinion). In all of Daubert and Kumho Tire, there is no other reference to any concern about “junk science.”

Kumho Tire, like Daubert, lacks any language barring expert testimony. In neither case did the Court worry that trial judges were allowing juries to hear too many unreliable opinions or that the standard for admitting opinion testimony had been tightened or even needed tightening. The Court offered this simple explanation of the gatekeeping function: “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152.

I am amazed at the naivety expressed by the Court in these decisions.  It assumes intellectual rigor on the part of academics and scientists.  That is a dangerous assumption.

As much as it is uncomfortable to admit, science is not always the dispassionate search for the truth.  As detailed by a book by William Broad and Nicholas Wade in Betrayers of the Truth: Fraud and Deceit in Science (Oxford University 1985) science is not a strictly logical process, with objectivity the essence of scientist's attitudes and errors being speedily corrected by rigorous peer scrutiny and experiment replication:

Our conclusion, in brief, is that science bears little resemblance to its conventional portrait. We believe that the logical structure discernible in scientific knowledge says nothing about the process by which the structure was built or the mentality of the builders. In the acquisition of knowledge, scientists are not guided by logic and objectivity alone, but also by such nonrational factors as rhetoric, propaganda, and personal prejudice. Scientists do not depend solely on rational thought, and have no monopoly on it.  Id. at 8-9.  Emphasis added

The Broad and Wade present a series of case studies associated with the conduct of scientific research, from the manipulation of results to the total fabrication of whole experiments  An example of how nonrational factors can come into play has been called the “Sokol affair.”  Social Text is an academic journal published by Duke University Press. Since its inception by an independent editorial collective in 1979, Social Text has addressed a wide range of social and cultural phenomena, covering questions of gender, sexuality, race, and the environment. Since 1992, it is published by Duke University Press. 
Alan Sokal, is a physics professor at New York University and University College London. In the May 1996 Spring/Summer "Science Wars" issue, Sokal had an article published in Social Text. The submission was an experiment to test the journal's intellectual rigor and, specifically, to investigate whether "a leading North American journal of cultural studies – whose editorial collective includes such luminaries as Fredric Jameson and Andrew Ross – [would] publish an article liberally salted with nonsense if (a) it sounded good and (b) it flattered the editors' ideological preconceptions".  Sokal, Alan D. "A Physicist Experiments with Cultural Studies", Lingua Franca, (June 5, 1996).

The article, entitled "Transgressing the Boundaries: Toward a Transformative Hermeneutics of Quantum Gravity", is absurd.  The article proposed that quantum gravity has progressive political implications, and that the "morphogenetic field" could be a cutting-edge theory of quantum gravity (a morphogenetic field is a concept adapted by Rupert Sheldrake in a way that Sokal characterized in the affair's aftermath as "a bizarre New Age idea").  It mocks the old-fashioned "dogma" that "there exists an external world, whose properties are independent of any individual human being and indeed of humanity as a whole", it proclaims categorically that "physical `reality', no less than social `reality', is at bottom a social and linguistic construct". By a series of stunning leaps of logic, it arrives at the conclusion that "the [Pi] of Euclid and the G of Newton, formerly thought to be constant and universal, are now perceived in their ineluctable historicity; and the putative observer becomes fatally de-centered, disconnected from any epistemic link to a space-time point that can no longer be defined by geometry alone". The rest is in the same vein.

Sokal himself exposed his pseudoscientific hoax article in the journal Lingua Franca.  There are other examples.
A disquieting paper entitled, “The Criminal Justice System Creates Incentives for False Convictions”  indicates that police, prosecutors, and forensic scientists often have an incentive to garner convictions with little incentive to convict the right person.. The authors Roger Koppl and Meghan Sacks, cite as an example one laboratory for which collection of court costs following guilty verdicts is the only stable source of funding. According to the paper, in Washington those found guilty following forensic evidence against them must pay a $100 fee, in Kansas the fee is $400, in North Carolina there is a fee of $600 for those found guilty following DNA evidence, similar rules apply in Alabama, New Mexico, Kentucky, New Jersey, Virginia, Illinois and Michigan.

It's not difficult to see how this situation creates a perverse incentive, but what make this case so incredibly worrying is how intrinsically vulnerable evaluation of forensic evidence is to bias. There is plenty of evidence to suggest that when a forensic scientist is given evidence about a case, their decisions regarding ambiguous fingerprint and DNA evidence can be swayed.

The paper cites a 2009 report by the National Academy of Sciences (NAS) which suggests that "the opinions of bloodstain pattern analysts are more subjective than scientific", other areas of forensic science that were assessed to rely heavily on subjective judgment included fingerprint analysis, handwriting comparisons, traditional hair microscopy, ballistics and impression evidence (e.g. comparisons of shoe and tire tracks).  The report concludes that “[w]ith the exception of nuclear DNA analysis, . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”  Id. at 7.  Soon after the report was published, the United States Supreme Court acknowledged that many forensic sciences are subject to “[s]erious deficiencies.”  Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009).

Thousands of cases are under investigation due to the lack of intellectual rigor by forensic scientists. 800 rape cases are under review due to one technician's poor work, another technician from a now closed lab may be responsible for thousands of wrongful drug convictions, hundreds have already been released and the investigation is still incomplete. A Minnesota lab was recently shut down after "a subsequent review by two independent consultants identified major flaws in nearly every aspect of the lab’s operation, including dirty equipment, a lack of standard operating procedures, faulty testing techniques, illegible reports, and a woeful ignorance of basic scientific principles....  (the lab) was run by a police sergeant with no scientific background, had no written operating procedures, didn’t clean instruments between testing, allowed technicians unlimited access to the drug vault, and didn’t have anyone checking anyone else’s work. Analysts didn’t know what a validity study was, used Wikipedia as a technical reference, and in their lab reports referred to “white junk” clogging an instrument.".

In his book, Tales Told for Children. Hans Christian Andersen tells the tale of "The Emperor's New Clothes." It is a tale of about two swindlers who promise an emperor a new suit of clothes that they say is invisible to those who are unfit for their positions, stupid, or incompetent – while in reality, they make no clothes at all, making everyone believe the clothes are invisible to them. When the emperor parades before his subjects in his new "clothes", no one dares to say that they do not see any suit of clothes on him for fear that they will be seen as stupid. Finally, a child cries out, "But he isn't wearing anything at all!"

The tale has reached the status of legend.  It stands for anything "Emperor's new clothes" is now a standard metaphor for anything that smacks of pretentiousness, pomposity, social hypocrisy, collective denial, or hollow ostentatiousness.  It took someone who obviously did not have the sophistication to see the invisible clothes to have the courage to challenge authority and to speak truth to a powerful lie.  Social psychologists use the pluralistic ignorance to describe a situation where people erroneously infer that they feel differently from their peers, even though they are behaving similarly.  This is also described as "no one believes, but everyone thinks that everyone believes.  Or alternatively, everyone is ignorant to whether the emperor has clothes on or not, but believes that everyone else is not ignorant." Nothing is said out of fear.

Pluralistic ignorance is seen in our daily lives.  For instance, Many law school students sit in lecture halls listening to a complicated lecture. After many minutes of incomprehensible material, the lecturer pauses and asks if there are any questions. No hands go up. You look around the room. Could these people really understand what the lecturer is talking about? You yourself are completely lost. Your fear of looking stupid keeps you from raising your hand, but as you look around the room at your impassive classmates, you interpret their similar behavior differently: You take their failure to raise their hands as a sign that they understand the lecture, that they genuinely have no questions. These different assumptions you make about the causes of your own behavior and the causes of your classmates’ behavior constitute pluralistic ignorance.

Fortunately, pluralistic ignorance can be dispelled, and its negative consequences alleviated, through education. For example, most law school form study groups and discuss the incomprehensible material and find that others did not understand the material either.  They work together to understand what was once incomprehensible material.

In State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749 the Wisconsin Supreme Court held that a circuit court’s consideration of the COMPAS, an algorithmic risk assessment, at sentencing does not violate a defendant’s right to due process.  The problem in reaching this conclusion?  The methodology used to produce the assessment was not disclosed neither to the court nor to the defendant.  The Court was not troubled by this fact since COMPAS uses only publicly available data and data provided by the defendant.  Therefore, the court concluded that  Loomis could have denied or explained any information that went into making the report and therefore could have verified the accuracy of the information used in sentencing.  Loomis, 881 N.W.2d at 761-62.  In her concurrence, Justice Abrahamson agreed with the judgment, but was concerned that the court had difficulty understanding algorithmic risk assessments.  Id. at 774 (Abrahamson, J., concurring).

Justice Abrahamson raised her hand and told us that this emperor really has no clothes.  Loomis avoided dealing with criticisms of algorithmic risk assessments like COMPAS.  But a number of people have begun to raise their hand and question whether this emperor really wears any clothes.  See, e.g., Eric Holder, Att’y Gen., U.S. Dep’t of Justice, Address at the National Association of Criminal Defense Lawyers 57th Annual Meeting and 13th State Criminal Justice Network Conference (Aug. 1, 2014).  The Attorney General specifically said that the utility of any data from a algorithmic risk assessment depends upon “how this data is harnessed and put to use.”  Specifically, “we need to be sure the use of aggregate data analysis won’t have unintended consequences . . . like inadvertently undermin[ing] our efforts to ensure individualized and equal justice. By basing sentencing decisions on static factors and immutable characteristics – like the defendant’s education level, socioeconomic background, or neighborhood – they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”  See also, Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association's House of Delegates (risk assessment might perpetuate racial disparities already prevalent throughout the criminal justice system.)

Legal commentators tell us that “overt discrimination based on demographics and socioeconomic status.”  Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 Stan. L. Rev. 803, 806 (2014).  In fact, testing of Independent testing of the COMPAS assessment tool used in Loomis’s sentencing showed that offenders of color were more likely to receive higher risk ratings than were white offenders.  Julia Angwin et al., “Machine Bias” (Propublica 2016).  For instance, a black teenage defendant with no prior record who stole a bicycle with a middle-aged white male who stole hardware from a Home Depot. Importantly, he had prior armed robbery convictions, whereas she had no record. COMPAS deemed the young girl a high-risk individual and her older counterpart a low-risk one.  Id.  COMPAS has been shown to be racially biased by other researchers.  Clearly, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state.  Cecelia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. (2016).

Someone needs to tell the emperor, that risk assessments include criminal history as a factor in the tool, which—owing to potential systemic bias in policing and prosecution—might elevate risk scores for offenders who are black.  Using historical data to train risk assessment tools could mean that machines are copying the mistakes of the past:

Modern-day risk assessment tools are often driven by algorithms trained on historical crime data. As we’ve covered before, machine-learning algorithms use statistics to find patterns in data. So if you feed it historical crime data, it will pick out the patterns associated with crime. But those patterns are statistical correlations—nowhere near the same as causations. If an algorithm found, for example, that low income was correlated with high recidivism, it would leave you none the wiser about whether low income actually caused crime. But this is precisely what risk assessment tools do: they turn correlative insights into causal scoring mechanisms.  Now populations that have historically been disproportionately targeted by law enforcement—especially low-income and minority communities—are at risk of being slapped with high recidivism scores. As a result, the algorithm could amplify and perpetuate embedded biases and generate even more bias-tainted data to feed a vicious cycle. Because most risk assessment algorithms are proprietary, it’s also impossible to interrogate their decisions or hold them accountable.

People who identify as lesbian, gay, bisexual, or transgender (LGBT) often face social stigma, discrimination, and other challenges not encountered by people who identify as heterosexual.  As Matthew Todd explains in his book Straight Jacket: Overcoming Society’s Legacy of Gay Shame, “It is a shame with which we were saddled as children, to which we continue to be culturally subjected. The problem gay people have isn’t their sexuality, but rather society’s attitude to it. It is our experience of growing up in a society that still does not fully accept that people can be anything other than heterosexual and cisgendered [born into the physical gender you feel you are]”.

Possibly as a coping mechanism in the face of homophobia, figures indicate that gay people are seven times more likely to take illegal drugs than the general population, with one in five of those surveyed showing signs of dependency on drugs or alcohol.  Interestingly, a study found that nonadherence to traditional gender roles for women may influence drinking among lesbians—especially in lower- and middle-income societies where the value placed on traditional gender roles remains strong.  These findings are consistent with those from a study where it was found adoption of nontraditional gender roles and higher rates of drinking among lesbian women than among heterosexual women.  The predominant theoretical explanation for this is termed “minority stress.”  Underlying this perspective are the assumptions that minority stressors are unique (not experienced by nonstigmatized populations), chronic (related to social and cultural structures), and socially based (stemming from social processes, institutions, and structures).  As a result of such social pressures, several co-occurring disorders, or mental illnesses that are present alongside alcoholism, are more common among members of the LGBTQ community.

It is incumbent upon a sentencing court in passing a fair and just sentence to understand the excess mental distress and disorders due to social stress imposed on a gay defendant.  A sentencing court has the weight of centuries of hatred and bigotry, which can only be dismantled by a meaningful sentence that protects society while rehabilitating the defendant.  In fact, research has found that by accepting a defendant as being gay a sentencing court will enhance her sobriety. 

This is especially true since women repeatedly have stated that the types of services available to them for OWI treatment were often limited and failed to meet their needs; especially the case in rural jurisdictions.  Female Drunk Drivers: A Qualitative Study (Traffic Injury Research Foundation 2013) p.35.  Additionally, women often have a harder time than male alcoholics re-integrating themselves into the community after they have been punished, said Sandy DeYoung, a social worker who counsels female alcoholics at Taycheedah.  David Doege, For many women drunken drivers, jail not a cure, Milwaukee Journal Sentinel (April 15, 2004).  "The issues for women are different than men. That's been a problem we didn't understand for a long time."  Id.

People who identify as lesbian, gay, bisexual, or transgender (LGBT) often face social stigma, discrimination, and other challenges not encountered by people who identify as heterosexual.  As Matthew Todd explains in his book Straight Jacket: Overcoming Society’s Legacy of Gay Shame, “It is a shame with which we were saddled as children, to which we continue to be culturally subjected. The problem gay people have isn’t their sexuality, but rather society’s attitude to it. It is our experience of growing up in a society that still does not fully accept that people can be anything other than heterosexual and cisgendered [born into the physical gender you feel you are]”.

Possibly as a coping mechanism in the face of homophobia, figures indicate that gay people are seven times more likely to take illegal drugs than the general population, with one in five of those surveyed showing signs of dependency on drugs or alcohol.  Interestingly, a study found that nonadherence to traditional gender roles for women may influence drinking among lesbians—especially in lower- and middle-income societies where the value placed on traditional gender roles remains strong.  These findings are consistent with those from a study where it was found adoption of nontraditional gender roles and higher rates of drinking among lesbian women than among heterosexual women.  The predominant theoretical explanation for this is termed “minority stress.”  Underlying this perspective are the assumptions that minority stressors are unique (not experienced by nonstigmatized populations), chronic (related to social and cultural structures), and socially based (stemming from social processes, institutions, and structures).  As a result of such social pressures, several co-occurring disorders, or mental illnesses that are present alongside alcoholism, are more common among members of the LGBTQ community.

It is incumbent upon a sentencing court in passing a fair and just sentence to understand the excess mental distress and disorders due to social stress imposed on a gay defendant.  A sentencing court has the weight of centuries of hatred and bigotry, which can only be dismantled by a meaningful sentence that protects society while rehabilitating the defendant.  In fact, research has found that by accepting a defendant as being gay a sentencing court will enhance her sobriety. 

This is especially true since women repeatedly have stated that the types of services available to them for OWI treatment were often limited and failed to meet their needs; especially the case in rural jurisdictions.  Female Drunk Drivers: A Qualitative Study (Traffic Injury Research Foundation 2013) p.35.  Additionally, women often have a harder time than male alcoholics re-integrating themselves into the community after they have been punished, said Sandy DeYoung, a social worker who counsels female alcoholics at Taycheedah.  David Doege, For many women drunken drivers, jail not a cure, Milwaukee Journal Sentinel (April 15, 2004).  "The issues for women are different than men. That's been a problem we didn't understand for a long time."  Id.

The Trump Administration wants you to believe that by building a steel wall over part of our southern border will make America safer from terrorists.

Before we examine the merits of this idea, it should be known who is making money on the wall.  The latest design of Trump's 'wall' (which he acknowledges is a barrier more than a wall) includes high steel slats with spikes (the better to impale people and birds with). Some estimates have the slats costing upwards of $24.5M per mile (for a 1,993 mile border that logistically cannot be contiguous). That's a lot of money, especially with the steel tariffs that Trump has demanded.

Who stands to make a profit from the sale of the steel?  Unsurprisingly, a Russian steel company whose biggest shareholder is an oligarch and Trump family friend. The company, Evraz North America, supplied Keystone from its steel plants in Canada.  The oligarch who owns Evraz, Roman Abramovich, is a very close ally to Putin (owing much of his significant wealth to him) and a personal friend to Trump and the Kushners.

One of history’s greatest mass murderer understood something that apparently Trump does not.  Stalin supposedly once said, “Ideas are far more powerful than guns. We don't let our people have guns. Why should we let them have ideas?”

Will the wall stop harmful ideas from entering America?  No.  As stated by John B. Alexander, you must realize that the most dangerous and virtually unprotected port of entry for terrorism is the human mind and no wall is going to prevent ideas from entering.  In Parameters, the Journal of the U.S. Army War College, Lt. Col. Timothy L. Thomas explains that the concept of “‘information warfare’ falls short when the individual soldier, not his equipment, becomes the target of attack.”  What is depicted here is that the targets for ideological persuasion are far wider than members of the military but the effects just as devastating.

In other words, WALLS ARE USELESS TO STOP IDEAS FROM ENTERING A MIND.

Bertrand Russell once said, "The whole problem with the world is that fools and fanatics are always so certain of themselves, and wiser people so full of doubts."  Similarly in his poem, “The Second Coming,” Yeats says, ““The best lack all conviction, while the worst are full of passionate intensity.”

This problem is clearly illustrated in matters of morality and God.  There are many people who passionately assert that morality cannot exist without a belief in God.  This issue is dealt with in a dialogue between Socrates and Euthyphro.

Socrates was awaiting trial on the charge of corrupting youth and denying the existence of God. He was visited by Euthyphro who had come to have his father charged with murder since the father had killed a man.  Euthyphro’s father had had a hired worker who had killed a slave, so Euthyphro’s father threw the worker into a pit -- bound and gagged -- and then left for another city to ask the authorities there how to proceed. While gone, the worker died in the pit from starvation and exposure to the elements.  Euthyphro explains his father is angry with him for taking the part of the murderer and prosecuting his father. Euthyphro explained that some suggest  my father did not kill him, and that if he did, dead man was but a murderer, and a son is immoral who prosecutes a father.

Socrates is stunned by Euthyphro’s confidence in bringing charges against his own father for murder. Socrates asked Euthyphro if it is always moral to prosecute someone for murder.  Euthyphro explains that prosecuting anyone who is guilty of murder or of any similar crime-whether he be your father or mother, or whoever he may be-that makes no difference; and not to prosecute them is immoral.  Ultimately, Euthyphro explains that morality is that which is dear to God, and immorality is that which is not dear to God.  Clearly Euthyphro has told us that without God there is no morality.

The idea that morality cannot exist without God is interesting.  If an act is moral simply because God commands it, then that means that any act – even the slaughtering of babies – is potentially moral. And if that is the case, then morality is intrinsically arbitrary, and the very word “moral” loses all meaning. Moral could just as easily be called evil. And if moral can be evil and evil can be moral, then it makes no sense to even use the words “moral” or “evil” to begin with. They cancel each other out. At best, we would just say that an action is something that God commands; calling it “moral” no longer signifies anything at all.

However,  if you agree that something doesn’t become moral simply because God commands it, but rather, believe that God commands actions that are moral because he sees or recognizes them as being moral in and of themselves, then morality exists outside of, and independently of, God. In short, God becomes redundant. He is not necessary for morality.

As Walter Sinnott-Armstrong who is Chauncey Stillman Professor of Practical Ethics in the Department of Philosophy and the Kenan Institute for Ethics at Duke University concludes, based on his interpretation of the Euthyphro dilemma:

Assume that God commanded me not to rape. Did God have a reason to command this? If not, then His command was arbitrary, and an arbitrary command can’t make anything morally wrong. On the other hand, if God did have a reason to command us not to rape, then that reason is what makes rape morally wrong, and the command itself is superfluous. Hence, divine commands are either arbitrary or superfluous. Either way, morality cannot depend on God’s commands.

Euthyphro can’t seem understand the implications of Socrates’ question: does God command actions because they are moral in and of themselves, or do actions become moral only when and if God commands them? Perhaps its’ not that Euthyphro cannot understand the piercing significance of this question, but rather, that he can’t or will not allow himself to understand it. For to understand it suggests that morality does not depend on a god for its existence or content.

What if a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power?

In 1976, Congress enacted the National Emergencies Act that limited the scope of response to declared states of emergency. The act:
    Revoked the powers that had been granted to the president under the four states of emergency that were still active in 1976.
    Prescribed procedures for invoking any powers in the future.
    Declared that states of emergency would automatically end one year after their declaration unless the president publishes a notice of renewal in the Federal Register within 90 days of the termination date. He or she must also officially notify Congress of the renewal.
    Required each house of Congress meet every six months to consider a vote to end the state of emergency.

According to Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 440 (1934) characterized an emergency in terms of “urgency and relative infrequency of occurrence as well as equivalence to a public calamity resulting from fire, flood, or like disaster not reasonably subject to anticipation.”

So would our laws and institutions might not save us from a presidential power grab?  Rulings such as Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579 (1952) in which the Supreme Court invalidated President Harry Truman’s assertion of assertion of "inherent" executive power to take over steel mills during the Korean War, have been the exception.  See, Maeva Marcus, Truman and the Steel Seizure Case: The Limits of Presidential Power (Constitutional Conflicts) (Duke University Press 1994).  While an exception, the case does stand for the proposition that even in times of war, the executive power is subject to judicial scrutiny. 

The outer boundary of the president’s constitutional authority during emergencies remains poorly defined.  Presidential power is greatest when the president acts where Congress has failed to act indicating no legislative intent on how to act.  See, Crockett v. Reagan, 558 Supp. 893 (D.D.C. 1982), aff’d 720 F.2d 1355 (D.C. Cir. 1983); Sanchez-Espinoza v. Reagan,  568 F.Supp 596 (D.D.C. 1983) aff’d 770 F.2d202 (D.C. Cir. 1985).  This is why Pres. Bush asked Congress to pass legislation to support his Persian Gulf policy.

The high court also relied on Youngstown in Medellín v. Texas, 552 U.S. 491 (2008). In that case, President Bush had pressured the state of Texas to review the murder conviction of a Mexican citizen who had tortured and raped two teenage girls in 1993, arguing that a 2004 decision by the International Court of Justice (ICJ) required law enforcement authorities to tell the accused of his right under the Vienna Convention to notify Mexican diplomats of his detention. In a 6-to-3 decision, the Court held that ICJ rulings were not enforceable in the United States, and Bush's actions were unconstitutional. Quoting Youngstown Sheet & Tube, Chief Justice John Roberts concluded, "The president's authority to act, as with the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution itself.'"

It is for this reason that it is critical for people to express their concern to Congress

BY Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.
http://www.scowstats.com/2019/01/10/justice-abrahamsons-prominence-part-3/


A recent post (inspired by Richard Posner’s Cardozo: A Study in Reputation) offered a means of assessing the influence of Justice Shirley Abrahamson during her unprecedented tenure on the bench.  This technique compared the number of times that appellate courts cited her opinions with the number of times that they cited opinions written by her colleagues in Madison.[1]  However, Posner did not confine himself to inspecting courts’ decisions, and neither will we, as there are other ways of gauging judicial stature.  One of these—the frequency with which a justice’s opinions and other endeavors are cited by law-review articles—is today’s topic.
Consider the contents of Table 1, showing the number of law-review citations of Justice Abrahamson’s activities and those of the 24 other justices who have served on the court during her 43 terms.[2]  Most striking here is the enormous number of articles mentioning Justice Abrahamson compared to the sums for the other justices.  In fact, Justice Abrahamson’s total of 993 is roughly six times the quantity for any of the next three justices: A.W. Bradley (175), Bablitch (173), and Coffey (161).  Although the numbers are estimates—different random samples and different means for handling gray areas would yield slightly different figures (see the following footnote)—no defensible method would eliminate Justice Abrahamson’s overwhelming dominance.[3] 
All justices write majority opinions, concurrences, and dissents, thereby guaranteeing them appearances in the text or at least the footnotes of law review articles (unless a justice is very new to the bench).  As a result, many (often most) of the law-review references in Table 1 are to judicial opinions authored or joined by the justices—akin to the citations of their opinions in other appellate decisions covered by the previous post.[4]  This is a meaningful measure of judicial influence, but another way to gain a sense of a justice’s standing is to focus on a subset of Table 1—namely, the number of law-review articles that mention (1) addresses delivered by a justice in public or professional settings and (2) articles (not judicial opinions) written by a justice.
These two activities take us into the realm of voluntary accomplishments that enhance a justice’s eminence—and differentiate Justice Abrahamson even more sharply from the other justices than was the case in Table 1.  As Table 2 reveals, the number of articles that cite Justice Abrahamson’s publications and speeches towers above the amounts for her colleagues—nearly seven times as many as the next highest total (that for Justice/Judge Sykes).[5]  Indeed, Justice Abrahamson’s figure of 465 is three times as large as the sum of the articles that cite the publications and speeches of all of the 24 other justices combined.[6]  Clearly, by this accounting, no other justice has been as prominent as Shirley Abrahamson—not even Justice Sykes, whose elevation to a federal judgeship greatly increased her number of hits.
The techniques developed from Posner’s book are doubtless not the only ways of estimating a justice’s stature (and I’m always grateful to benefit from advice).  But the tables in this post do suggest that most appraisals of the renown of Wisconsin Supreme Court justices will find Justice Abrahamson at the top of the rankings.

[1] Thanks again to Bill Tyroler for bringing Posner’s book to my attention.
[2] The coverage of law-review articles in Lexis does not extend back past 1982.  This, of course, reduces the number of hits for justices on the court at the beginning of our period—the late 1970s—which includes Justice Abrahamson.
[3] Let’s say that a search for law-review articles mentioning Justice X delivers hits in 600 articles.  Many of these hits will likely be “false positives”—other people with the same surname, for instance, or perfunctory references to Justice X, as in a list of the seven justices on the court in a given year.  If these can be filtered out, we will be left primarily with hits of the sort that we desire: (1) references to a judicial opinion by (or joined by) Justice X; (2) references to an article or book authored by Justice X; (3) references to an address given by Justice X; (4) a tribute to Justice X; (5) a quoted comment by Justice X on matters regarding the court; and (6) other actions by Justice X pertaining to the legal system (such as forming a committee to draft a recommendation on some matter).
To cope with the volume of hits, I adopted a sampling procedure resembling that employed by Posner.  For justices with only a few hits—30 or 40 law-review articles—I examined every article individually.  But for larger numbers of hits (over a thousand in some cases), I took a random sample of articles and determined the percentage of articles in this sample that had references of the sort that we are including.  The percentage could then be used to approximate a justice’s total number of significant hits.  For example, if Justice X had a raw total of 600 hits, and scrutiny of a random sample of 30 of these articles found that 75% of the sample contained references that we are counting, I would arrive at an estimate of 450 significant articles for Justice X (75% of 600).  Sample sizes varied from justice to justice, but they always represented a much larger percentage of a justice’s total number of hits than was the case in the example furnished in Posner’s study.
As with any selection criteria, there are some gray areas—notably, articles that refer to a justice’s election campaign.  Generally, I have counted articles with references to a justice’s campaign if these include substantive quotations from the justice or commentary on controversies associated with the campaign, but I have excluded minor references (such as a note that a justice won reelection in a particular year).
     I have also excluded minor references of other sorts, such as those encountered occasionally in biographical sketches of other people (“so and so clerked for Justice X before moving on to various positions of increasing prominence”), unless a reference discusses Justice X’s influence on a person’s career (very rare).  Excluded, too, are notes that a justice did not participate in a particular decision.  However, I have counted articles that cite other articles said to quote a justice on a matter under discussion in the first article.  None of these exclusions or inclusions occur frequently, and while disagreement might arise over the proper classification of one example or another, no rational approach would affect this post’s main theme (the massively larger numbers for Justice Abrahamson in Tables 1 and 2).
     Another question concerns the categorization of critical discussions of a justice’s conduct.  Although there are comparatively few such articles for most justices in this study, fully half or more of the references to Justices Ziegler and Gableman were disapproving—pertaining to judicial-ethics concerns for Justice Ziegler and election-campaign issues for Justice Gableman.  Should articles with such commentary be included in a post devoted to assessing a justice’s eminence?  In view of this post’s main theme—the much larger number of references to Justice Abrahamson than to the other justices—I will be conservative and count all of the judicial-ethics articles and electoral-campaign articles for Justices Ziegler and Gableman respectively.  The total number of hits of any sort for both justices is very small (46 for Justice Ziegler and 36 for Justice Gableman at the time that I ran my searches), and, thus, any approach to categorizing them will not alter the post’s principal conclusions.
[4] The previous post was confined to citations of the justices’ majority/lead opinions.  Today’s post includes references to separate opinions as well.
[5] I used the same estimation method for Table 2 as for Table 1.  Gray-area questions are extremely rare when searching for references to publications and speeches. 
[6] It bears emphasizing that the figures in this table are estimates, generated from random samples as described above.  If a justice wrote only a couple articles, and if these articles were rarely cited by other authors, there is a reasonable chance that they might not be captured by my random sample—resulting in an estimate of zero for that justice.

There is no federal law that stipulates that children and parents be separated at the border, no matter how families entered the United States.

Claims that the “law to separate families” was passed in 1997, those claims originated with a February 2018 Department of Homeland Security statement referencing “[l]egal loopholes [that] are exploited by minors, family units, and human smugglers.” The DHS statement claimed existing immigration policies “create a pull factor that invites more illegal immigration and encourages parents to pay and entrust their children to criminal organizations.”

However, neither the 1997 Flores settlement nor a 2008 human trafficking law cited in that release in any way stipulated that the government separate children from their parents:
A White House spokesman referred [Factcheck.org] to a DHS statement regarding a 1997 legal settlement and 2008 antitrafficking law affecting minors who are apprehended without a parent present:
Under the 1997 settlement, DHS could detain unaccompanied children captured at the border for only 20 days before releasing them to foster families, shelters or sponsors, pending resolution of their immigration cases. The settlement was later expanded through other court rulings to include both unaccompanied and accompanied children.
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 requires unaccompanied minors from countries other than Mexico and Canada to be placed in the care of the Office of Refugee Resettlement, or relatives in the U.S., while they go through removal proceedings. The bipartisan bill was approved by unanimous consent and signed by Bush.
But neither the court settlement nor the 2008 law require the Trump administration to “break up families.”A cluster of rumors about the controversial separation of families at the border held that the policy came before the Trump administration, either stemming from a 1997 “law” or purported policies of previous administrations. Those claims were false. No federal law required or suggested the family separation policy announced by Attorney General Sessions in several sets of remarks during April and May 2018.
An increase in child detainees separated from parents stemmed directly from a change in enforcement policy repeatedly announced by Sessions in April and May 2018, under which adults (with or without children) are criminally prosecuted for attempting to enter the United States:
The “zero-tolerance” policy he announced [in May 2018] sees adults who try to cross the border, many planning to seek asylum, being placed in custody and facing criminal prosecution for illegal entry.
As a result, hundreds of minors are now being housed in detention centres, and kept away from their parents.
Over a recent six-week period, nearly 2,000 children were separated from their parents after illegally crossing the border, figures released on [15 June 2018].
[Attorney General] Sessions said those entering the US irregularly would be criminally prosecuted, a change to a long-standing policy of charging most of those crossing for the first time with a misdemeanour offence.News items about Sessions’ comments on border policy often included a statement he made at a gathering for the Association of State Criminal Investigative Agencies in Arizona on 7 May 2018:
So, if you cross the border unlawfully, even a first offense, we’re going to prosecute you….
If you’re smuggling a child, we’re going to prosecute you, and that child will be separated from you, probably, as required by law. If you don’t want your child to be separated, then don’t bring them across the border illegally.In other articles, Sessions was quoted as saying on the same date:
If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law … If you don’t like that, then don’t smuggle children over our border.
[…]
We don’t want to separate families, but we don’t want families to enter the border illegally[.] We urge them not to do so.On 5 June 2018, CBS News covered an interview Sessions provided to radio host Hugh Hewitt. During the broadcast, Hewitt asked Sessions if it was “absolutely necessary… to separate parents from children when they are detained or apprehended at the border.” Several responses from Sessions were included in the article:
If people don’t want to be separated from their children, they should not bring them with them. We’ve got to get this message out. You’re not given immunity. You have to, you will be prosecuted if you bring, if you come illegally. And if you bring children, you’ll still be prosecuted.
[…]
[T]he United States can’t be a total guarantor that every parent who comes to the country unlawfully with a child is guaranteed that they won’t be, is guaranteed that they will be able to have their hand on that child the entire time. That’s just not the way it works … I don’t think it’s a moral right, Hugh. … If you come to the country, you should come through, first, through the port of entry and make a claim of asylum if you think you have a legitimate asylum claim. You shouldn’t try to get across the border at some desert site, some remote site unlawfully and expect not to be promptly deported. We’ve caught, over the years, millions of people, and they’ve been promptly deported. They don’t get trial in federal court.

Sessions did not make the statement attributed to him, but he did make a series of remarks in early April 2018 about a new border initiative involving the separation of children from parents at border crossings:
If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law … If you don’t like that, then don’t smuggle children over our border.
[…]
We don’t want to separate families, but we don’t want families to enter the border illegally[.] We urge them not to do so.On 7 May 2018, CNN reported that until April 2018, immigration officials used discretion to handle families or unaccompanied minors entering the United States without documentation:
It has long been a misdemeanor federal offense to be caught illegally entering the US, punishable by up to six months in prison, but the administration has not always referred everyone caught for prosecution. Those apprehended were swiftly put into immigration proceedings and, unless they met the threshold to pursue a valid asylum claim, can be quickly deported from the country.
The current DHS plan makes no special arrangements for those who claim asylum when apprehended. While they will be allowed to pursue their claims and could eventually be found to have a legitimate right to live in the US, they could still already have a conviction for illegal entry.On 7 May 2018, CNN reported that until April 2018, immigration officials used discretion to handle families or unaccompanied minors entering the United States without documentation:
It has long been a misdemeanor federal offense to be caught illegally entering the US, punishable by up to six months in prison, but the administration has not always referred everyone caught for prosecution. Those apprehended were swiftly put into immigration proceedings and, unless they met the threshold to pursue a valid asylum claim, can be quickly deported from the country.
The current DHS plan makes no special arrangements for those who claim asylum when apprehended. While they will be allowed to pursue their claims and could eventually be found to have a legitimate right to live in the US, they could still already have a conviction for illegal entry.

sources:https://www.snopes.com/fact-check/did-ag-say-if-inflict-fear-pain-children/
https://www.snopes.com/fact-check/was-law-separate-families-passed-1997/