<br>This is an Annotation for Transparent Inquiry project, published by the Qualitative Data Repository.

Please cite as:

Stohler, Stephan; Ingram, Matthew. 2026. "Data for: 'The Effects of Judges' Institutional Interests on a Free Press'". Qualitative Data Repository. https://doi.org/10.5064/F6QK6YFW

Learn more about ATI here.

<br>AN2<br><br>Citation: Jucha & Żak v. Poland, App. No. 19127/06, Eur. Ct. H.R. (Oct. 23, 2012), https://hudoc.echr.coe.int/eng?i=001-113919.

Analytic note: The original article giving rise to the litigation appeared in the 28 January 2004 and 4 February 2004 issue of TEMI, a local weekly newspaper based in Tarnów, Poland. The first applicant, Dorota Jucha, was a staff journalist there; the second applicant, Tomasz Żak, was its editor-in-chief. The articles at issue formed part of a series of six pieces titled "Marek C. w epizodach" ("Marek C. in Episodes"), all written by Jucha. The Polish version of the article can be found in the ECtHR decision published in Polish, available via the URL provided above.

Source excerpt translation:

Marek C. in episodes

M.C. is certainly a colourful character. This Tarnów councillor, serving his third mandate on the municipal council, tried to become the President of Poland and a member of the Senate. Currently, he is involved in many court cases and is again becoming the subject of scandals.

Everyone remembers well that at the beginning of winter Councillor C. was involved in the eviction of two pregnant women from a flat located at ... Street in Tarnów. Everyone also remembers the explanation of C. who described one of the evicted women as running a shebeen and suggested that she together with her daughter were women of easy virtue. ...

People don't want to speak about C. And if they do, they speak about him as if he were dead – either well or nothing. Otherwise they risk to be taken to court and charged with defamation or breach of his personal rights. The list of persons who have met him in a courtroom is long and new names appear on it all the time. ...

For years the activity of M.C. has been based on balancing on the edge of the law, and even on breaking it. C. is most frequently accused of denigrating people and undermining their authority and of disseminating untruthful information about them. This includes information which suggests corruption links between people whom C. dislikes for reasons exclusively known to him. And that is how the articles and paragraphs of the Criminal Code which are being breached by councillor C. – without much notice on his part – proliferate.

Colleagues on the [municipal] council

People still don't want to speak about C. Are they afraid? Of what? Z.J., formerly for many years chairman of the Tarnów Municipal Council, refused to speak. Similarly, J.R., former mayor, did not want to say anything. (...)

However, A.K., the current chairman of the Municipal Board spoke:

"M.C. is a very touchy person, often he does not weigh his words. Even if a mild opinion is expressed about him, he still considers himself to be offended. At the same time he uses words which in the language of people with at least a minimum of good manners are considered inappropriate. I said already once to Mr C. that his character was not oriented on construction, but on destruction. (...)"

Mayor M.B. does not want to comment on councillor C.'s behaviour. He says that not because he is afraid, but because he thinks that there is nothing to comment on:

"Cooperation with this councillor is entirely out of the question. From his part there is only constant criticism, attack, and most frequently without any order, repetition of the same arguments. Mr C. criticises everything and all the time. ..."

Desk for the councillor

M.C. has ambitions and plans. He wants to become the President of Poland, or mayor of Tarnów, or a member of parliament. And if there are no elections, then he applies for the job of director of the Żabno Cultural Centre. There also without success. Everywhere and on every occasion he promises something. Up to now it would be difficult to find in his CV any positive achievements or just partial fulfilment of his various promises, including the electoral ones.

Sometimes C. attempted to get other "inferior" positions, compared to a chair in the presidential palace. For example, the mayor's plenipotentiary for the establishment of a university in Tarnów. It was being said that an agreement on the taking of this position by C. would be one possible way of calming the political excesses of the councillor. He did not get the position. Unofficially it was being said that similar arguments [were raised] when C. attempted to get another job, namely that of deputy head of the municipal police in Tarnów. This also failed. ... And could it be that his venomous aversion to the media, and in particular to the largest weekly in the region, is the result of its refusing his offer to become the editor in chief of the paper, or is that just a coincidence?

<br>AN4<br><br>Citation: Prager & Oberschlick v. Austria, App. No. 15974/90, 313 Eur. Ct. H.R. (ser. A) (1995).

Analytic note: The article at issue was published on March 15, 1987 in Forum, issue nos. 397/398, a Viennese periodical described in the proceedings both as "a publication dedicated to promoting democratic principles, the rule of law and the interests of indigents" and as "a typical magazine for intellectuals" (ein typisches Blatt der intellektuellen Szene).

Data source: HUDOC URL: https://hudoc.echr.coe.int/eng?i=001-57926</span>

<br>AN7<br><br>Citation: Hari Singh Nagra v. Kapil Sibal (2010) 7 SCC 502

Source excerpt: "The public image of the legal community is at its nadir. Influx of large numbers into the profession, deterioration of moral standards of the legal community questionable integrity of some of those who are in judiciary and the sheer economic cost of starting as a professional and sustaining one self have contributed to these falling standards.

"The judiciary, despite the above, provides a glimmer of hope for the common man. Those who adorn this institution, though tainted, have not yet lost all credibility. We have to all unite together to refurbish the image of the legal fraternity. Before we point fingers at others, let us do some soul-searching.

"For a start, let us concentrate on the junior members of the Bar. Our senior colleagues owe it to the profession to bring up the Junior Bar. This can never be done until junior members of the Bar have access to the chambers of senior lawyers. We must devise what I may call Voluntary Access Scheme: in terms of which the Supreme Court Bar Association should rotate junior members of the bar amongst the chambers of Senior Lawyers who voluntarily want to participate in this scheme. Access should be provided to at least one, if not two, junior members of the bar to each senior on the basis of rotation for 6 months at a time. This will give to the junior members the advantage of having worked with a variety of seniors. Of course, a minimum payment schedule must be part of this scheme.

"We must draw up a Code of Conduct applicable to the members of the Bar which will lay down norms not only in relation to their conduct with each other but also with reference to their conduct qua the Bench. Lawyers must refrain from shouting at each other, speaking in anger, threatening judges, threatening colleagues and the like. It is also necessary that procedures must be devised to ensure adherence to these norms.

"Entry into the profession should be limited to only those who pass an examination which may be conducted by the Bar Council of India. This, of course, requires legislation. Lawyers must get together, apply their mind to this issue and ensure the passing of this legislation.

"It seems that judges have started disciplining lawyers. Judges themselves need disciplining. The judiciary has failed in its efforts to eradicate the phenomenon of corruption. This phenomenon includes receiving monetary benefits for judicial pronouncements rendering blatantly dishonest judgments, kowtowing with political personalities and obviously favouring the Government and thereby losing all sense of objectivity. The legal community instead of publically denigrading judicial system should come forward with proposed legislation to deal with this issue. A committee must be set up by the Supreme Court Bar Association to look into the modalities of bringing about such legislation in the context of the present constitutional frame-work which provides complete protection to the judiciary.

"The issue of legal education must be addressed by the legal fraternity in cooperation with institutions providing legal education in India. Funding should be provided for studies to be conducted in such aspects of the law as required urgent attention.

"There must be greater interaction between the various Bar Associations in the country. Constant interaction will lead to exchange of information which, in turn, will enable all of us to attend urgently to the needs of the members of the legal profession.

"These are thoughts which require both immediate attention and a well thought of strategy. If we pause for a moment and think about what I have said, at least we will have made a start."

Analytic note: The case arose from a written message contributed by a Senior Advocate of the Supreme Court and a candidate for the Supreme Court Bar Association presidency, Kapil Sibal, to a publication created by an association of Supreme Court lawyers for publication in conjunction with its 1994–95 Annual Function. The publication was intended for internal distributed only, and contained contributions from, among others, the sitting Chief Justice of India and several Supreme Court judges. The publication was not sold to the public and not released to the press. But it made its way to the Times of India. It was published when Sibal submitted his candidacy for SCBA presidency.

<br>AN12<br><br>Citation: "Courts Are Established — For the People," Miami Herald, Nov. 2, 1944; "Why People Wonder," Miami Herald, Nov. 7, 1944, both reprinted in Pennekamp v. Florida, 328 U.S. 331, 336 n.4 (1946). The cartoon is taken from Scott D. Makar. 2017. "Free Press in 1940s Florida: Pennekamp v. Florida."" Journal of Supreme Court History 42(3): 295–313.

Source excerpt:

From "Courts Are Established — For the People:" "The seeming ease and pat facility with which the criminally charged have been given technical safeguard have set people to wondering whether their courts are being subverted into refuges for lawbreakers." . . . "[T]he defense got delay when it wanted and prompt decision from the court when it profited it."

From "Why People Wonder:" “Here is an example of why people wonder about the law’s delays and obstructing technicalities operating to the disadvantage of the state — which is the people — in prosecutions.

“After stalling along for months, the defense in the padlock case against the Brook Club appeared before Judge Marshall C. Wiseheart for a decision. The State Attorney was working with the grand jury. The court knocked out the injunction. There was speed, dispatch, immediate attention and action for those charged with violation of the law. So fast that the people didn’t get in a peep.

“That’s one way of gumming up prosecution. Another is to delay action. On March 29, Coy L. Jaggears, bus driver, was sentenced to fifteen days in city jail by Judge Cecil C. Curry on conviction of beating up a taxicab operator.

“The arrest precipitated the notorious bus strike. As a result, Jaggears walked out of jail after posting a $200 appeal bond. The appeal never got further.

“There you have the legal paradox, working two ways, but to the same purpose against prosecution. Speed when needed. Month after month of delay when that serves the better.”

Analytic note: The case arose from two editorials and a cartoon published in the Miami Herald in November 1944 by associate editor John D. Pennekamp, all directed at what the paper characterized as the systematic use of legal technicalities by the Circuit Court of Dade County to frustrate criminal prosecution. The first editorial, "Courts Are Established For The People," published November 2, 1944, alongside the cartoon, surveyed three pending matters involving rape indictments; the state's efforts to padlock a property; and a state injunction against a bookmaking operation. The editorial's core argument was that the judges were using procedural mechanisms to "subverted [the law] into a refuge for lawbreakers," with courts finding "every possible technicality of the law to protect the defendant" while the people's case was denied equal clarity of judicial vision. The second editorial, "Why People Wonder," revisited the padlock action more briefly: "After stalling along for months, the defense in the padlock case against the Brook Club appeared before Judge Marshall C. Wiseheart for a decision... The court knocked out the injunction. There was speed, dispatch, immediate attention and action for those charged with violation of the law. So fast that the people didn't get in a peep. That's one way of gumming up prosecution." The accompanying cartoon, drawn by Enright and captioned "But, Judge!," visualized similar accusations, depicting a judge ignoring the "PUBLIC INTEREST" while paying attention to a grinning figure labeled "DEFENDANT DISMISSED."

Data source: https://doi.org/10.5064/F6QK6YFW/JR1IMF

<br>AN9<br><br>Citation: Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918)

Analytic note: The case arose from a franchise dispute between the City of Toledo and its street railway company, whose operating licenses were set to expire in March 1914. The railway company and its creditors sought injunctive relief in federal district court. The Toledo News-Bee, a local paper, sided with the city in an editorial and cartoon. In those materials, the paper challenged the court's authority to grant relief. The district judge, though admittedly after a long period, held the paper and its editor in criminal contempt for their publications, claiming that their publications tended to obstruct the administration of justice and undermine public confidence in the court. An image of an article is supplied here.

Data source: https://doi.org/10.5064/F6QK6YFW/HWP62G

<br>AN1<br><br>Citation: Roy, Arundhati (1999). “The Greater Common Good.” In: Outlook 16.11, pp. 1–38.

Source excerpt: "I had crossed the Narmada by boat from Jalsindhi and climbed the headland on the opposite bank from where I could see, ranged across the crowns of low, bald hills, the tribal hamlets of Sikka, Surung, Neemgavan and Domkhedi. I could see their airy, fragile, homes. I could see their fields and the forests behind them. I could see little children with littler goats scuttling across the landscape like motorized peanuts. I knew I was looking at a civilization older than Hinduism, slated -- sanctioned (by the highest court in the land) -- to be drowned this monsoon when the waters of the Sardar Sarovar reservoir will rise to submerge it."

"Why did I laugh?"

"Because I suddenly remembered the tender concern with which the Supreme Court judges in Delhi (before vacating the legal stay on further construction of the Sardar Sarovar dam) had inquired whether tribal children in the resettlement colonies would have children's parks to play in. The lawyers representing the government had hastened to assure them that indeed they would, and, what's more, that there were seesaws and slides and swings in every park. I looked up at the endless sky and down at the river rushing past and for a brief, brief moment the absurdity of it all reversed my rage and I laughed. I meant no disrespect."

Analytic note: The Supreme Court of India described the facts of the case as follows: "The respondent Arundhati Roy, who is not a party to the writ proceedings, published an article entitled "The Greater Common Good" which was published in Outlook Magazine and in some portion of a book written by her. Two judges of this Court, forming the three-judge Bench felt that the comments made by her were, prima facie, a misrepresentation of the proceedings of the court. It was observed that judicial process and institution cannot be permitted to be scandalised or subjected to contumacious violation in such a blatant manner, it had been done by her. The action of the respondent had caused the court much anguish and when the court expressed its displeasure on the action of the respondent in making distorted writing or manner in which leaders of the petitioner Ms.Meda Patkar and one Dharmadikhari despite giving assurance to the court acted in breach of the injunction, the Court observed:

"We are unhappy at the way the leaders of NBA and Ms.Arundhati Roy have attempted to undermine the dignity of the Court. We expected better behaviour from them."

Showing its magnanimity, the Court declared:

"After giving this matter our thoughtful consideration and keeping in view the importance of the issue of resettlement and rehabilitation of the PAFs, which we have been monitoring for the last five years, we are not inclined to initiate proceedings against the petitioner, its leaders or Ms.Arundhati Roy. We are of the opinion, in the larger interest of the issues pending before us, that we need not pursue the matter any further. We, however, hope that what we have said above would serve the purpose and the petitioner and its leaders would hereafter desist from acting in a manner which has the tendency to interfere with the due administration of justice or which violates the injunctions issued by this Court from time to time."

"The third learned Judge also recorded his disapproval of the statement made by the respondent herein and others and felt that as the court's shoulders are broad enough to shrug off their comments and because the focus should not shift from the resettlement and rehabilitation of the oustees, no action in contempt be taken against them." Roy republished her offending article on March 7, 2002, one day after the Supreme Court announced its decision.

<br>AN10<br><br>Citation: Johnson, "The Great Judicial Slaughter House and Mausoleum: The Lord High Executioner — 'Next!' ", Denver Rocky Mountain News, June 25, 1905, at 1, available via David Hosansky, Stolen Votes and Silenced Voices, History Colorado (Jan. 26, 2024), https://www.historycolorado.org/story/2024/01/26/stolen-votes-and-silenced-voices.

Source excerpt:

Analytic note: The case arose from a contested Colorado election for governor, where the Republican controlled legislature certified the Republican candidate as the electoral winner even though evidence existed of widespread fraud. Former U.S. Senator and owner of two newspapers (the Denver Rocky Mountain News and Denver Times), published a articles and a cartoon, as the U.S. Supreme Court put it, "intimating that the conduct of the court was unconstitutional and usurping, and alleging that it was in aid of a scheme, fully explained, to seat various Republican candidates, including the governor of the state, in place of Democrats who had been elected." The cartoon has been included here. It was drawn by an artist identified only as "Johnson" and published in the Denver Rocky Mountain News, with the caption "THE GREAT JUDICIAL SLAUGHTER HOUSE AND MAUSOLEUM. The Lord High Executioner — 'NEXT!'" It depicts the Colorado Supreme Court as a commercial butcher. The cartoon combines judicial ceremony with industrial killing, suggesting that the Colorado high court lacked any pretense of impartiality, while recasting its decisions as raw partisan butchery. The image embodied Patterson's charge that the justices were not adjudicating but executing a political program.

Data source: https://doi.org/10.5064/F6QK6YFW/C9BWOQ

<br>AN5<br><br>Citation: R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632

Analytic note:  An English language translation of Shankar's autobiography does not appear to exist. The depiction provided here is taken from para. 4 of the Indian Supreme Court opinion. This case involved a 300-page autobiography written by a condemned prisoner, Gauri Shankar (a.k.a. "Auto Shankar") while confined in Chengalpattu sub-jail during 1991 for a series of murders. The proposed publisher was Nakkheeran, a Tamil-language weekly magazine based in Madras. The petitioners before the Supreme Court were R. Rajagopal, the magazine's editor and publisher, and a second associated petitioner. The autobiography recounted facts alleging that senior government officials were his partners in crime, and that police officers suppressed investigations and obstructed complaints by victims’ families, who ultimately exposed Shankar's crimes.

<br>AN3<br><br>Citation: Lopes Gomes da Silva v. Portugal, App. No. 37698/97, 2000-X Eur. Ct. H.R.

Source excerpt: An unofficial Portugese version of the opinion containing quotations of the article is available the HUDOC URL: https://hudoc.echr.coe.int/eng?i=001-58817.

Source excerpt translation: "[the Chairman of the CDS/PP] has shown himself capable of exceeding even the most vulgar of caricatures ... This is clear from the CDS leadership's unthinkable choice of candidate to head the party's list in the Lisbon City Council elections. One need only read the extracts from recent articles by Mr Silva Resende in the Jornal do Dia which we publish in this issue to form an idea of the character being backed by the new Popular Party in the country's main city council elections. As ludicrous and grotesque as this will appear, it is nevertheless true. Not in the oldest or most delapidated ruins of Salazarism could an ideologically more grotesque and more buffoonish [boçal] candidate have been dug out: such an incredible mixture of crude reactionaryism [reaccionarismo alarve], fascist bigotry and coarse anti-Semitism. Any leading figure of the Salazar regime [Estado Novo] or any mayor of Lisbon from the former regime would come across as singularly progressive compared to this brilliant find ... It would all be merely an inconsequential anecdote or a surreal political oversight if it were not revelatory of a hidden facet which the CDS is trying to disguise behind the diaphanous veil of the modern Right. Incapable of finding a credible candidate for the Lisbon City Council, which is already symptomatic of the fragility of a party desirous of presenting itself as a possible party of government, the leadership of the CDS has resorted to a character who represents the most complacent, stale and ridiculous aspects of the Portuguese right-wing. A character who seems never to have really existed and that no humorist of however dubious taste would have been capable of imagining as the last of the Salazarian abencérages [salazarenta] in the 1990s. We presume that the young leader [of the CDS/PP] believes he has found, in desperation, someone capable of attracting at least football fans, which is the domain in which Mr Silva Resende has forged a remarkable career. It would appear that the majority of young Turks among the leadership of the CDS have contented themselves with reading Mr Silva Resende's football columns while remaining unaware of the rare pearls of his political beliefs...”.

“The bald-headed Jew [Mr L. Fabius] who spends his life, during his public appearances, militating in favour of secularism and the Republic (the two pillars of religious and patriotic impiety are sufficient in themselves to enable any reader of average intelligence to decode his real intentions) concluded after the elections that they [the socialists] were defeated because of their political practice and not because of their ideals.” (Jornal do Dia, 6 April 1993)

“The Clintons' past, and above all the style of their campaign for the Whitehouse, were very revelatory of a fresh conspiracy of the Left at its most deviant: war on the property of others, the cult of agnosticism, moral relativism, social hypocrisy, the inhuman secularism of life. To obtain an idea of the forces mobilised to catapult the Clintons to power, one need only mention that the Jewish lobby paid 60% of the electoral expenses whereas it represents only 5% of the electorate.” (Jornal do Dia, 16 April 1993)

“... Americans and Russians reached an agreement to inflict a blow on Portugal in Lisbon. We were betrayed by the United States, we were betrayed by NATO, which has placed a naval fleet at the gates of Lisbon in case their blow should fail.” (Jornal do Dia, 21 May 1993)

“It is no coincidence if politicians everywhere are involved in serious corruption. This moral chaos, which threatens to suffocate the world and leads to generalised perversity and attracts divine punishment, began several years ago when the machinery of ideological poisoning and agents of the propagation of error installed themselves comfortably everywhere, when they perverted youth, converting them to idols; when they tore women from the sanctuary of the home; when they flooded the world with their exhibition of vice; and, lastly, when they infiltrated political parties, placing them at the service of impiety.” (Jornal do Dia, 25 May 1993)

Analytic note: he article at issue was an editorial published in the June 10, 1993 issue of Publico, a major Lisbon daily newspaper with wide circulation. The editorial is notable for its density of invective.

<br>AN11<br><br>Citation: Sit-Strikers Convicted, L.A. Times, Dec. 21, 1937; The Fall of an Ex-Queen, L.A. Times, Apr. 14, 1938 (both reproduced in Bridges v. California, 314 U.S. 252, 274-77 n. 19, 20 (1941)).

Source excerpt:

The first editorial, entitled "Sit-Strikers Convicted," was published in the Los Angeles Times of December 21, 1937. The salient part read:

"Those were the days when Mrs. Werner was 'Queen Helen' and it is only fair to say that to her the power was much more important than the perquisites. When the inevitable turning of the political wheel brought new figures to the front and new bosses to the back, she found her grip slipping and it was hard to take. The several cases which in recent years have brought her before the courts to defend her activities seem all examples of an energetic effort to regain and reassert her onetime influence in high places. That it should ultimately have landed her behind the bars as a convicted bribe-seeker is not illogical. But if there is logic in it, the money meant less to Mrs. Werner than the name of still being a political power, one who could do things with public officials that others could not do. To herself at least she was still Queen Helen."

Portions of a telegram critical of local courts were also published January 24 and 25, 1938 were reproduced in Bridges v. California, 314 U.S. 252, 276-77 n. 20 (1941):

“This decision is outrageous considering I.L.A. has 15 members (in San Pedro) and the International Longshoremen-Warehousemen’s Union has 3000. International Longshoremen-Warehousemen Union has petitioned the labor board for certification to represent San Pedro longshoremen with International Longshoremen Association denied representation because it represents only 15 men. Board hearing held; decision now pending. Attempted enforcement of Schmidt decision will tie up port of Los Angeles and involve entire Pacific Coast. International Longshoremen-Warehousemen Union, representing over 11,000 of the 12,000 longshoremen on the Pacific Coast, does not intend to allow state courts to override the majority vote of members in choosing its officers and representatives and to override the National Labor Relations Board.”

Analytic note: Times-Mirror Co. v. Superior Court, consolidated into Bridges v. California, 314 U.S. 252 (1941), arose from two Los Angeles Times editorials published while criminal sentencing remained pending: "Sit-Strikers Convicted" (December 21, 1937), which appeared the day before sentencing of twenty-two convicted sit-down strikers and framed the court as the institutional guarantor of an anti-labor social order; and "The Fall of an Ex-Queen" (April 14, 1938), which constructed a complete moral biography of convicted political boss Helen Werner and declared it "not illogical" that she should land "behind the bars," seemingly pronouncing a sentence eight days before the court would announce its sentence.

<br>AN13<br><br>Citation: The Court drew from a series of articles that are supplied in an Appendix to Opinion of the Court in Craig v. Harney, 331 U.S. 367, 378–83 (1947).

Analytic note: The case arose from a series of newspaper articles and one editorial published in the Corpus Christi Caller-Times between May 26 and May 31, 1945, covering a civil dispute between a serviceman and a landlord over a lease option clause. The case was tried before County Judge Joe D. Browning. The factual reporting described how Browning had granted a directed verdict for Jackson without permitting argument from either side, confined the jury overnight when it twice refused to sign the verdict, and ultimately secured the jury's signature only after defense counsel Lewright advised the jurors that Browning had the legal power to jail them indefinitely. Some of the quotations from the articles are provided here, but the Supreme Court reprinted the articles in full in an appendix.

Source excerpts:

"At 7 p.m. Browning, without listening to argument from counsel for either side on a plaintiff’s motion presented by Dudley Tarlton for Jackson, and without giving the six-man jury opportunity to weigh the evidence, instructed the jury to find against Mayes."

“Browning accepted Tarlton’s one-page motion, and without permitting argument or citation of authorities to support the motion, ruled that it be granted. The effect of this ruling was that Browning took the matter from the jury.”

"That was the travesty on justice, the judge’s refusal to hear both sides. That’s where a legal background would have served him in good stead. It is difficult to believe that any lawyer, even a hack, would have followed such high handed procedure in instructing a jury. It’s no wonder that the jury balked and public opinion is outraged."

"True, the idea that only lawyers are qualified to occupy most public offices has been run into the ground, and in most instances a competent layman would be better qualified, but the county judge’s office is an exception. He should be a competent attorney as well as a competent businessman."

"It’s the tragedy in a case of this sort that the court where the controversial decision was handed down is the court of last resort. It’s too bad that appeal can’t be made to a district court and heard by a judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make his decisions accordingly . . . There is no way of knowing whether justice was done, because the first rule of justice, giving both sides an opportunity to be heard, was repudiated."

"Browning’s behavior and attitude has brought down the wrath of public opinion upon his head, properly so. Emotions have been aggravated. American people simply don’t like the idea of such goings on, especially when a man in the service of his country seems to be getting a raw deal . . . Then the plaintiff’s counsel offered a motion for an instructed verdict for his client. It was granted immediately, without having him cite his authority or without giving the defendant’s attorney a chance to argue against it."

<br>AN8<br><br>Citation: "A Direct Challenge to Police Chief Brunskill," Saturday Press (Minneapolis, Oct. 15, 1927, at 1), available at https://www.loc.gov/item/sn90060332/.

Analytic note: The arose from nine issues of The Saturday Press, a Minneapolis weekly tabloid published between September 24 and November 19, 1927 by Jay M. Near and Howard A. Guilford. The paper's stated mission was to expose organized crime and official corruption in Prohibition-era Minneapolis. One of the publishers, Guilford, had been shot (seemingly by Chicago gangsters), and both Near and Guilford alleged that Police Chief Frank W. Brunskill declined to formally investigate the attack. The paper's targets included Brunskill, Mayor George E. Leach, and Hennepin County Attorney Floyd B. Olson. Notably, the paper's journalism was filled with virulent antisemitism. A digitized version of the article can be accessed here.

<br>AN14<br><br>Citation: Steve Goldberg, "Hearing Held About Judge," Virginian-Pilot, Oct. 1979, at B1.

Analytic note: The case arose from the publication of a news article by Steve Goldberg in the Virginian-Pilot reporting on a confidential disciplinary proceeding before Virginia's Judicial Inquiry and Review Commission targeting Juvenile and Domestic Relations Court Judge H. Warrington ("Spike") Sharp. Virginia law made it a misdemeanor to disclose commission proceedings, and Landmark Communications was convicted and fined for the publication. The article itself was fairly straightforward. It identified the judge by name, described the two-day hearing at the Holiday Inn-Scope in Norfolk, noted that the charges appeared to concern general competence, and explained the commission's structure, procedures, and potential sanctions. The image provided is poor, but the legally relevant portions of the article are reproduced here. The legally relevant portions that landed the journalist in hot water was the first sentence, identifying the judge and the proceedings.

Source excerpt:

Hearing Held About Judge

By STEVE GOLDBERG Virginia-Pilot Staff Writer

"NORFOLK — A formal hearing concerning possible disciplinary action against Juvenile and Domestic Relations Court Judge H. Warrington (Spike) Sharp was held early last month.

The two-day hearing at Holiday Inn-Scope, conducted by members of the state Judicial Inquiry and Review Commission, apparently stemmed from charges of incompetence against the 55-year-old judge.

No formal complaint has been filed by the commission against Sharp, indicating either that the five-man panel found insufficient cause for action or that the case is still under review.

No commission member would say which is the case.

The review board is the state's most serious mechanism for policing judicial conduct. Its decision to press a formal complaint to the State Supreme Court could lead to retirement, censure, or removal from office."

<br>AN6<br><br>Citation: In Re: Harijai Singh, In Re: Vijay Kumar, (1996) 6 SCC 466.

Source excerpt:  "You should not be astonished if you find the names of two sons of Mr. Ahmadi, Chief Justice of India in the list of the discretionary quota."

Analytic note: The case arose from two news items published simultaneously on March 10, 1996, which included a captioned "Pumps for all!" in the English-language Sunday Tribune (Chandigarh) and a substantially similar Hindi-language piece in Punjab Kesari (Jalandhar), both written by the same journalist, Dina Nath Misra, a reporter of approximately four decades' experience. The items appeared while the Supreme Court was already addressing a matter challenging the Petroleum and Natural Gas Ministry's allegedly corrupt exercise of its discretionary power to allot retail petrol pump outlets and LPG dealerships. The articles, which appear in full in the legal opinion, alleged a pattern of nepotistic allotments by Petroleum Minister Capt. Satish Sharma, naming seventeen relatives of Prime Minister P.V. Narasimha Rao, two children of Lok Sabha Speaker Shivraj Patil, and "two sons of a Senior Judge of the Supreme Court." All three respondents admitted the falsity of the items, attributed the error to an unnamed but previously reliable source, and tendered unqualified apologies. The Court accepted them while directing front-page boxed retractions, characterizing Misra's conduct as "gross carelessness" incompatible with the professional standards of a journalist of his standing.

<br>AN1<br><br>Citation: Roy, Arundhati (1999). “The Greater Common Good.” In: Outlook 16.11, pp. 1–38.

Source excerpt: "I had crossed the Narmada by boat from Jalsindhi and climbed the headland on the opposite bank from where I could see, ranged across the crowns of low, bald hills, the tribal hamlets of Sikka, Surung, Neemgavan and Domkhedi. I could see their airy, fragile, homes. I could see their fields and the forests behind them. I could see little children with littler goats scuttling across the landscape like motorized peanuts. I knew I was looking at a civilization older than Hinduism, slated -- sanctioned (by the highest court in the land) -- to be drowned this monsoon when the waters of the Sardar Sarovar reservoir will rise to submerge it."

"Why did I laugh?"

"Because I suddenly remembered the tender concern with which the Supreme Court judges in Delhi (before vacating the legal stay on further construction of the Sardar Sarovar dam) had inquired whether tribal children in the resettlement colonies would have children's parks to play in. The lawyers representing the government had hastened to assure them that indeed they would, and, what's more, that there were seesaws and slides and swings in every park. I looked up at the endless sky and down at the river rushing past and for a brief, brief moment the absurdity of it all reversed my rage and I laughed. I meant no disrespect."

Analytic note: The Supreme Court of India described the facts of the case as follows: "The respondent Arundhati Roy, who is not a party to the writ proceedings, published an article entitled "The Greater Common Good" which was published in Outlook Magazine and in some portion of a book written by her. Two judges of this Court, forming the three-judge Bench felt that the comments made by her were, prima facie, a misrepresentation of the proceedings of the court. It was observed that judicial process and institution cannot be permitted to be scandalised or subjected to contumacious violation in such a blatant manner, it had been done by her. The action of the respondent had caused the court much anguish and when the court expressed its displeasure on the action of the respondent in making distorted writing or manner in which leaders of the petitioner Ms.Meda Patkar and one Dharmadikhari despite giving assurance to the court acted in breach of the injunction, the Court observed:

"We are unhappy at the way the leaders of NBA and Ms.Arundhati Roy have attempted to undermine the dignity of the Court. We expected better behaviour from them."

Showing its magnanimity, the Court declared:

"After giving this matter our thoughtful consideration and keeping in view the importance of the issue of resettlement and rehabilitation of the PAFs, which we have been monitoring for the last five years, we are not inclined to initiate proceedings against the petitioner, its leaders or Ms.Arundhati Roy. We are of the opinion, in the larger interest of the issues pending before us, that we need not pursue the matter any further. We, however, hope that what we have said above would serve the purpose and the petitioner and its leaders would hereafter desist from acting in a manner which has the tendency to interfere with the due administration of justice or which violates the injunctions issued by this Court from time to time."

"The third learned Judge also recorded his disapproval of the statement made by the respondent herein and others and felt that as the court's shoulders are broad enough to shrug off their comments and because the focus should not shift from the resettlement and rehabilitation of the oustees, no action in contempt be taken against them." Roy republished her offending article on March 7, 2002, one day after the Supreme Court announced its decision.

<br>AN12<br><br>Citation: "Courts Are Established — For the People," Miami Herald, Nov. 2, 1944; "Why People Wonder," Miami Herald, Nov. 7, 1944, both reprinted in Pennekamp v. Florida, 328 U.S. 331, 336 n.4 (1946). The cartoon is taken from Scott D. Makar. 2017. "Free Press in 1940s Florida: Pennekamp v. Florida."" Journal of Supreme Court History 42(3): 295–313.

Source excerpt:

From "Courts Are Established — For the People:" "The seeming ease and pat facility with which the criminally charged have been given technical safeguard have set people to wondering whether their courts are being subverted into refuges for lawbreakers." . . . "[T]he defense got delay when it wanted and prompt decision from the court when it profited it."

From "Why People Wonder:" “Here is an example of why people wonder about the law’s delays and obstructing technicalities operating to the disadvantage of the state — which is the people — in prosecutions.

“After stalling along for months, the defense in the padlock case against the Brook Club appeared before Judge Marshall C. Wiseheart for a decision. The State Attorney was working with the grand jury. The court knocked out the injunction. There was speed, dispatch, immediate attention and action for those charged with violation of the law. So fast that the people didn’t get in a peep.

“That’s one way of gumming up prosecution. Another is to delay action. On March 29, Coy L. Jaggears, bus driver, was sentenced to fifteen days in city jail by Judge Cecil C. Curry on conviction of beating up a taxicab operator.

“The arrest precipitated the notorious bus strike. As a result, Jaggears walked out of jail after posting a $200 appeal bond. The appeal never got further.

“There you have the legal paradox, working two ways, but to the same purpose against prosecution. Speed when needed. Month after month of delay when that serves the better.”

Analytic note: The case arose from two editorials and a cartoon published in the Miami Herald in November 1944 by associate editor John D. Pennekamp, all directed at what the paper characterized as the systematic use of legal technicalities by the Circuit Court of Dade County to frustrate criminal prosecution. The first editorial, "Courts Are Established For The People," published November 2, 1944, alongside the cartoon, surveyed three pending matters involving rape indictments; the state's efforts to padlock a property; and a state injunction against a bookmaking operation. The editorial's core argument was that the judges were using procedural mechanisms to "subverted [the law] into a refuge for lawbreakers," with courts finding "every possible technicality of the law to protect the defendant" while the people's case was denied equal clarity of judicial vision. The second editorial, "Why People Wonder," revisited the padlock action more briefly: "After stalling along for months, the defense in the padlock case against the Brook Club appeared before Judge Marshall C. Wiseheart for a decision... The court knocked out the injunction. There was speed, dispatch, immediate attention and action for those charged with violation of the law. So fast that the people didn't get in a peep. That's one way of gumming up prosecution." The accompanying cartoon, drawn by Enright and captioned "But, Judge!," visualized similar accusations, depicting a judge ignoring the "PUBLIC INTEREST" while paying attention to a grinning figure labeled "DEFENDANT DISMISSED."

Data source: https://doi.org/10.5064/F6QK6YFW/JR1IMF

<br>AN7<br><br>Citation: Hari Singh Nagra v. Kapil Sibal (2010) 7 SCC 502

Source excerpt: "The public image of the legal community is at its nadir. Influx of large numbers into the profession, deterioration of moral standards of the legal community questionable integrity of some of those who are in judiciary and the sheer economic cost of starting as a professional and sustaining one self have contributed to these falling standards.

"The judiciary, despite the above, provides a glimmer of hope for the common man. Those who adorn this institution, though tainted, have not yet lost all credibility. We have to all unite together to refurbish the image of the legal fraternity. Before we point fingers at others, let us do some soul-searching.

"For a start, let us concentrate on the junior members of the Bar. Our senior colleagues owe it to the profession to bring up the Junior Bar. This can never be done until junior members of the Bar have access to the chambers of senior lawyers. We must devise what I may call Voluntary Access Scheme: in terms of which the Supreme Court Bar Association should rotate junior members of the bar amongst the chambers of Senior Lawyers who voluntarily want to participate in this scheme. Access should be provided to at least one, if not two, junior members of the bar to each senior on the basis of rotation for 6 months at a time. This will give to the junior members the advantage of having worked with a variety of seniors. Of course, a minimum payment schedule must be part of this scheme.

"We must draw up a Code of Conduct applicable to the members of the Bar which will lay down norms not only in relation to their conduct with each other but also with reference to their conduct qua the Bench. Lawyers must refrain from shouting at each other, speaking in anger, threatening judges, threatening colleagues and the like. It is also necessary that procedures must be devised to ensure adherence to these norms.

"Entry into the profession should be limited to only those who pass an examination which may be conducted by the Bar Council of India. This, of course, requires legislation. Lawyers must get together, apply their mind to this issue and ensure the passing of this legislation.

"It seems that judges have started disciplining lawyers. Judges themselves need disciplining. The judiciary has failed in its efforts to eradicate the phenomenon of corruption. This phenomenon includes receiving monetary benefits for judicial pronouncements rendering blatantly dishonest judgments, kowtowing with political personalities and obviously favouring the Government and thereby losing all sense of objectivity. The legal community instead of publically denigrading judicial system should come forward with proposed legislation to deal with this issue. A committee must be set up by the Supreme Court Bar Association to look into the modalities of bringing about such legislation in the context of the present constitutional frame-work which provides complete protection to the judiciary.

"The issue of legal education must be addressed by the legal fraternity in cooperation with institutions providing legal education in India. Funding should be provided for studies to be conducted in such aspects of the law as required urgent attention.

"There must be greater interaction between the various Bar Associations in the country. Constant interaction will lead to exchange of information which, in turn, will enable all of us to attend urgently to the needs of the members of the legal profession.

"These are thoughts which require both immediate attention and a well thought of strategy. If we pause for a moment and think about what I have said, at least we will have made a start."

Analytic note: The case arose from a written message contributed by a Senior Advocate of the Supreme Court and a candidate for the Supreme Court Bar Association presidency, Kapil Sibal, to a publication created by an association of Supreme Court lawyers for publication in conjunction with its 1994–95 Annual Function. The publication was intended for internal distributed only, and contained contributions from, among others, the sitting Chief Justice of India and several Supreme Court judges. The publication was not sold to the public and not released to the press. But it made its way to the Times of India. It was published when Sibal submitted his candidacy for SCBA presidency.

<br>AN8<br><br>Citation: "A Direct Challenge to Police Chief Brunskill," Saturday Press (Minneapolis, Oct. 15, 1927, at 1), available at https://www.loc.gov/item/sn90060332/.

Analytic note: The arose from nine issues of The Saturday Press, a Minneapolis weekly tabloid published between September 24 and November 19, 1927 by Jay M. Near and Howard A. Guilford. The paper's stated mission was to expose organized crime and official corruption in Prohibition-era Minneapolis. One of the publishers, Guilford, had been shot (seemingly by Chicago gangsters), and both Near and Guilford alleged that Police Chief Frank W. Brunskill declined to formally investigate the attack. The paper's targets included Brunskill, Mayor George E. Leach, and Hennepin County Attorney Floyd B. Olson. Notably, the paper's journalism was filled with virulent antisemitism. A digitized version of the article can be accessed here.

<br>AN9<br><br>Citation: Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918)

Analytic note: The case arose from a franchise dispute between the City of Toledo and its street railway company, whose operating licenses were set to expire in March 1914. The railway company and its creditors sought injunctive relief in federal district court. The Toledo News-Bee, a local paper, sided with the city in an editorial and cartoon. In those materials, the paper challenged the court's authority to grant relief. The district judge, though admittedly after a long period, held the paper and its editor in criminal contempt for their publications, claiming that their publications tended to obstruct the administration of justice and undermine public confidence in the court. An image of an article is supplied here.

Data source: https://doi.org/10.5064/F6QK6YFW/HWP62G

<br>AN13<br><br>Citation: The Court drew from a series of articles that are supplied in an Appendix to Opinion of the Court in Craig v. Harney, 331 U.S. 367, 378–83 (1947).

Analytic note: The case arose from a series of newspaper articles and one editorial published in the Corpus Christi Caller-Times between May 26 and May 31, 1945, covering a civil dispute between a serviceman and a landlord over a lease option clause. The case was tried before County Judge Joe D. Browning. The factual reporting described how Browning had granted a directed verdict for Jackson without permitting argument from either side, confined the jury overnight when it twice refused to sign the verdict, and ultimately secured the jury's signature only after defense counsel Lewright advised the jurors that Browning had the legal power to jail them indefinitely. Some of the quotations from the articles are provided here, but the Supreme Court reprinted the articles in full in an appendix.

Source excerpts:

"At 7 p.m. Browning, without listening to argument from counsel for either side on a plaintiff’s motion presented by Dudley Tarlton for Jackson, and without giving the six-man jury opportunity to weigh the evidence, instructed the jury to find against Mayes."

“Browning accepted Tarlton’s one-page motion, and without permitting argument or citation of authorities to support the motion, ruled that it be granted. The effect of this ruling was that Browning took the matter from the jury.”

"That was the travesty on justice, the judge’s refusal to hear both sides. That’s where a legal background would have served him in good stead. It is difficult to believe that any lawyer, even a hack, would have followed such high handed procedure in instructing a jury. It’s no wonder that the jury balked and public opinion is outraged."

"True, the idea that only lawyers are qualified to occupy most public offices has been run into the ground, and in most instances a competent layman would be better qualified, but the county judge’s office is an exception. He should be a competent attorney as well as a competent businessman."

"It’s the tragedy in a case of this sort that the court where the controversial decision was handed down is the court of last resort. It’s too bad that appeal can’t be made to a district court and heard by a judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make his decisions accordingly . . . There is no way of knowing whether justice was done, because the first rule of justice, giving both sides an opportunity to be heard, was repudiated."

"Browning’s behavior and attitude has brought down the wrath of public opinion upon his head, properly so. Emotions have been aggravated. American people simply don’t like the idea of such goings on, especially when a man in the service of his country seems to be getting a raw deal . . . Then the plaintiff’s counsel offered a motion for an instructed verdict for his client. It was granted immediately, without having him cite his authority or without giving the defendant’s attorney a chance to argue against it."

<br>AN10<br><br>Citation: Johnson, "The Great Judicial Slaughter House and Mausoleum: The Lord High Executioner — 'Next!' ", Denver Rocky Mountain News, June 25, 1905, at 1, available via David Hosansky, Stolen Votes and Silenced Voices, History Colorado (Jan. 26, 2024), https://www.historycolorado.org/story/2024/01/26/stolen-votes-and-silenced-voices.

Source excerpt:

Analytic note: The case arose from a contested Colorado election for governor, where the Republican controlled legislature certified the Republican candidate as the electoral winner even though evidence existed of widespread fraud. Former U.S. Senator and owner of two newspapers (the Denver Rocky Mountain News and Denver Times), published a articles and a cartoon, as the U.S. Supreme Court put it, "intimating that the conduct of the court was unconstitutional and usurping, and alleging that it was in aid of a scheme, fully explained, to seat various Republican candidates, including the governor of the state, in place of Democrats who had been elected." The cartoon has been included here. It was drawn by an artist identified only as "Johnson" and published in the Denver Rocky Mountain News, with the caption "THE GREAT JUDICIAL SLAUGHTER HOUSE AND MAUSOLEUM. The Lord High Executioner — 'NEXT!'" It depicts the Colorado Supreme Court as a commercial butcher. The cartoon combines judicial ceremony with industrial killing, suggesting that the Colorado high court lacked any pretense of impartiality, while recasting its decisions as raw partisan butchery. The image embodied Patterson's charge that the justices were not adjudicating but executing a political program.

Data source: https://doi.org/10.5064/F6QK6YFW/C9BWOQ

<br>AN3<br><br>Citation: Lopes Gomes da Silva v. Portugal, App. No. 37698/97, 2000-X Eur. Ct. H.R.

Source excerpt: An unofficial Portugese version of the opinion containing quotations of the article is available the HUDOC URL: https://hudoc.echr.coe.int/eng?i=001-58817.

Source excerpt translation: "[the Chairman of the CDS/PP] has shown himself capable of exceeding even the most vulgar of caricatures ... This is clear from the CDS leadership's unthinkable choice of candidate to head the party's list in the Lisbon City Council elections. One need only read the extracts from recent articles by Mr Silva Resende in the Jornal do Dia which we publish in this issue to form an idea of the character being backed by the new Popular Party in the country's main city council elections. As ludicrous and grotesque as this will appear, it is nevertheless true. Not in the oldest or most delapidated ruins of Salazarism could an ideologically more grotesque and more buffoonish [boçal] candidate have been dug out: such an incredible mixture of crude reactionaryism [reaccionarismo alarve], fascist bigotry and coarse anti-Semitism. Any leading figure of the Salazar regime [Estado Novo] or any mayor of Lisbon from the former regime would come across as singularly progressive compared to this brilliant find ... It would all be merely an inconsequential anecdote or a surreal political oversight if it were not revelatory of a hidden facet which the CDS is trying to disguise behind the diaphanous veil of the modern Right. Incapable of finding a credible candidate for the Lisbon City Council, which is already symptomatic of the fragility of a party desirous of presenting itself as a possible party of government, the leadership of the CDS has resorted to a character who represents the most complacent, stale and ridiculous aspects of the Portuguese right-wing. A character who seems never to have really existed and that no humorist of however dubious taste would have been capable of imagining as the last of the Salazarian abencérages [salazarenta] in the 1990s. We presume that the young leader [of the CDS/PP] believes he has found, in desperation, someone capable of attracting at least football fans, which is the domain in which Mr Silva Resende has forged a remarkable career. It would appear that the majority of young Turks among the leadership of the CDS have contented themselves with reading Mr Silva Resende's football columns while remaining unaware of the rare pearls of his political beliefs...”.

“The bald-headed Jew [Mr L. Fabius] who spends his life, during his public appearances, militating in favour of secularism and the Republic (the two pillars of religious and patriotic impiety are sufficient in themselves to enable any reader of average intelligence to decode his real intentions) concluded after the elections that they [the socialists] were defeated because of their political practice and not because of their ideals.” (Jornal do Dia, 6 April 1993)

“The Clintons' past, and above all the style of their campaign for the Whitehouse, were very revelatory of a fresh conspiracy of the Left at its most deviant: war on the property of others, the cult of agnosticism, moral relativism, social hypocrisy, the inhuman secularism of life. To obtain an idea of the forces mobilised to catapult the Clintons to power, one need only mention that the Jewish lobby paid 60% of the electoral expenses whereas it represents only 5% of the electorate.” (Jornal do Dia, 16 April 1993)

“... Americans and Russians reached an agreement to inflict a blow on Portugal in Lisbon. We were betrayed by the United States, we were betrayed by NATO, which has placed a naval fleet at the gates of Lisbon in case their blow should fail.” (Jornal do Dia, 21 May 1993)

“It is no coincidence if politicians everywhere are involved in serious corruption. This moral chaos, which threatens to suffocate the world and leads to generalised perversity and attracts divine punishment, began several years ago when the machinery of ideological poisoning and agents of the propagation of error installed themselves comfortably everywhere, when they perverted youth, converting them to idols; when they tore women from the sanctuary of the home; when they flooded the world with their exhibition of vice; and, lastly, when they infiltrated political parties, placing them at the service of impiety.” (Jornal do Dia, 25 May 1993)

Analytic note: he article at issue was an editorial published in the June 10, 1993 issue of Publico, a major Lisbon daily newspaper with wide circulation. The editorial is notable for its density of invective.

<br>AN6<br><br>Citation: In Re: Harijai Singh, In Re: Vijay Kumar, (1996) 6 SCC 466.

Source excerpt:  "You should not be astonished if you find the names of two sons of Mr. Ahmadi, Chief Justice of India in the list of the discretionary quota."

Analytic note: The case arose from two news items published simultaneously on March 10, 1996, which included a captioned "Pumps for all!" in the English-language Sunday Tribune (Chandigarh) and a substantially similar Hindi-language piece in Punjab Kesari (Jalandhar), both written by the same journalist, Dina Nath Misra, a reporter of approximately four decades' experience. The items appeared while the Supreme Court was already addressing a matter challenging the Petroleum and Natural Gas Ministry's allegedly corrupt exercise of its discretionary power to allot retail petrol pump outlets and LPG dealerships. The articles, which appear in full in the legal opinion, alleged a pattern of nepotistic allotments by Petroleum Minister Capt. Satish Sharma, naming seventeen relatives of Prime Minister P.V. Narasimha Rao, two children of Lok Sabha Speaker Shivraj Patil, and "two sons of a Senior Judge of the Supreme Court." All three respondents admitted the falsity of the items, attributed the error to an unnamed but previously reliable source, and tendered unqualified apologies. The Court accepted them while directing front-page boxed retractions, characterizing Misra's conduct as "gross carelessness" incompatible with the professional standards of a journalist of his standing.

<br>AN2<br><br>Citation: Jucha & Żak v. Poland, App. No. 19127/06, Eur. Ct. H.R. (Oct. 23, 2012), https://hudoc.echr.coe.int/eng?i=001-113919.

Analytic note: The original article giving rise to the litigation appeared in the 28 January 2004 and 4 February 2004 issue of TEMI, a local weekly newspaper based in Tarnów, Poland. The first applicant, Dorota Jucha, was a staff journalist there; the second applicant, Tomasz Żak, was its editor-in-chief. The articles at issue formed part of a series of six pieces titled "Marek C. w epizodach" ("Marek C. in Episodes"), all written by Jucha. The Polish version of the article can be found in the ECtHR decision published in Polish, available via the URL provided above.

Source excerpt translation:

Marek C. in episodes

M.C. is certainly a colourful character. This Tarnów councillor, serving his third mandate on the municipal council, tried to become the President of Poland and a member of the Senate. Currently, he is involved in many court cases and is again becoming the subject of scandals.

Everyone remembers well that at the beginning of winter Councillor C. was involved in the eviction of two pregnant women from a flat located at ... Street in Tarnów. Everyone also remembers the explanation of C. who described one of the evicted women as running a shebeen and suggested that she together with her daughter were women of easy virtue. ...

People don't want to speak about C. And if they do, they speak about him as if he were dead – either well or nothing. Otherwise they risk to be taken to court and charged with defamation or breach of his personal rights. The list of persons who have met him in a courtroom is long and new names appear on it all the time. ...

For years the activity of M.C. has been based on balancing on the edge of the law, and even on breaking it. C. is most frequently accused of denigrating people and undermining their authority and of disseminating untruthful information about them. This includes information which suggests corruption links between people whom C. dislikes for reasons exclusively known to him. And that is how the articles and paragraphs of the Criminal Code which are being breached by councillor C. – without much notice on his part – proliferate.

Colleagues on the [municipal] council

People still don't want to speak about C. Are they afraid? Of what? Z.J., formerly for many years chairman of the Tarnów Municipal Council, refused to speak. Similarly, J.R., former mayor, did not want to say anything. (...)

However, A.K., the current chairman of the Municipal Board spoke:

"M.C. is a very touchy person, often he does not weigh his words. Even if a mild opinion is expressed about him, he still considers himself to be offended. At the same time he uses words which in the language of people with at least a minimum of good manners are considered inappropriate. I said already once to Mr C. that his character was not oriented on construction, but on destruction. (...)"

Mayor M.B. does not want to comment on councillor C.'s behaviour. He says that not because he is afraid, but because he thinks that there is nothing to comment on:

"Cooperation with this councillor is entirely out of the question. From his part there is only constant criticism, attack, and most frequently without any order, repetition of the same arguments. Mr C. criticises everything and all the time. ..."

Desk for the councillor

M.C. has ambitions and plans. He wants to become the President of Poland, or mayor of Tarnów, or a member of parliament. And if there are no elections, then he applies for the job of director of the Żabno Cultural Centre. There also without success. Everywhere and on every occasion he promises something. Up to now it would be difficult to find in his CV any positive achievements or just partial fulfilment of his various promises, including the electoral ones.

Sometimes C. attempted to get other "inferior" positions, compared to a chair in the presidential palace. For example, the mayor's plenipotentiary for the establishment of a university in Tarnów. It was being said that an agreement on the taking of this position by C. would be one possible way of calming the political excesses of the councillor. He did not get the position. Unofficially it was being said that similar arguments [were raised] when C. attempted to get another job, namely that of deputy head of the municipal police in Tarnów. This also failed. ... And could it be that his venomous aversion to the media, and in particular to the largest weekly in the region, is the result of its refusing his offer to become the editor in chief of the paper, or is that just a coincidence?

<br>AN5<br><br>Citation: R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632

Analytic note:  An English language translation of Shankar's autobiography does not appear to exist. The depiction provided here is taken from para. 4 of the Indian Supreme Court opinion. This case involved a 300-page autobiography written by a condemned prisoner, Gauri Shankar (a.k.a. "Auto Shankar") while confined in Chengalpattu sub-jail during 1991 for a series of murders. The proposed publisher was Nakkheeran, a Tamil-language weekly magazine based in Madras. The petitioners before the Supreme Court were R. Rajagopal, the magazine's editor and publisher, and a second associated petitioner. The autobiography recounted facts alleging that senior government officials were his partners in crime, and that police officers suppressed investigations and obstructed complaints by victims’ families, who ultimately exposed Shankar's crimes.

<br>AN4<br><br>Citation: Prager & Oberschlick v. Austria, App. No. 15974/90, 313 Eur. Ct. H.R. (ser. A) (1995).

Analytic note: The article at issue was published on March 15, 1987 in Forum, issue nos. 397/398, a Viennese periodical described in the proceedings both as "a publication dedicated to promoting democratic principles, the rule of law and the interests of indigents" and as "a typical magazine for intellectuals" (ein typisches Blatt der intellektuellen Szene).

Data source: HUDOC URL: https://hudoc.echr.coe.int/eng?i=001-57926</span>

<br>AN14<br><br>Citation: Steve Goldberg, "Hearing Held About Judge," Virginian-Pilot, Oct. 1979, at B1.

Analytic note: The case arose from the publication of a news article by Steve Goldberg in the Virginian-Pilot reporting on a confidential disciplinary proceeding before Virginia's Judicial Inquiry and Review Commission targeting Juvenile and Domestic Relations Court Judge H. Warrington ("Spike") Sharp. Virginia law made it a misdemeanor to disclose commission proceedings, and Landmark Communications was convicted and fined for the publication. The article itself was fairly straightforward. It identified the judge by name, described the two-day hearing at the Holiday Inn-Scope in Norfolk, noted that the charges appeared to concern general competence, and explained the commission's structure, procedures, and potential sanctions. The image provided is poor, but the legally relevant portions of the article are reproduced here. The legally relevant portions that landed the journalist in hot water was the first sentence, identifying the judge and the proceedings.

Source excerpt:

Hearing Held About Judge

By STEVE GOLDBERG Virginia-Pilot Staff Writer

"NORFOLK — A formal hearing concerning possible disciplinary action against Juvenile and Domestic Relations Court Judge H. Warrington (Spike) Sharp was held early last month.

The two-day hearing at Holiday Inn-Scope, conducted by members of the state Judicial Inquiry and Review Commission, apparently stemmed from charges of incompetence against the 55-year-old judge.

No formal complaint has been filed by the commission against Sharp, indicating either that the five-man panel found insufficient cause for action or that the case is still under review.

No commission member would say which is the case.

The review board is the state's most serious mechanism for policing judicial conduct. Its decision to press a formal complaint to the State Supreme Court could lead to retirement, censure, or removal from office."

<br>AN11<br><br>Citation: Sit-Strikers Convicted, L.A. Times, Dec. 21, 1937; The Fall of an Ex-Queen, L.A. Times, Apr. 14, 1938 (both reproduced in Bridges v. California, 314 U.S. 252, 274-77 n. 19, 20 (1941)).

Source excerpt:

The first editorial, entitled "Sit-Strikers Convicted," was published in the Los Angeles Times of December 21, 1937. The salient part read:

"Those were the days when Mrs. Werner was 'Queen Helen' and it is only fair to say that to her the power was much more important than the perquisites. When the inevitable turning of the political wheel brought new figures to the front and new bosses to the back, she found her grip slipping and it was hard to take. The several cases which in recent years have brought her before the courts to defend her activities seem all examples of an energetic effort to regain and reassert her onetime influence in high places. That it should ultimately have landed her behind the bars as a convicted bribe-seeker is not illogical. But if there is logic in it, the money meant less to Mrs. Werner than the name of still being a political power, one who could do things with public officials that others could not do. To herself at least she was still Queen Helen."

Portions of a telegram critical of local courts were also published January 24 and 25, 1938 were reproduced in Bridges v. California, 314 U.S. 252, 276-77 n. 20 (1941):

“This decision is outrageous considering I.L.A. has 15 members (in San Pedro) and the International Longshoremen-Warehousemen’s Union has 3000. International Longshoremen-Warehousemen Union has petitioned the labor board for certification to represent San Pedro longshoremen with International Longshoremen Association denied representation because it represents only 15 men. Board hearing held; decision now pending. Attempted enforcement of Schmidt decision will tie up port of Los Angeles and involve entire Pacific Coast. International Longshoremen-Warehousemen Union, representing over 11,000 of the 12,000 longshoremen on the Pacific Coast, does not intend to allow state courts to override the majority vote of members in choosing its officers and representatives and to override the National Labor Relations Board.”

Analytic note: Times-Mirror Co. v. Superior Court, consolidated into Bridges v. California, 314 U.S. 252 (1941), arose from two Los Angeles Times editorials published while criminal sentencing remained pending: "Sit-Strikers Convicted" (December 21, 1937), which appeared the day before sentencing of twenty-two convicted sit-down strikers and framed the court as the institutional guarantor of an anti-labor social order; and "The Fall of an Ex-Queen" (April 14, 1938), which constructed a complete moral biography of convicted political boss Helen Werner and declared it "not illogical" that she should land "behind the bars," seemingly pronouncing a sentence eight days before the court would announce its sentence.

<br>AN1<br><br>This article uses Annotation for Transparent Inquiry (ATI) to report additional qualitative evidence, mainly visual material collected via direct observation and retrieved from local, community-kept archives. These annotations are included in the section "Tracing the Process: Keeping the Memory of Resistance Alive" (pp. 23-30).

<br>This is an Annotation for Transparent Inquiry project, published by the Qualitative Data Repository.

The Data Overview discusses project context, data generation and analysis, and logic of annotation.

Please cite as:

Cremaschi, Simone; Masullo, Juan. 2024. "Political Legacies of Wartime Resistance". Qualitative Data Repository. https://doi.org/10.5064/F6F2SBHT. QDR Main Collection.

Learn more about ATI here.

<br>AN7<br><br>Physical and experiential memorialization can be combined. This picture is a clear example of this combination. One of the plaques commemorating those fallen in the resistance, located in the main square of Corvorano, was put together in 1995 in collaboration with local secondary school students (Scuola Media). The text reads: "To the fallen of Corvorano: Each person who died carries with him/her a story important to build the history of humanity.” Picture taken by the authors. April 2022.

<br>AN10<br><br>ANPI has been a key actor in the network of memory entrepreneurs in Corvorano. While ANPI exists in many other places, Corvorano’s chapter is particularly active and robust. In the picture, an ANPI leader is leaving flowers at one of the local tombstones on Liberation Day. Picture taken by the authors. April 2022.

<br>AN3<br><br>Memory Garden in Corvorano (picture on the left). Inaugurated in 2022. Pictures taken by the authors. April 2022. Each pole represents a fallen community member who participated in the Resistance. At the bottom of each pole, a colored stone has the name of the fallen person (picture on the right, partisan's name is blurred to preserve anonymization). Memoriae and other local associations coordinated the project. Several community members proposed projects for this memory garden, and the organizers selected the winner. Something that the organizers particularly valued about this project was the involvement of children in it. Children were actively involved, for example, by coloring the stones and writing the family names on them.

<br>AN2<br><br>This map, found in a local archive, shows the location of the Battalion's central command, the bases of the partisan groups, and the place of residence of individual partisans in Corvorano between 1944 and 1945. Picture taken by the authors. April 2022.

<br>AN5<br><br>The first picture (left side), retrieved from local archives, shows the original monument; the second picture (right side), shows the current monument. The monument was rebuilt in 1995. The contemporary picture reflects how the community makes efforts to keep the monument "alive" with flowers and ribbons. The picture was taken in mid-April, which made us think that this special attention was due to the proximity of Liberation Day. Local actors reckon that there is more attention paid to these issues during the Liberation month, but stressed that they try to keep flowers and decorations throughout the entire year. Pictures taken by the authors. April 2022.

<br>AN11<br><br>There were also active efforts to promote the campaign online. This screenshot shows how the City Hall endorsed and promoted the campaign via Facebook. The picture shows Corvorano's Mayor signing the petition and encouraging residents to follow suit. While efforts in Corvorano were mostly community-based, official sanctioning of memorialization efforts can boost its effect (Fouka & Voth, 2023).

<br>AN12<br><br>Examples of such documentary material abound, and we retrieved several from local archives during fieldwork. Here, as an example, we show a picture of the DVD and book assembled in 2015, reconstructing the process by which the municipality decided to change the street names in the 1970s. On it, you can see the names/logos of many of the organized memory entrepreneurs who participated, in collaboration with the local and regional governments, in this project. Both ANPI and Memoriae are represented on it. This material is extremely rich: not only does it show that the process was not smooth given the multiple political forces included, but it also documents the names and stories of several partisans from Corvorano. These materials were provided to us by the Memoriae's leadership.

<br>AN9<br><br>While in the field, we had the opportunity to participate in a "tour" of the different tombstones throughout the municipality's urban and rural areas with the local cycling club. The only person whose face is not blurred is one of the authors. Pictures taken by authors. April 2022.

<br>AN4<br><br>Section of the municipality's cemetery devoted to Partisans. A small building in the cemetery was built to commemorate the Resistance movement. The building hosts the names and photos of community members participating in the resistance. Local members constantly put new flowers to decorate the building, and every 25th of April, the community, led by the civic associations and representatives of the City Hall, visits the building and starts there the "tour" of the multiple tombs commemorating the Resistance throughout the territory. Picture taken by the authors. April 2022.

<br>AN8<br><br>Pictures of the cover and the first page of the print-outs. Here, you can see that the local elementary school led the project. The cover shows a drawing, made by a school student, of the aforementioned monument of the mother holding her fallen son in the main square in front of the City Hall. The first page shows a picture of the nine students actively involved in the project. This copy of the printouts was retrieved in a local archive. Pictures taken by the authors. April 2022.

<br>AN6<br><br>This picture shows how generic and localized references coexist in street names in Corvorano. Next to a generic street name about those fallen fighting for liberation stands a street name dedicated to two brothers who fought together in the local resistance band. We have blurred the name out to maintain the anonymity of the place. Given the highly localized nature of these memorialization efforts, the name of this street can easily make the place identifiable. Picture taken by the authors. April 2022.

<br>AN34<br><br>Source Excerpt: Article 21 states, “(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Available at http://www.un.org/en/universal-declaration-human-rights/ (last accessed August 16, 2018). Archived URL

There was some debate about whether Article 21 should also include a provision in favor of political parties, to which the Soviet delegation successfully objected. However, political parties were implicitly protected via Article 2, according to Morsink (1999, 61) in his definitive history: “all the articles in the Declaration are subject to the prohibition of discrimination on the grounds stated in Article 2. That means that in his or her enjoyment of the rights of Article 21 no one may be discriminated against on the basis of ‘political or other opinion.’ This connection between Article 21 and Article 2 was not lost on the drafters.”

<br>AN26<br><br>Source Excerpt: This general comment concerned “[t]he right to participate in public affairs, voting rights, and the right of equal access to public service.” See UN Committee on Human Rights, General Comment 25, July 12, 1996, available from the Organization for Security and Co-operation in Europe at https://www.osce.org/odihr/elections/19154 (last accessed September 13, 2018). Archived URL

<br>AN25<br><br>Source Excerpt: The full text reads: “Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. In the context of the above, the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached. The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.” See “Vienna Declaration and Programme of Action,” https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx (last accessed January 24, 2020). Archived URL

<br>AN21<br><br>Source Excerpt: This is the NDI mission statement: “The National Democratic Institute is a nonprofit, nonpartisan, nongovernmental organization working to support and strengthen democratic institutions worldwide through citizen participation, openness and accountability in government.Since its founding in 1983, NDI has worked with local partners in 132 countries and territories, bringing together individuals and groups to share ideas, knowledge, experiences and expertise. Partners receive broad exposure to best practices in international democratic development that can be adapted to the needs of their own countries. NDI’s multinational approach reinforces the message that while there is no single democratic model, certain core principles are shared by all democracies.

The Institute’s work upholds the principles enshrined in the Universal Declaration of Human Rights. It also promotes the development of institutionalized channels of communications among citizens, political institutions and elected officials, and strengthens their ability to improve the quality of life for all citizens.” Available at https://www.ndi.org/mission (last accessed June 10, 2020). Archived URL

<br>AN16<br><br>Analytic Note: Note that “human rights” are referenced in both the United Nations preamble (“We the peoples of the United Nations determined…to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”) and Chapter 1 (“The purposes of the United Nations are:… 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”). See the Charter of the United Nations, available at https://www.un.org/en/sections/un-charter/un-charter-full-text/ (last accessed July 12, 2019). Archived URL

For further details about how democracy was included in the UDHR, see below.

<br>AN16<br><br>Analytic Note: Note that “human rights” are referenced in both the United Nations preamble (“We the peoples of the United Nations determined…to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”) and Chapter 1 (“The purposes of the United Nations are:… 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”). See the Charter of the United Nations, available at https://www.un.org/en/sections/un-charter/un-charter-full-text/ (last accessed July 12, 2019). Archived URL

For further details about how democracy was included in the UDHR, see below.

<br>AN10<br><br>Analytic Note: An affiliated organization in the United States, the Charter 77 Foundation (later, the Foundation for a Civil Society) initially also straddled the line between human rights and democracy promotion but ended up sitting more squarely in the democracy promotion camp. As founder Wendy Luers explained in a published interview, the organization sought to “creat[e] various programs to help the whole democratization process.” Eventually, the organization ended up seeking out funding from typical democracy promotion funding sources, including USAID in support of an initiative that it described as the “Democracy Network.” Sources:Interview 7, director, democracy promotion NGO, September 23, 2016.“Transition from Communism: A Conversation with Wendy Luers,” as told to Katie Mills Giorgio by Wendy Luers, printed with permission from the National Czech & Slovak Museum & Library, Slovo, Winter 2015-2016, available at https://www.vhlf.org/news/transition-from-communism-a-conversation-with-wendy-luers/ (last accessed July 16, 2019). Archived URL

<br>AN6<br><br>Analytic Note:Human Rights Watch says the following on its “About Us” webpage: “Human Rights Watch investigates and reports on abuses happening in all corners of the world. We are roughly 450 people of 70-plus nationalities who are country experts, lawyers, journalists, and others who work to protect the most at risk, from vulnerable minorities and civilians in wartime, to refugees and children in need. We direct our advocacy towards governments, armed groups and businesses, pushing them to change or enforce their laws, policies and practices. To ensure our independence, we refuse government funding and corporate ties. We partner with organizations large and small across the globe to protect embattled activists and to help hold abusers to account and bring justice to victims." Available at https://www.hrw.org/about-us (last accessed on February 3, 2020). Archived URL

<br>AN5<br><br>Analytic Note: Amnesty International (AI) describes its vision and mission in the following way: “AI’s vision is of a world in which every person enjoys all of the human rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments. In pursuit of this vision, AI’s mission is to undertake research and action focused on preventing and ending grave abuses of these rights.” See Amnesty International, “Statute.” Available at https://www.amnesty.org/en/about-us/how-were-run/amnesty-internationals-statute/ (last accessed on February 1, 2017). Archived URL

<br>AN33<br><br>Analytic Note: Consider two illustrative examples. First, the introduction to Human Rights Watch’s 2010 annual report contrasts democracies and non-democracies. It states, “There is a long, sordid history of human rights defenders being censored, imprisoned, ‘disappeared,’ or killed…The perpetrators of these attacks are not limited to classic authoritarian governments such as Cuba and China. Democracies such as Sri Lanka have increased the pressure on local and international human rights groups that documented violations, as have governments that hold elections but fall short of democratic rule, such as Russia.” Available at https://www.hrw.org/sites/default/files/world_report_download/wr2010_0.pdf (last accessed October 14, 2018). Archived URL

As a second example, consider the introduction to the Amnesty International Report 2017-18. It states, “The battle for human rights is never decisively one in any place or at any point in time. The frontiers shift continually, so there can never be room for complacency” (p. 12). Available at https://www.amnesty.org/download/Documents/POL1067002018ENGLISH.PDF (last accessed on October 14, 2018). Archived URL

<br>AN15<br><br>Source Excerpt: Vance’s definition explicitly encompassed both traditional civil and political rights (including those relating to democracy and elections) and economic and social rights. Vance stated: “Let me define what we mean by ‘human rights.’ First, there is the right to be free from governmental violation of the integrity of the person… Second, there is the right to the fulfillment of such vital needs as food, shelter, health care and education… Third, there is the right to enjoy civil and political liberties – freedom of thought; of religion; of assembly; freedom of speech; freedom of the press; freedom of movement both within and outside one’s country; freedom to take part in government. Our policy is to promote all these rights. They are all recognized in the Universal Declaration of Human Rights, a basic document which the United States helped fashion and which the United Nations approved in 1948.” See Vance (1977, 223-4).This was not the first attempt to link human rights to the U.S. foreign policy agenda. Section 116 (p. 42) of the 1961 Foreign Assistance Act said that “No assistance may be provided…to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights.”

Full text available at https://legcounsel.house.gov/Comps/Foreign%20Assistance%20Act%20Of%201961.pdf(last accessed February 3, 2020).

Source: Vance, Cyrus. 1977. "Human Rights and Foreign Policy." Georgia Journal of International and Comparative Law 7: 223-29. Archived URL

<br>AN12<br><br>Source Excerpt: Here is a description of one grant that related to Charter 77: Grant to “Charta Seventy-Seven Foundation, to expand its program of technical assistance to independent cultural and human rights groups in Czechoslovakia. The foundation is named after the movement established in Prague in 1977 which demanded that the Czechoslovak government respect the basic human rights guaranteed by the constitution and reaffirmed in the Helsinki accords. $20,000” (National Endowment for Democracy 1988, 21).Here is a description of one grant that related to Solidarity: Grant to “Free Trade Union Institute (FTUI), to administer funds specially appropriated by the U.S. Congress to provide assistance to the independent Polish trade union Solidarity for disseminating information, sustaining union activists and maintaining its administrative infrastructure. $1,000,000” (National Endowment for Democracy 1988, 23).

Source: See National Endowment for Democracy. 1988. 1988 Annual Report of the National Endowment for Democracy. Washington, DC: National Endowment for Democracy. Available at http://www.ned.org/wp-content/uploads/annualreports/1988-ned-annual-report.pdf (last accessed July 15, 2019). Archived URL

<br>AN3<br><br>Data Source: UPR Info database, available at https://upr-info-database.uwazi.io/ (last accessed December 21, 2022).

<br>AN33<br><br>Analytic Note: Consider two illustrative examples. First, the introduction to Human Rights Watch’s 2010 annual report contrasts democracies and non-democracies. It states, “There is a long, sordid history of human rights defenders being censored, imprisoned, ‘disappeared,’ or killed…The perpetrators of these attacks are not limited to classic authoritarian governments such as Cuba and China. Democracies such as Sri Lanka have increased the pressure on local and international human rights groups that documented violations, as have governments that hold elections but fall short of democratic rule, such as Russia.” Available at https://www.hrw.org/sites/default/files/world_report_download/wr2010_0.pdf (last accessed October 14, 2018). Archived URL

As a second example, consider the introduction to the Amnesty International Report 2017-18. It states, “The battle for human rights is never decisively one in any place or at any point in time. The frontiers shift continually, so there can never be room for complacency” (p. 12). Available at https://www.amnesty.org/download/Documents/POL1067002018ENGLISH.PDF (last accessed on October 14, 2018). Archived URL

<br>AN34<br><br>Source Excerpt: Article 21 states, “(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Available at http://www.un.org/en/universal-declaration-human-rights/ (last accessed August 16, 2018). Archived URL

There was some debate about whether Article 21 should also include a provision in favor of political parties, to which the Soviet delegation successfully objected. However, political parties were implicitly protected via Article 2, according to Morsink (1999, 61) in his definitive history: “all the articles in the Declaration are subject to the prohibition of discrimination on the grounds stated in Article 2. That means that in his or her enjoyment of the rights of Article 21 no one may be discriminated against on the basis of ‘political or other opinion.’ This connection between Article 21 and Article 2 was not lost on the drafters.”

<br>AN26<br><br>Source Excerpt: This general comment concerned “[t]he right to participate in public affairs, voting rights, and the right of equal access to public service.” See UN Committee on Human Rights, General Comment 25, July 12, 1996, available from the Organization for Security and Co-operation in Europe at https://www.osce.org/odihr/elections/19154 (last accessed September 13, 2018). Archived URL

<br>AN25<br><br>Source Excerpt: The full text reads: “Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. In the context of the above, the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached. The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.” See “Vienna Declaration and Programme of Action,” https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx (last accessed January 24, 2020). Archived URL

<br>AN21<br><br>Source Excerpt: This is the NDI mission statement: “The National Democratic Institute is a nonprofit, nonpartisan, nongovernmental organization working to support and strengthen democratic institutions worldwide through citizen participation, openness and accountability in government.Since its founding in 1983, NDI has worked with local partners in 132 countries and territories, bringing together individuals and groups to share ideas, knowledge, experiences and expertise. Partners receive broad exposure to best practices in international democratic development that can be adapted to the needs of their own countries. NDI’s multinational approach reinforces the message that while there is no single democratic model, certain core principles are shared by all democracies.

The Institute’s work upholds the principles enshrined in the Universal Declaration of Human Rights. It also promotes the development of institutionalized channels of communications among citizens, political institutions and elected officials, and strengthens their ability to improve the quality of life for all citizens.” Available at https://www.ndi.org/mission (last accessed June 10, 2020). Archived URL

<br>AN10<br><br>Analytic Note: An affiliated organization in the United States, the Charter 77 Foundation (later, the Foundation for a Civil Society) initially also straddled the line between human rights and democracy promotion but ended up sitting more squarely in the democracy promotion camp. As founder Wendy Luers explained in a published interview, the organization sought to “creat[e] various programs to help the whole democratization process.” Eventually, the organization ended up seeking out funding from typical democracy promotion funding sources, including USAID in support of an initiative that it described as the “Democracy Network.” Sources:Interview 7, director, democracy promotion NGO, September 23, 2016.“Transition from Communism: A Conversation with Wendy Luers,” as told to Katie Mills Giorgio by Wendy Luers, printed with permission from the National Czech & Slovak Museum & Library, Slovo, Winter 2015-2016, available at https://www.vhlf.org/news/transition-from-communism-a-conversation-with-wendy-luers/ (last accessed July 16, 2019). Archived URL

<br>AN6<br><br>Analytic Note:Human Rights Watch says the following on its “About Us” webpage: “Human Rights Watch investigates and reports on abuses happening in all corners of the world. We are roughly 450 people of 70-plus nationalities who are country experts, lawyers, journalists, and others who work to protect the most at risk, from vulnerable minorities and civilians in wartime, to refugees and children in need. We direct our advocacy towards governments, armed groups and businesses, pushing them to change or enforce their laws, policies and practices. To ensure our independence, we refuse government funding and corporate ties. We partner with organizations large and small across the globe to protect embattled activists and to help hold abusers to account and bring justice to victims." Available at https://www.hrw.org/about-us (last accessed on February 3, 2020). Archived URL

<br>AN5<br><br>Analytic Note: Amnesty International (AI) describes its vision and mission in the following way: “AI’s vision is of a world in which every person enjoys all of the human rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments. In pursuit of this vision, AI’s mission is to undertake research and action focused on preventing and ending grave abuses of these rights.” See Amnesty International, “Statute.” Available at https://www.amnesty.org/en/about-us/how-were-run/amnesty-internationals-statute/ (last accessed on February 1, 2017). Archived URL

<br>AN12<br><br>Source Excerpt: Here is a description of one grant that related to Charter 77: Grant to “Charta Seventy-Seven Foundation, to expand its program of technical assistance to independent cultural and human rights groups in Czechoslovakia. The foundation is named after the movement established in Prague in 1977 which demanded that the Czechoslovak government respect the basic human rights guaranteed by the constitution and reaffirmed in the Helsinki accords. $20,000” (National Endowment for Democracy 1988, 21).Here is a description of one grant that related to Solidarity: Grant to “Free Trade Union Institute (FTUI), to administer funds specially appropriated by the U.S. Congress to provide assistance to the independent Polish trade union Solidarity for disseminating information, sustaining union activists and maintaining its administrative infrastructure. $1,000,000” (National Endowment for Democracy 1988, 23).

Source: See National Endowment for Democracy. 1988. 1988 Annual Report of the National Endowment for Democracy. Washington, DC: National Endowment for Democracy. Available at http://www.ned.org/wp-content/uploads/annualreports/1988-ned-annual-report.pdf (last accessed July 15, 2019). Archived URL

<br>AN15<br><br>Source Excerpt: Vance’s definition explicitly encompassed both traditional civil and political rights (including those relating to democracy and elections) and economic and social rights. Vance stated: “Let me define what we mean by ‘human rights.’ First, there is the right to be free from governmental violation of the integrity of the person… Second, there is the right to the fulfillment of such vital needs as food, shelter, health care and education… Third, there is the right to enjoy civil and political liberties – freedom of thought; of religion; of assembly; freedom of speech; freedom of the press; freedom of movement both within and outside one’s country; freedom to take part in government. Our policy is to promote all these rights. They are all recognized in the Universal Declaration of Human Rights, a basic document which the United States helped fashion and which the United Nations approved in 1948.” See Vance (1977, 223-4).This was not the first attempt to link human rights to the U.S. foreign policy agenda. Section 116 (p. 42) of the 1961 Foreign Assistance Act said that “No assistance may be provided…to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights.”

Full text available at https://legcounsel.house.gov/Comps/Foreign%20Assistance%20Act%20Of%201961.pdf(last accessed February 3, 2020).

Source: Vance, Cyrus. 1977. "Human Rights and Foreign Policy." Georgia Journal of International and Comparative Law 7: 223-29. Archived URL

<br>AN3<br><br>Data Source: UPR Info database, available at https://upr-info-database.uwazi.io/ (last accessed December 21, 2022).

<br>AN37<br><br>Analytic Note: Data extract from the Organization for Economic Cooperation and Development’s Query Wizard for International Development. 2002-2018 aid by all donors (DAC, non-DAC, and multilateral) to various governmental and civil society subsectors are included. The broader category includes subsectors we do not display here, all related to good governance and transparency (for example, public sector policy, anti-corruption).

Data Source: Bush-Stroup_OECD-DAC-data-extract_2002-2018.tab

<br>This is an Annotation for Transparent Inquiry project, published by the Qualitative Data Repository.

The Data Overview discusses project context, data generation and analysis, and logic of annotation.

Please cite as:

Bush, Sarah; Stroup, Sarah S.. 2023. "Data for: Stay Off My Field: Policing Boundaries in Human Rights and Democracy Promotion". Qualitative Data Repository. https://doi.org/10.5064/F6G3T1PF. QDR Main Collection.

Learn more about ATI here.

<br>AN38<br><br>Source Excerpt: “Given this history, we view with great misgiving a body established by the U.S. government aimed expressly at circumscribing rights through an artificial sorting of those that are “unalienable” and those to be now deemed “ad hoc.” These terms simply have no place in human rights discourse. It is a fundamental tenet of human rights that all rights are universal and equal. Governments cannot take or discard them as they choose. Like other governments, the U.S. government is bound to certain obligations codified in widely ratified international treaties. At best, an exercise seemingly geared toward objecting to this well-established fact presents a waste of time and energy better spent on actual human rights issues. More ominously, the reference to ‘ad hoc’ rights resembles language used by autocratic and dictatorial governments, which frequently speak in terms of a hierarchy of rights.”

Source: Letter from Human Rights First to Secretary Pompeo, dated July 23, 2019. Bush-Stroup_Unalienable-Rights-Commission-NGO-Ltr.pdf

<br>AN31<br><br>Analytic Note: There is an entire folder within the Freedom House archives on Amnesty International. For this letter, it is important to note that there is a handwritten comment in margin that says: “file Amnesty, good reply to queries re: FH/Amnesty ‘comparison’”.

<br>AN32<br><br>Analytic Note: Minimal definitions of democracy conceptualize it in electoral terms (Coppedge et al. 2011, 253). When defined thusly, the concept of human rights encompasses but is broader than democracy. In this case, “Democracy and human rights share a commitment to the ideal of equal political dignity for all” (Donnelly 1999, 619).

Sources:

Coppedge, Michael, John Gerring, et al. 2011. “Conceptualizing and Measuring Democracy: A New Approach.” Perspectives on Politics 9 (2): 247-267.

Donnelly, Jack. 1999. "Human Rights, Democracy, and Development." Human Rights Quarterly 21: 608-32.

<br>AN36<br><br>Source Excerpt: “We wanted to promote human rights on all sides, even among people that are not democrats. Some of what has come out of that has been very surprising and not very pleasant for people like myself, because we worked with people who eventually ended up being leaders in their countries. For example, Orbán in Hungary was someone that we worked with, and he has taken Hungary into a very unpleasant place and it is very upsetting. When I look back, when he was a young dissident, he was very inspiring to many people. Did he know at the time where he would end up going? Or did he change his mind once he got in power? It’s hard to say. There have been plenty of disappointments like that, and these are real disappointments because I am a democrat.”

Source:Interview 2, former executive, HRW, March 20, 2019.

<br>AN35<br><br>Source Excerpt:

Interviewer: “In discussing this project with some of my colleagues, they often point out that perhaps it serves the human rights organizations to gain access to the countries where they want to work. Does that resonate with your experience?”

Subject: “Wow! I’m blown away by the analysis of your colleagues. It seems to not understand the challenge that human rights pose to governments that have a monopoly on power and intend on using it for corrupt ends. To ask those governments to relinquish that power is immensely threatening. What your colleagues are saying seems more true of people that are engaged in business. So, if you want to engage with a government in a way that is apolitical, that might be true that you’d do what you can to gain access. But not human rights organizations. They certainly do not make that cold calculation of setting aside something related to human rights to gain access or the watering down that happens by other organizations…I’m surprised by this analysis because it seems like the democracy promotion organizations are actually the ones that are doing this. People who are engaged with democracy promotion come in already with huge amounts of access compared with human rights organizations, and they have the safety and legitimacy of their government affiliation in very dangerous places. And yet they are the organizations that tend to water things down in order to collaborate with governments.”

Source: Interview 3, HR consultant, most recently for Physicians for Human Rights, February 25, 2019.

<br>AN19<br><br>Analytic Note:vExcerpts from this memo were leaked to the New York Times under the title “Reinvigoration of Human Rights Policy.” One way of interpreting the decision to leak this memo was that Reagan administration officials perceived it as necessary to respond to growing public concern about (and criticism of Reagan over) human rights. See Jacoby (1986, 1070).

Source: Jacoby, Tamar. 1986. "The Reagan Turnaround on Human Rights." Foreign Affairs 64: 1066-86.

<br>AN4<br><br>Analytic Note: We selected a random sample of 65 human rights NGOs listed in the 2017 Yearbook for this analysis. We searched for those organizations’ websites and then selected their mission statement page or “about us” page. If an organizational website was not available but other information on the organization’s mission was available via a Google search, we relied on that as a source of information.

<br>AN30<br><br>Source Excerpt: See, for example, Maechling (1983, 129), a State Department official during the Kennedy and Johnson administrations, who wrote: “the administration has resorted to a variety of defensive tactics to justify requests to Congress for military and security assistance to violators. Its standard practice has been to scratch about for signs of progress toward democracy, especially through the panacea of free elections. Unfortunately, in the Third World and particularly Latin America, elections continue to be so riddled with fraud that, with a few honorable exceptions, a formal commitment to elections proves little.”

Source: Maechling, Jr., Charles.1983. "Human Rights Dehumanized." Foreign Policy 52:118-35.

<br>AN7<br><br>Source Excerpt: The subject was asked “what is the content of democracy promotion that does not fit into human rights?” In answering the question, the subject used the terms “governance” and “democracy promotion” interchangeably. Their full response was:“If you look where human rights and democracy promotion come together, like, for example, judicial reform would be an easy case. Even where you are talking about that, you have two very different approaches… one of the guys that was kind of one of my mentors on human rights was always says that “a conversation between a human rights advocate and a governance person was a conversation between a priest and a king.” The human rights advocate was the priest – always identifying what was wrong and what was right. The king was the person who was about delivering, governing, and so forth. You always need both. You don’t want the priest to be the king and you don’t want the king to be the priest.”

Source: Interview 9, executive, Ford Foundation, May 17, 2018.

<br>AN28<br><br>Analytic Note: This point follows Bush’s (2015, Ch. 6) characterization of early democracy promotion leaders’ backgrounds. For example, founding NED president Carl Gershman had previously been the Executive Director of Social Democrats, USA, and the U.S. Representative to the UN’s Third Committee on human rights during the Reagan administration. See also Guilhot (2005, 88-90).

Sources:

Bush, Sarah Sunn. 2015. The Taming of Democracy Assistance: Why Democracy Promotion Does Not Confront Dictators. Cambridge: Cambridge University Press.

Guilhot, Nicolas. 2005. The Democracy Makers: Human Rights and the Politics of Global Order. New York: Columbia University Press.

<br>AN1<br><br>Analytic Note: Among the 20 interviews are 5 interviews for earlier projects that we conducted from 2006 to 2012. The rest of the interviews were conducted specifically for this project between 2018 and 2021.

<br>AN22<br><br>Source Excerpt: The full quote from the last three paragraphs, page 2 of the memo:

“What has all this got to do with AIUSA? Isn’t this just a quarrel about semantics? Why should we argue with the administration about the words they use? And if we’re not the immediate object of an attack, why do we have to come to the defense of other human rights organizations?

“All this” constitutes an attack on the entire post-World War II consensus about the nature and importance of human rights. It is an attack on the structures that have been developed to protect the human rights of each individual in every country of the world. If that consensus breaks down and independent structures to protect human rights seriously weakened, we will all be far more vulnerable to abuses by governments.

“All this” also constitutes an attack on the very basis for AI’s existence and its means of survival. AI depends on the existence of an international consensus and laws on human rights in order to affect the behavior of governments. It has long recognized the need for strong mechanisms, organization and institutions, which, working together, can call governments to account for their behavior.”

<br>AN29<br><br>Analytic Note: As evidence of its centrality, we note that Freedom House played a key role in initiatives such as the founding of the Community of Democracies (an inter-governmental organization) and the Transatlantic Democracy Network (a network of European and North American democracy promoters). See Sussman (2009, 5). Hyperlink analysis further demonstrates the organization’s importance within the overall democracy promotion network (Bush 2015, 137).

Sources:

Bush, Sarah Sunn. 2015. The Taming of Democracy Assistance: Why Democracy Promotion Does Not Confront Dictators. Cambridge: Cambridge University Press.

Sussman, Leonard R. 2009. "Freedom House." In Encyclopedia of Human Rights, ed. David P. Forsythe. Vol. 1. New York: Oxford University Press.

<br>AN11<br><br>Analytic Note:According to Snyder (2011, 57) in a history of the human rights movement, the Moscow Helsinki Group (or Helsinki Watch Group) was “by far the most important NGO” out of the human rights organizations that sprung up in Central and Eastern Europe after the signing of the Helsinki Final Act. Snyder (2011, 50-4, 96) also emphasizes the role of samizdat, and much of her discussion around human rights abuses in Central and Eastern Europe is framed around the treatment of “dissent” and “dissidents,” which can be interpreted as having a strong connection with democracy.

Source: Snyder, Sarah B. 2011. Human Rights Activism and the End of the Cold War: A Transnational History of the Helsinki Network. Cambridge: Cambridge University Press.

<br>AN14<br><br>Source Excerpt: “This is definitely also a European, or at least German, mindset. Human rights organizations mostly are protest organizations, whereas democracy promotion organizations work with the government.”

Source: Interview 6, staffer, Bertelsmann Stiftungen, May 8, 2018.

<br>AN23<br><br>Analytic Note: Data on these subsectors, which are part of a larger sector of internationally oriented non-profits, are available from the National Center for Charitable Statistics. Because the NCCS platform has gone through changes that make the data more difficult to find, we present the original data in an Excel file.

Data Source: Bush-Stroup_HR_DP_1995-2015.tab

<br>AN9<br><br>Source Excerpt: The full quote from an individual who works in the human rights field: “I think one thing that is important to say at the outset is that democracy is very rarely mentioned out loud in the work of human rights organizations. So, it really doesn’t explicitly come up. It’s not discussed. The relationship is not debated. And that’s because human rights and democracy overlap but they’re not the same.”

Source: Interview 3, HR consultant, most recently for Physicians for Human Rights, February 25, 2019.

<br>AN13<br><br>Source Excerpt:Even this interviewee acknowledged that there is a commonly-accepted division between the fields, stating: "There has been a narrative going back twenty years, maybe more, that the human rights community and the democracy communities don't work together. The narrative is that the human rights community is dismissive of democracy promotion." However, he noted that this was a narrative that he did not subscribe to: "people attribute things to malice that are really just explained by overwork."

Source: Interview 1, executive, OSF, March 22, 2019.

<br>AN17<br><br>Analytic Note: Many studies of the human rights sector describe this human rights lobby in Washington and beyond, including Donnelly (1992, 272). In Neier’s analysis, key players included “Helsinki Watch (which became Human Rights Watch), the Lawyers Committee for International Human Rights (which became Human Rights First), the Committee to Protect Journalists, the International Human Rights Law Group (which became Global Rights), [and] Physicians for Human Rights”, which were all formed in the 1970s, as well as Amnesty and the International League for Human Rights (Neier 2012, 8). These actors worked together in various networks, including the Human Rights Working Group of the Coalition for a New Foreign and Military Policy, the Washington Office on Latin America, and the Center for International Policy (Vogelgesang 1978, 725).

Sources: Donnelly, Jack. 1992. "Human Rights in the New World Order." World Policy Journal 9: 249-77.Vogelgesang, Sandra. 1978. "What Price Principle? - U.S. Policy on Human Rights." Foreign Affairs 56: 819-41.

<br>AN8<br><br>Analytic Note: There were 350 HR INGOs and 119 DP INGOs within this group.

<br>AN18<br><br>Data Source:For graphs of trends of references to “democracy promotion” and “human rights” see NGram of DP.

<br>AN24<br><br>Analytic Note: These foundations included the Friedrich Ebert Foundation (associated with Social Democrats and established in 1947), the Friedrich Naumann Foundation (associated with Free Democrats and established in 1958), the Konrad Adenauer Foundation (associated with the Christian Democrats and established in 1964), and the Hanns Seidel Foundation (associated with the Bavarian Christian Social Union and established in 1967). The foundations came to include some international activities typically classified as “democracy promotion,” which were supported by the German foreign ministry as part of “socio-political education” and later served as models for American democracy-promotion INGOs such as the National Democratic Institute and International Republican Institute (Pinto-Duschinsky 1991, 33).

Source: Pinto-Duschinsky, Michael. 1991. "Foreign Political Aid: The German Political Foundations and Their U.S. Counterparts." International Affairs 67: 33-63.

<br>AN20<br><br>Analytic Note: Reflecting on this shift in a 1990 interview, Abrams said, “Doctrinally, we argued that we should move from case work, from trying to get Mr. A out of jail or reopening newspaper B to fostering systemic change. Only systemic change would guarantee that the one or two gains you had made would remain and that all political prisoners would be freed” (Abrams 1990, 107-108).

Source: Abrams, Elliott. 1990. “Reagan’s Leadership: Mystery Man or Ideological Guide?” In Foreign Policy in the Reagan Presidency: Nine Intimate Perspectives, ed. Kenneth W. Thompson. Volume III, the Miller Center Reagan Oral History Series. Lanham, Maryland: University Press of America, Inc.

<br>AN2<br><br>Analytic Note: For the UNHRC, we examined the top twenty issues issued raised as of October 1, 2019.

<br>AN27<br><br>Analytic Note: The legal orientation is even stronger outside Amnesty and Human Rights Watch. As one staffer at Interights [UK] explained the comparison between his group and Human Rights Watch and Human Rights First, “The major difference is that those organizations are advocacy organizations with the aim of promoting human rights standards. We use litigation ourselves or with our partners to promote and protect human rights standards. These are two different strategies, and one probably can’t exist without the other, but the two can be taken separately.”

Source: Interview 21, staffer, InterRights, October 24, 2006.

<br>This is an Annotation for Transparent Inquiry project, published by the Qualitative Data Repository.

The Data Overview discusses project context, data generation and analysis, and logic of annotation.

Please cite as:

Bush, Sarah; Stroup, Sarah S.. 2023. "Data for: Stay Off My Field: Policing Boundaries in Human Rights and Democracy Promotion". Qualitative Data Repository. https://doi.org/10.5064/F6G3T1PF. QDR Main Collection.

Learn more about ATI here.

<br>AN35<br><br>Source Excerpt:

Interviewer: “In discussing this project with some of my colleagues, they often point out that perhaps it serves the human rights organizations to gain access to the countries where they want to work. Does that resonate with your experience?”

Subject: “Wow! I’m blown away by the analysis of your colleagues. It seems to not understand the challenge that human rights pose to governments that have a monopoly on power and intend on using it for corrupt ends. To ask those governments to relinquish that power is immensely threatening. What your colleagues are saying seems more true of people that are engaged in business. So, if you want to engage with a government in a way that is apolitical, that might be true that you’d do what you can to gain access. But not human rights organizations. They certainly do not make that cold calculation of setting aside something related to human rights to gain access or the watering down that happens by other organizations…I’m surprised by this analysis because it seems like the democracy promotion organizations are actually the ones that are doing this. People who are engaged with democracy promotion come in already with huge amounts of access compared with human rights organizations, and they have the safety and legitimacy of their government affiliation in very dangerous places. And yet they are the organizations that tend to water things down in order to collaborate with governments.”

Source: Interview 3, HR consultant, most recently for Physicians for Human Rights, February 25, 2019.

<br>AN36<br><br>Source Excerpt: “We wanted to promote human rights on all sides, even among people that are not democrats. Some of what has come out of that has been very surprising and not very pleasant for people like myself, because we worked with people who eventually ended up being leaders in their countries. For example, Orbán in Hungary was someone that we worked with, and he has taken Hungary into a very unpleasant place and it is very upsetting. When I look back, when he was a young dissident, he was very inspiring to many people. Did he know at the time where he would end up going? Or did he change his mind once he got in power? It’s hard to say. There have been plenty of disappointments like that, and these are real disappointments because I am a democrat.”

Source:Interview 2, former executive, HRW, March 20, 2019.

<br>AN38<br><br>Source Excerpt: “Given this history, we view with great misgiving a body established by the U.S. government aimed expressly at circumscribing rights through an artificial sorting of those that are “unalienable” and those to be now deemed “ad hoc.” These terms simply have no place in human rights discourse. It is a fundamental tenet of human rights that all rights are universal and equal. Governments cannot take or discard them as they choose. Like other governments, the U.S. government is bound to certain obligations codified in widely ratified international treaties. At best, an exercise seemingly geared toward objecting to this well-established fact presents a waste of time and energy better spent on actual human rights issues. More ominously, the reference to ‘ad hoc’ rights resembles language used by autocratic and dictatorial governments, which frequently speak in terms of a hierarchy of rights.”

Source: Letter from Human Rights First to Secretary Pompeo, dated July 23, 2019. Bush-Stroup_Unalienable-Rights-Commission-NGO-Ltr.pdf

<br>AN37<br><br>Analytic Note: Data extract from the Organization for Economic Cooperation and Development’s Query Wizard for International Development. 2002-2018 aid by all donors (DAC, non-DAC, and multilateral) to various governmental and civil society subsectors are included. The broader category includes subsectors we do not display here, all related to good governance and transparency (for example, public sector policy, anti-corruption).

Data Source: Bush-Stroup_OECD-DAC-data-extract_2002-2018.tab

<br>AN32<br><br>Analytic Note: Minimal definitions of democracy conceptualize it in electoral terms (Coppedge et al. 2011, 253). When defined thusly, the concept of human rights encompasses but is broader than democracy. In this case, “Democracy and human rights share a commitment to the ideal of equal political dignity for all” (Donnelly 1999, 619).

Sources:

Coppedge, Michael, John Gerring, et al. 2011. “Conceptualizing and Measuring Democracy: A New Approach.” Perspectives on Politics 9 (2): 247-267.

Donnelly, Jack. 1999. "Human Rights, Democracy, and Development." Human Rights Quarterly 21: 608-32.

<br>AN31<br><br>Analytic Note: There is an entire folder within the Freedom House archives on Amnesty International. For this letter, it is important to note that there is a handwritten comment in margin that says: “file Amnesty, good reply to queries re: FH/Amnesty ‘comparison’”.

<br>AN29<br><br>Analytic Note: As evidence of its centrality, we note that Freedom House played a key role in initiatives such as the founding of the Community of Democracies (an inter-governmental organization) and the Transatlantic Democracy Network (a network of European and North American democracy promoters). See Sussman (2009, 5). Hyperlink analysis further demonstrates the organization’s importance within the overall democracy promotion network (Bush 2015, 137).

Sources:

Bush, Sarah Sunn. 2015. The Taming of Democracy Assistance: Why Democracy Promotion Does Not Confront Dictators. Cambridge: Cambridge University Press.

Sussman, Leonard R. 2009. "Freedom House." In Encyclopedia of Human Rights, ed. David P. Forsythe. Vol. 1. New York: Oxford University Press.

<br>AN7<br><br>Source Excerpt: The subject was asked “what is the content of democracy promotion that does not fit into human rights?” In answering the question, the subject used the terms “governance” and “democracy promotion” interchangeably. Their full response was:“If you look where human rights and democracy promotion come together, like, for example, judicial reform would be an easy case. Even where you are talking about that, you have two very different approaches… one of the guys that was kind of one of my mentors on human rights was always says that “a conversation between a human rights advocate and a governance person was a conversation between a priest and a king.” The human rights advocate was the priest – always identifying what was wrong and what was right. The king was the person who was about delivering, governing, and so forth. You always need both. You don’t want the priest to be the king and you don’t want the king to be the priest.”

Source: Interview 9, executive, Ford Foundation, May 17, 2018.

<br>AN13<br><br>Source Excerpt:Even this interviewee acknowledged that there is a commonly-accepted division between the fields, stating: "There has been a narrative going back twenty years, maybe more, that the human rights community and the democracy communities don't work together. The narrative is that the human rights community is dismissive of democracy promotion." However, he noted that this was a narrative that he did not subscribe to: "people attribute things to malice that are really just explained by overwork."

Source: Interview 1, executive, OSF, March 22, 2019.

<br>AN9<br><br>Source Excerpt: The full quote from an individual who works in the human rights field: “I think one thing that is important to say at the outset is that democracy is very rarely mentioned out loud in the work of human rights organizations. So, it really doesn’t explicitly come up. It’s not discussed. The relationship is not debated. And that’s because human rights and democracy overlap but they’re not the same.”

Source: Interview 3, HR consultant, most recently for Physicians for Human Rights, February 25, 2019.

<br>AN17<br><br>Analytic Note: Many studies of the human rights sector describe this human rights lobby in Washington and beyond, including Donnelly (1992, 272). In Neier’s analysis, key players included “Helsinki Watch (which became Human Rights Watch), the Lawyers Committee for International Human Rights (which became Human Rights First), the Committee to Protect Journalists, the International Human Rights Law Group (which became Global Rights), [and] Physicians for Human Rights”, which were all formed in the 1970s, as well as Amnesty and the International League for Human Rights (Neier 2012, 8). These actors worked together in various networks, including the Human Rights Working Group of the Coalition for a New Foreign and Military Policy, the Washington Office on Latin America, and the Center for International Policy (Vogelgesang 1978, 725).

Sources: Donnelly, Jack. 1992. "Human Rights in the New World Order." World Policy Journal 9: 249-77.Vogelgesang, Sandra. 1978. "What Price Principle? - U.S. Policy on Human Rights." Foreign Affairs 56: 819-41.

<br>AN19<br><br>Analytic Note:vExcerpts from this memo were leaked to the New York Times under the title “Reinvigoration of Human Rights Policy.” One way of interpreting the decision to leak this memo was that Reagan administration officials perceived it as necessary to respond to growing public concern about (and criticism of Reagan over) human rights. See Jacoby (1986, 1070).

Source: Jacoby, Tamar. 1986. "The Reagan Turnaround on Human Rights." Foreign Affairs 64: 1066-86.

<br>AN30<br><br>Source Excerpt: See, for example, Maechling (1983, 129), a State Department official during the Kennedy and Johnson administrations, who wrote: “the administration has resorted to a variety of defensive tactics to justify requests to Congress for military and security assistance to violators. Its standard practice has been to scratch about for signs of progress toward democracy, especially through the panacea of free elections. Unfortunately, in the Third World and particularly Latin America, elections continue to be so riddled with fraud that, with a few honorable exceptions, a formal commitment to elections proves little.”

Source: Maechling, Jr., Charles.1983. "Human Rights Dehumanized." Foreign Policy 52:118-35.

<br>AN22<br><br>Source Excerpt: The full quote from the last three paragraphs, page 2 of the memo:

“What has all this got to do with AIUSA? Isn’t this just a quarrel about semantics? Why should we argue with the administration about the words they use? And if we’re not the immediate object of an attack, why do we have to come to the defense of other human rights organizations?

“All this” constitutes an attack on the entire post-World War II consensus about the nature and importance of human rights. It is an attack on the structures that have been developed to protect the human rights of each individual in every country of the world. If that consensus breaks down and independent structures to protect human rights seriously weakened, we will all be far more vulnerable to abuses by governments.

“All this” also constitutes an attack on the very basis for AI’s existence and its means of survival. AI depends on the existence of an international consensus and laws on human rights in order to affect the behavior of governments. It has long recognized the need for strong mechanisms, organization and institutions, which, working together, can call governments to account for their behavior.”

<br>AN8<br><br>Analytic Note: There were 350 HR INGOs and 119 DP INGOs within this group.

<br>AN14<br><br>Source Excerpt: “This is definitely also a European, or at least German, mindset. Human rights organizations mostly are protest organizations, whereas democracy promotion organizations work with the government.”

Source: Interview 6, staffer, Bertelsmann Stiftungen, May 8, 2018.

<br>AN28<br><br>Analytic Note: This point follows Bush’s (2015, Ch. 6) characterization of early democracy promotion leaders’ backgrounds. For example, founding NED president Carl Gershman had previously been the Executive Director of Social Democrats, USA, and the U.S. Representative to the UN’s Third Committee on human rights during the Reagan administration. See also Guilhot (2005, 88-90).

Sources:

Bush, Sarah Sunn. 2015. The Taming of Democracy Assistance: Why Democracy Promotion Does Not Confront Dictators. Cambridge: Cambridge University Press.

Guilhot, Nicolas. 2005. The Democracy Makers: Human Rights and the Politics of Global Order. New York: Columbia University Press.

<br>AN18<br><br>Data Source:For graphs of trends of references to “democracy promotion” and “human rights” see NGram of DP.

<br>AN11<br><br>Analytic Note:According to Snyder (2011, 57) in a history of the human rights movement, the Moscow Helsinki Group (or Helsinki Watch Group) was “by far the most important NGO” out of the human rights organizations that sprung up in Central and Eastern Europe after the signing of the Helsinki Final Act. Snyder (2011, 50-4, 96) also emphasizes the role of samizdat, and much of her discussion around human rights abuses in Central and Eastern Europe is framed around the treatment of “dissent” and “dissidents,” which can be interpreted as having a strong connection with democracy.

Source: Snyder, Sarah B. 2011. Human Rights Activism and the End of the Cold War: A Transnational History of the Helsinki Network. Cambridge: Cambridge University Press.

<br>AN23<br><br>Analytic Note: Data on these subsectors, which are part of a larger sector of internationally oriented non-profits, are available from the National Center for Charitable Statistics. Because the NCCS platform has gone through changes that make the data more difficult to find, we present the original data in an Excel file.

Data Source: Bush-Stroup_HR_DP_1995-2015.tab

<br>AN2<br><br>Analytic Note: For the UNHRC, we examined the top twenty issues issued raised as of October 1, 2019.

<br>AN27<br><br>Analytic Note: The legal orientation is even stronger outside Amnesty and Human Rights Watch. As one staffer at Interights [UK] explained the comparison between his group and Human Rights Watch and Human Rights First, “The major difference is that those organizations are advocacy organizations with the aim of promoting human rights standards. We use litigation ourselves or with our partners to promote and protect human rights standards. These are two different strategies, and one probably can’t exist without the other, but the two can be taken separately.”

Source: Interview 21, staffer, InterRights, October 24, 2006.

<br>AN1<br><br>Analytic Note: Among the 20 interviews are 5 interviews for earlier projects that we conducted from 2006 to 2012. The rest of the interviews were conducted specifically for this project between 2018 and 2021.

<br>AN24<br><br>Analytic Note: These foundations included the Friedrich Ebert Foundation (associated with Social Democrats and established in 1947), the Friedrich Naumann Foundation (associated with Free Democrats and established in 1958), the Konrad Adenauer Foundation (associated with the Christian Democrats and established in 1964), and the Hanns Seidel Foundation (associated with the Bavarian Christian Social Union and established in 1967). The foundations came to include some international activities typically classified as “democracy promotion,” which were supported by the German foreign ministry as part of “socio-political education” and later served as models for American democracy-promotion INGOs such as the National Democratic Institute and International Republican Institute (Pinto-Duschinsky 1991, 33).

Source: Pinto-Duschinsky, Michael. 1991. "Foreign Political Aid: The German Political Foundations and Their U.S. Counterparts." International Affairs 67: 33-63.

<br>AN4<br><br>Analytic Note: We selected a random sample of 65 human rights NGOs listed in the 2017 Yearbook for this analysis. We searched for those organizations’ websites and then selected their mission statement page or “about us” page. If an organizational website was not available but other information on the organization’s mission was available via a Google search, we relied on that as a source of information.

<br>AN20<br><br>Analytic Note: Reflecting on this shift in a 1990 interview, Abrams said, “Doctrinally, we argued that we should move from case work, from trying to get Mr. A out of jail or reopening newspaper B to fostering systemic change. Only systemic change would guarantee that the one or two gains you had made would remain and that all political prisoners would be freed” (Abrams 1990, 107-108).

Source: Abrams, Elliott. 1990. “Reagan’s Leadership: Mystery Man or Ideological Guide?” In Foreign Policy in the Reagan Presidency: Nine Intimate Perspectives, ed. Kenneth W. Thompson. Volume III, the Miller Center Reagan Oral History Series. Lanham, Maryland: University Press of America, Inc.

<br> This is an Annotation for Transparent Inquiry project, published by the Qualitative Data Repository. Please cite as:

Bea, Megan. 2022. "Data for: Relational Foundations of an Unequal Consumer Credit Market: Symbiotic Ties between Banks and Payday Lenders". Qualitative Data Repository. https://doi.org/10.5064/F6OTUZMQ. QDR Main Collection.

Additional documentation can be found on QDR.

Learn more about ATI here.

<br> Analytic Note: The use of bank credit for managing day-to-day operations was referenced within company documents across all years reviewed. I use supporting evidence from three companies in the main text, but the remaining three companies, ACE Cash Express, Cash America and Dollar Financial, also noted the importance of this funding for managing short term liquidity needs, as seen in the below excerpts:

Source Excerpt: Ace Cash Express 2006 10-K, p. 57“

Effects of Financing Arrangements We believe that our long-term credit facilities under the existing credit agreement and our anticipated cash flows from operations will provide adequate working capital for our operations. Although the credit agreement places restrictions on capital expenditures and acquisitions, we believe that these restrictions do not prohibit us from pursuing our growth strategy as currently planned."

Data Source: https://www.sec.gov/Archives/edgar/data/0000849116/000095013406016959/d39225e10vk.htm

Source Excerpt: Cash America, 2010 10K, page 58:

“…[N]ear-term liquidity is managed to ensure that adequate resources are available to fund the Company’s seasonal working capital growth which is driven by demand for short-term consumer loans….Near-term liquidity is provided through operating cash flows and the utilization of borrowings under the Company’s long-term committed unsecured bank line of credit.”

Data Source:https://www.sec.gov/Archives/edgar/data/807884/000119312511047487/d10k.htm

Source Excerpt Dollar Financial Group, 2008 10K, p. 48:

“Our principal sources of cash are from operations, borrowings under our credit facilities and the issuance of our common stock and senior convertible notes. We anticipate that our primary uses of cash will be to provide working capital, finance capital expenditures, meet debt service requirements, fund Company originated short-term consumer loans, finance store expansion, finance acquisitions, and finance the expansion of our products and services.”

Data Source: https://www.sec.gov/Archives/edgar/data/1271625/000089322008002500/w66715e10vk.htm

<br> Source Excerpt: </br>QC Holding 2014 10-K

Our financial performance and negative perception of the regulatory landscape by lenders has resulted in less favorable borrowing terms and may adversely affect our ability to extend our revolving credit facility or to obtain additional loans to finance our business operations or acquisition opportunities. We have generally experienced declining financial results in recent years, which have resulted in our failure to meet various financial covenants in our prior credit agreement. While our bank lending group waived or amended those financial covenants in the past, each waiver or amendment resulted in less availability under our revolving credit agreement, stricter repayment requirements on our term loans and generally higher loan costs and tighter loan covenants (including restrictions on payment of dividends). We also believe that banks and other commercial lenders are affected by negative perceptions regarding the regulatory landscape for the short-term consumer loan industry, including uncertainty regarding the timing, and ultimate business impact, of the pending short-term lending rules to be issued by the CFPB. While we negotiated a new revolving credit facility in July 2014, the terms were generally more restrictive than prior credit agreements. Our current revolving credit facility matures on July 23, 2016. At maturity, we may not be able to extend our current credit facility at all or on terms that are attractive to us. The reduced availability under our current revolving credit facility, or the inability to refinance our current credit facility, could require us to take measures to conserve cash until alternative credit arrangements or other funding for our business needs can be arranged. Such measures could include deferring capital expenditures, including acquisitions, restricting growth of the long-term installment loan product, reducing operating expenses, terminating any cash dividends, pursuing the sale of certain assets or considering other alternatives designed to enhance liquidity. Our revolving credit facility contains restrictions and limitations that could significantly affect our ability to operate our business. Our revolving credit facility contains a number of significant covenants that could adversely affect our business. These covenants restrict our ability, and the ability of our subsidiaries to, among other things: incur additional debt; create liens; effect mergers or consolidations; make investments, acquisitions or dispositions; enter into certain sale and leaseback transactions. As a result, our ability to respond to changing business and economic conditions and to secure additional financing, if needed, may be significantly restricted, and we may be prevented from engaging in transactions that might further our corporate strategies. Our obligations under the credit facility are guaranteed by each of our existing and future domestic subsidiaries. The borrowings under the revolving credit facility are guaranteed by all of our operating subsidiaries (other than the foreign subsidiaries) and are secured by liens on substantially all of our personal property including the personal property of our U.S. subsidiaries. In the event of our insolvency, liquidation, dissolution or reorganization, the lenders under our credit facility and any other then existing debt of ours would be entitled to payment in full from our assets before distributions, if any, were made to our stockholders.

Data Source: https://www.sec.gov/Archives/edgar/data/1289505/000119312515088809/d854360d10k.htm

<br> Source Excerpt:</br>Advance America 2004 Credit Agreement. The below excerpt refers to the Affirmative Covenants agreed to by Advance America which includes the submission of company-prepared financial statements:

“Within forty-five (45) days after the end of each fiscal quarter of the Consolidated Group [Advance America], a statement showing the revenue, expenses and Branch Operating Income for each branch office of the members of the Consolidated Group for such fiscal quarter, all in reasonable detail and certified by a Responsible Officer of the Borrower as to the correctness and accuracy of the financial information contained therein.”

Data Source:https://www.sec.gov/Archives/edgar/data/1299704/000104746904026511/a2141558zex-10_1.htm#Section7AffirmativeCovenants

<br> Analytic Note: QC Holding also had this language in their 2007 and 2008 10-Ks.

Data Source:</br> 2007: https://www.sec.gov/Archives/edgar/data/0001289505/000119312508057365/d10k.htm

2008: https://www.sec.gov/Archives/edgar/data/0001289505/000119312509053802/d10k.htm

<br> Analytic Note: This classification of payday lenders stems from a comparison of company operating details that are discussed in annual reports.

For example, in its 2005 annual report (2005:4) , Advance America writes,

“We are the largest provider of payday cash advance services in the United States, as measured by the number of centers operated. As of December 31, 2005, we operated 2,604 centers in 36 states…We provide these services primarily to middle-income working individuals. We do not franchise any of our centers. We focus primarily on payday cash advance services and do not provide pawn lending, title lending or similar services. We believe our primary focus on payday cash advance services is a competitive strength that has allowed us to better reach and service our primary market of middle-income customers."

Data Source: https://www.sec.gov/Archives/edgar/data/1299704/000104746906003578/a2168354z10-k.htm

Analytic Note: In contrast, that same year, ACE Cash Express noted (2005:3) that it's business focused on both padyay loans and check cashing:

"As of June 30, 2005, we had a total network of 1,371 stores in 37 states and the District of Columbia, consisting of 1,142 company-owned stores and 229 franchised stores. This makes us the largest owner, operator and franchisor of check cashing stores in the United States and one of the largest providers of short-term consumer loans, also known as payday loans. We focus on serving unbanked and underbanked consumers, many of whom seek alternatives to traditional banking relationships in order to gain convenient and immediate access to check cashing services and short-term consumer loans.”

Data Source: https://www.sec.gov/Archives/edgar/data/849116/000095013405017550/d28716e10vk.htm

Through these statements I confirm that Advance America offers only payday loan products, while ACE offers both check cashing and payday loans.

<br> Source Excerpt:</br>QC Holding 2007 10-K

“Furthermore, we may decide to incur debt to fund all or part of the costs of an acquisition. For example, we borrowed $16.3 million on our revolving credit facility to finance the acquisition of 51 branches in December 2006.”

Data Source: https://www.sec.gov/Archives/edgar/data/1289505/000119312508057365/d10k.htm

<br> Data Source: https://www.sec.gov/Archives/edgar/data/0000876523/000095013408022121/d65552e10vk.htm

<br> Source Excerpt: Advance America Prospectus 2004

“We borrow under our $265.0 million revolving credit facility daily to fund our payday cash advances and to fund our other liquidity needs. Our day-to-day balances under our revolving credit facility, as well as our cash balances, vary because of seasonal and day-to-day requirements resulting from making and collecting payday cash advances.“

Data Source: https://www.sec.gov/Archives/edgar/data/1299704/000104746904037527/a2148783z424b1.htm

<br> Analytic Note: Check Into Cash initially filed for an IPO in the late 1990s but then decided not to proceed with going public. As a result, I do not have information from this company that allows tracking changes over time.

<br> Analytic Note: For example, the covenants that appear in the credit arrangements analyzed here all include:

Affirmative (or Informational) Covenants: e.g., submitting financial and other reports to the banks, holding insurance, maintain properties.

Financial Covenants: the financial terms that the company must maintain, e.g., maximum leverage ratios; minimum net worth; specific EBITDA (used to measure company performance);

Negative Covenants: e.g., restrictions on the ability to incur debt, enter into mergers, liens.

Events of Default: the set of events or circumstances that will enable the banks to require the payday lender to accelerate the repayment of the loan. Typically, a breach of financial covenants is considered a triggering event, as well as non-payment of the loan.

The inclusion of these covenants are standard across commercial credit agreements. Compare for example, the Table of Contents in the 2004 credit agreement between Advance America and its syndicate of banks, and that in the 2006 credit agreement between Family Dollar (a general retail store) and its syndicate of banks, linked below:

Data Source:</br>Advance America, 2004 Credit Agreement: https://www.sec.gov/Archives/edgar/data/1299704/000104746904026511/a2141558zex-10_1.htm#a7930

Family Dollar, 2006 Credit Agreement: https://www.sec.gov/Archives/edgar/data/1299704/000104746904026511/a2141558zex-10_1.htm#a7930

<br> Source:</br> QC 2007 8-K, Exhibit 10.1:

“Permitted Acquisition” means an Acquisition that satisfies each of the following requirements: (i) the target Person is in the same line of business as Borrower, (ii) the total consideration paid for any single Acquisition shall not exceed $5,000,000, (iii) the aggregate consideration paid for all such Acquisitions, from the Closing Date through the Termination Date does not exceed $25,000,000, (iv) after giving effect to the Acquisition, the Borrower shall have a minimum liquidity of not less than three months of Cash Operating Expenses and the Leverage Ratio of the Borrower shall be 0.25x less than the Leverage Ratio required pursuant to Section 7.02(c) of this Agreement, (v) if the Acquisition takes the form of a merger, the Borrower or one of its wholly-owned subsidiaries must be the surviving entity, (vi) the Acquisition shall not create a Default or Event of Default under this Agreement, and (vii) not later than five (5) Business Days prior to the consummation of the proposed Acquisition, the Borrower shall have provided to the Agent pro forma financial statements giving effect to the Acquisition which demonstrate continued compliance with the financial covenants contained in this Agreement.

Data Source: https://www.sec.gov/Archives/edgar/data/1289505/000119312507263832/dex101.htm

<br> Source Excerpt: </br>Cash America 2008 10-K

Changes in the capital markets or the Company’s financial condition could reduce available capital. The Company regularly accesses the debt capital markets to refinance existing debt obligations and to obtain capital to finance growth. Efficient access to these markets is critical to the Company’s ongoing financial success; however, the Company’s future access to the debt capital markets could become restricted due to a variety of factors, including a deterioration of the Company’s earnings, cash flows, balance sheet quality, or overall business or industry prospects, a significant deterioration in the state of the capital markets or a negative bias toward the Company’s industry by market participants.

Data Source: https://www.sec.gov/Archives/edgar/data/0000807884/000095013408003751/d54337e10vk.htm

<br> Data Source: https://www.sec.gov/Archives/edgar/data/0001271625/000127162505000054/exhibit991.htm

<br> Source Excerpt: Advance America 2008 10-K

"During the last few years, legislation has been adopted in some states that prohibits or severely restricts our products and services. For example, legislation became effective in 2007 in both Oregon and New Mexico that limited fees and interest on cash advances and other consumer loan products. As a result, we determined that it was not economically viable to continue operating in Oregon or New Mexico and closed all of our centers in Oregon and New Mexico in 2007 and 2008, respectively…In 2008, in Ohio and New Hampshire, legislation passed that effectively prohibits cash advances in those states. As a result, we decided to close all of our centers in New Hampshire in early 2009.  In Ohio, we now offer a small loan product to customers; however, this small loan product will not be as profitable to us as the former cash advance product."

Data Source: https://www.sec.gov/Archives/edgar/data/1299704/000104746909002196/a2190876z10-k.htm

<br> Source Excerpt:</br>ACE Cash Express 2005 10-K

“We opened 80 company-owned stores in fiscal 2005 (including 20 ACE Cash Advance stores), compared to 53 stores in fiscal 2004 and 14 stores in fiscal 2003. Our company-owned store growth in fiscal 2003 was less than our historical new store growth primarily due to limitations on capital expenditures imposed by our bank credit agreement through March 31, 2003. Our current bank credit agreement enables us to pursue our company-owned store growth strategy more aggressively. We expect to open approximately 50 to 60 new ACE Cash Express company-owned stores and 50 to 60 ACE Cash Advance company-owned stores, with a net gain of approximately 70 to 100 company-owned stores after store closures, in fiscal 2006. We are still targeting an aggregate net gain of approximately 300 company-owned stores for the five-year period ending June 30, 2008."

Data Source: https://www.sec.gov/Archives/edgar/data/849116/000095013405017550/d28716e10vk.htm

<br> Source Excerpt:</br>QC Holding 2013 10-K

Our recent financial performance has resulted in less favorable borrowing terms and may adversely affect our ability to extending our revolving credit facility or to obtain additional loans to finance our business operations or acquisition opportunities. In addition to the generally tight credit markets in the past five years as a result of the 2008-2009 recession and national credit crisis, we have experienced declining financial results in the past three years, which have resulted in our failure to meet various financial covenants in our credit agreements. While our bank lending group has waived or amended those financial covenants in the past, each waiver or amendment has resulted in less availability under our revolving credit agreement, stricter payday requirements on our term loans and generally higher loan costs and tighter loan covenants (including restrictions on payment of dividends). Our credit facility matures on September 30, 2014. Unless our financial results improve in 2014, we may not be able to extend our current credit facility at all or on terms that are attractive to us. The reduced availability under our current revolving credit facility, or the inability to refinance our current credit facility, could require us to take measures to conserve cash until the markets stabilize or until alternative credit arrangements or other funding for our business needs can be arranged. Such measures could include deferring capital expenditures, including acquisitions, restricting growth of the long-term installment loan product, reducing operating expenses, pursuing the sale of certain assets or considering other alternatives designed to enhance liquidity.

Data Source: https://www.sec.gov/Archives/edgar/data/1289505/000119312514097821/d658612d10k.htm

<br> Analytic Note: To construct this network, I created a longitudinal dataset that included the name of the payday lender, and the names of each lead bank involved in, the dollar value of, and the relevant year(s) of each credit agreement. This information was primarily identified through the individual credit agreements and annualized to make a payday lender-year file.

To extend the historical reach of the network, I also identified retrospective details of credit agreements between payday lenders and banks by closely reading through references made in S-1s, early 10-Ks, and related exhibits.

For instance, Advance America filed its S-1 in 2004, and the current credit agreement at the time was dated July 16 2004, but I could identify credit information, including lead creditors, as far back as 1999 using the following documents.

Source Excerpt: S-1, Exhibit 10.2: The introduction to the terms of a Senior Subordinated Note is as follows: “THIS INSTRUMENT IS SUBJECT TO THE SUBORDINATION AGREEMENT DATED AS OF OCTOBER 26, 1999 (AS AMENDED) BY AND AMONG ADVANCE AMERICA, CASH ADVANCE CENTERS, INC. AND ITS SUBSIDIARIES AND AFFILIATES IDENTIFIED THEREIN, BANK OF AMERICA, N.A., …”

Data Source: https://www.sec.gov/Archives/edgar/data/1299704/000104746904026511/a2141558zex-10_2.htm

Analytic Note: Further, S-1, Exhibit 10.3 notes that the “’Senior Loan Agreement’ means the Amended and Restated Credit Agreement dated as of May 22, 2001 by and among Issuer (as borrower), the subsidiaries and affiliates of the Issuer identified therein (as guarantors), the lenders identified therein and Bank of America, N.A., (as Administrative Agent) and all agreements, documents and instruments delivered pursuant thereto in connection with the loans and advances made thereunder, as such agreements and documents may be amended, amended and restated, supplemented, consolidated or otherwise modified from time to time in accordance with the terms and provisions of the Subordination Agreement.”

Data Source: https://www.sec.gov/Archives/edgar/data/1299704/000104746904026511/a2141558zex-10_3.htm

<br> Analytic Note: QC made this note in the section of the annual report that discusses potential business risks. They consider the loss of the bank credit to be a potential risk factor. This potential risk is discussed in more detail below.

Source Excerpt: "We depend on loans and cash management services from banks to operate our business. If banks decide to stop making loans or providing cash management services to us, it could have a material adverse affect on our business, results of operations and financial condition."

Data Source: https://www.sec.gov/Archives/edgar/data/1289505/000119312508057365/d10k.htm

<br> Source Excerpt</br>Dollar Financial 2009 10-K

Longer term disruptions in the capital and credit markets as a result of uncertainty, changing or increased regulation, reduced alternatives, or failures of significant financial institutions could adversely affect our ability to refinance our existing credit facilities on favorable terms, if at all. The lack of availability under, and the inability to subsequently refinance, our credit facilities, could require us to take measures to conserve cash until the markets stabilize or until alternative credit arrangements or other funding for our business needs can be arranged. Such measures could include deferring capital expenditures, including acquisitions, and reducing or eliminating other discretionary uses of cash.

Data Source: https://www.sec.gov/Archives/edgar/data/1271625/000095012309040898/w74935e10vk.htm

<br> Data Source: https://www.sec.gov/Archives/edgar/data/0001299704/000104746904037527/a2148783z424b1.htm

<br> Source Excerpt </br>Advance America 2011 10-K

Adverse economic conditions may significantly and adversely affect our business, prospects, results of operations, financial condition, and access to liquidity.The current global economic crisis may adversely affect our business in several ways. For example, the rise in unemployment levels will likely reduce the number of customers who qualify for our products and services, which in turn may reduce our revenues. Similarly, reduced consumer confidence and spending may decrease the demand for our products. Also, we are unable to predict how the widespread loss of jobs, housing foreclosures, and general economic uncertainty may affect our loss experience. Our methodology for establishing our provision for doubtful accounts is based in large part on our historic loss experience. If customer behavior changes as a result of current economic conditions, our provision may be inadequate. Additionally, because we rely on our credit facility to fund customer advances, conditions in the credit markets could cause our access to liquidity to be restrained or even eliminated as a result of a default by our lenders, a failure by us to comply with covenants under our credit agreement or our inability to renew, extend, or modify our existing credit facility. If we are unable to maintain access to external sources of liquidity, our ability to finance our current operations or future dividends would be impaired. Lastly, given the unprecedented nature of the current economic crisis, our business may be adversely affected in ways that we are unable to anticipate.

Data Source: https://www.sec.gov/Archives/edgar/data/1299704/000104746912002758/a2208026z10-k.htm

<br> Data Source: https://www.sec.gov/Archives/edgar/data/0001299704/000104746908002021/a2182974z10-k.htm

See also annual 10-Ks in 2007 and 2009, where the same language appears:

2007: https://www.sec.gov/Archives/edgar/data/0001299704/000110465907015580/a07-6508_110k.htm

2009: https://www.sec.gov/Archives/edgar/data/0001299704/000104746909002196/a2190876z10-k.htm

<br> Analytic Note: This growth was identified using annual storefront counts provided in each annual 10-K filed by each company.

<br> Data Source: EZ Corp 2008 Credit Agreement

https://www.sec.gov/Archives/edgar/data/0000876523/000095013409000019/d65775exv10w1.htm

Note that this language is also consistent with earlier agreements; see for example the 2004 Credit Agreement between EZ Corp and its bank creditors:

https://www.sec.gov/Archives/edgar/data/0000876523/000095013404006995/d15228exv10w89.txt

<br> Analytic Note: This cost was not uncommon across the documents reviewed. For instance, ACE Cash Express noted in its 2005 10-K (p. 31): “Expenditures related to acquisitions were $19.4 million, $6.9 million, and $0.7 million, for the fiscal years ended June 30, 2005, 2004, and 2003, respectively.”

They later go onto note that they acquired 74 stores in 2005; 34 stores in 2004; and 2 stores in 2003 (see p. 81), making the cost of each store acquisition roughly $250,000.

Data Source: https://www.sec.gov/Archives/edgar/data/849116/000095013405017550/d28716e10vk.htm

<br> Source Excerpt: </br>QC 2011 10-K

"We believe that disruptions in the capital and credit markets in 2008 and 2009 are continuing to adversely affect the availability and cost of commercial credit. In addition, uncertainty as to the economic recovery and changing and increased regulation coming out of the recession, including the Dodd-Frank Act, are additional disruptions to the capital and credit markets for our industry. We believe that these factors directly and adversely affected the terms of our credit agreement, which we renegotiated in fall 2011, approximately 15 months before the maturity of the prior credit agreement. See the discussion immediately below of the terms of the new credit agreement and the requirement that we obtain $3.0 million of subordinated debt as a condition to that new credit agreement. We believe that these factors may also affect our ability to refinance the new revolving and term loan credit facility on favorable terms, if at all, and our ability to incur additional indebtedness to fund acquisitions, business ventures and distributions to our stockholders or other corporate purposes. Our current credit facility matures on September 30, 2014. The reduced availability under our new revolving credit facility, or the inability to refinance our current credit facility, could require us to take measures to conserve cash until the markets stabilize or until alternative credit arrangements or other funding for our business needs can be arranged."

Data Source: https://www.sec.gov/Archives/edgar/data/1289505/000119312512114214/d288042d10k.htm

<br> Source Excerpt</br>ACE Cash Express 2002 Credit Agreement

Includes covenants that restrict Ace from making, or agreeing or committing to make, any acquisition of stores, from entering into any additional lease agreements or opening any new stores, from spending amounts to construct or finish out any new stores other than the stores that Ace had committed to lease or construct or finish out as of December 31, 2001, or from making capital expenditures in excess of $2 million (in addition to the permitted new-store finish-out expenditures), in each case on or before April 30, 2002 without the lenders' prior written consent.

Data Source:https://www.sec.gov/Archives/edgar/data/0000849116/000095013402000055/d93265e8-k.txt

<br> Data Source: https://www.sec.gov/Archives/edgar/data/849116/000095013405017550/d28716e10vk.htm

<br> Analytic Note: Specifically, 10-Ks filed with the SEC are required to include “Section 1-A, Risk Factors.” This section includes a range of risk factors for each payday lender: from pending lawsuits to regulatory changes to insufficient growth or financing.

For the six publicly traded payday lenders discussed here, I refer to this section to identify what risks each company sees for their future business success.

<br> Analytic Note: To make this figure, I used the annual revenue information provided in the company annual reports to calculate the share of revenue (or record the share if it is already calculated in the report).

<br> Analytic Note: Lead banks are easily identified in the commercial credit contracts. They are listed on the cover page [see Image 1]. Banks are also often discussed by name in the body of the credit agreement.

Lead Banks, as defined here, only include commercial banks. Commercial banks refer to banks that have a “National Association” or “N.A.” designation, e.g. Bank of America, N.A. This does not include investment banks or investment banking subsidiaries of some bank holding companies. I make this distinction because investment banks would not be involved in the consumer credit market, but commercial banks are.

In the credit agreement presented in Image 1 in the QDR Repository, the lead banks are:

Wachovia Bank, N.A. Wells Fargo Bank, N.A. US Bank National Association Bank of America, N.A.

The two securities entities, Banc of America Securities, LLC and Wachovia Capital Markets LLC, are not included in this analysis.

Minor banks on this agreement are: National City Bank of Pennsylvania, National Bank of South Carolina, Carolina First Bank, First Tennessee Bank, BB&T, and Texas Capital Bank. They are not included in analysis, as noted in the main text.

Data Source: https://www.sec.gov/Archives/edgar/data/1299704/000104746904026511/a2141558zex-10_1.htm

<br>Analytic Note: Formerly detained non-citizens, private immigration lawyers, and members of non-governmental organizations have reported squalid conditions, grossly insufficient medical standards, and abuse at the hands of government officials, all of which raise questions about violations of international and U.S. standards of human rights.

Source Excerpt: On Friday, Representative Nanette Barragán, Democrat of California and the chairwoman of the House homeland security subcommittee on border security, toured the shelter at the convention center in Long Beach and said the Biden administration was providing minors with much more humane conditions in the health department facilities than they had while in Border Patrol custody, where she said youths slept on mats on the ground and lacked medical care. “Let’s get the kids out of Border Patrol custody as quickly as possible,” Ms. Barragán said in an interview after touring the shelter, which housed 728 migrant children, with room for only 72 more. “In the H.H.S. custody, even in the emergency centers, they have medical staff, they have beds, they have television, they have activities.” Even so, she said she was “concerned” with data showing that the program was in need of more money in the coming months. “Make no mistake,” Ms. Barragán said, “there are things we need to work on.” Migrant surges in the spring are typical, but this year has brought record numbers. While previous administrations focused on expanding the number of facilities run by border agents, the Biden administration has pivoted by spending money on developing temporary shelters in convention centers, military sites and vacant arenas. “The administration is qualitatively looking at this response to this migration event in a different way,” said Cris Ramón, an immigration consultant based in Washington. During the 2020 presidential campaign, Mr. Biden promised that the United States would return to being a compassionate destination for migrants, a sharp contrast with the harsh policies put in place by President Donald J. Trump, who used an emergency public health rule to turn children away. Mr. Biden has committed to allowing these children to enter the country. And housing the migrant children is not the only challenge on the border for the Biden administration. The United States has also been increasingly allowing migrant families to enter the country because of new barriers to sheltering families in Mexico. As a result, the administration has struggled to find space for them and has turned to housing them in hotels before releasing them into the country.

Link to Data Source: * https://www.nytimes.com/2021/05/07/us/politics/migrant-children-shelters.html * Human rights groups maintain similar collections of similar articles available at: 1. https://www.aclu.org/news/by-issue/immigration-detention-conditions/ 2. https://www.splcenter.org/attention-on-detention

<br>Analytic Note: Excerpts from research interviews with private immigration attorneys clarify ICE attorneys' professional incentives for pursuing cases where the non-citizen respondent is neither dangerous nor a flight risk. Specifically, courtroom experience is a key factor when assigning immigration judgeships. Therefore, ICE attorneys may choose to detain non-dangerous individuals in order to acquire trail experience necessary for career advancement.

Source Excerpt: * RI 7: I did think when Brito came down that [ICE] would perhaps release people. Because pre-Brito they would arrest somebody, you know, for a driving without a license charge. And it's still my burden to show that that guy should be let out. Even though that's all he has on his record for 20 years or whatever. I don't think [ICE released people] to the extent it really should have; they still try to put on their case even when their cases are weak. * RI 51: One of the nice things about the Boston immigration court, though, is that a lot of the trial attorneys are former district attorneys. And so they're used to like conferencing the case. [ICE attorneys] don't just come straight from law school to government. They typically have experience in a forum where they're used to meeting to communicate with the other side. * RI 69: And it is easier to get into a judgeship if you were previously in law enforcement because you've already gone through the background checks. And more court experience is one heavy factor when weighing of the immigration judgeship. And for immigration judgeships, prosecutors are always going to have more court experience than the people representing the non-citizens.

Link to Data Source: * Research Interview 7: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/PV33MN * Research Interview 51: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/2OP5YN * Research Interview 69: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/ZFK3WF

<br>Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are concerned with the weaponization of performance metrics in politically-motivated policy warfare.

Source Excerpt: (p. 7) Equally disturbing, because the performance metrics set the bar so high that all judges are incapable of meeting them, EOIR is empowered to dismiss judges who fail to follow their policy preferences under the pretext of inadequate performance. This is what happens when the structure of the Immigration Courts allow it to be used as a tool for immigration enforcement rather than as a fair and independent tribunal. They are a pretext. These meaningless and politically-motivated performance metrics are clearly designed to intimidate judges rather than to honestly evaluate their performance. It places each judge at odds with their oath of office to provide impartial justice because their continued employment hangs in the balance. Yet this is just another example of the pernicious effect of the structural defect of allowing the Immigration Court to remain in a law enforcement agency.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

<br>Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that, under the Trump Administration, the DOJ used several tools that threatened fair treatment in immigration courts. These included, first, a performance management system that penalized IJs for spending more than the allotted time on a single case. Second, the government attacked the National Association of Immigration Judges, which was the entity pushing to end quotas and give immigration courts judicial independence (visit the NAIJ's Publications Archive for public statements and policy position papers). And finally, priorities guidance instructed ICE agents and attorneys who they were supposed to target and detain.

Source Excerpt: I observed several of the hearings right after Brito to see how they were going. And, you know, the ordering was different. So that's obviously a change. I guess I would say that, I don't know that I observed that the judges' behavior was necessarily different in terms of the outward manifestation of what they were thinking. You know, I guess I would also mention that there have been some external things that have been happening on judges, immigration judges in the not-so-distant past that also coincided with that period. You probably are aware that there were a series of efforts to undermine the independence of the immigration judges, including an effort by the Trump administration that I think was at least initially successful, to decertify their union protections. So that happened to and I want to say that was true, you can look it up, but I believe that was 2019-ish, probably. Decisions were happening in that. So there were issues with [the judges] independence. And again, I'm not saying I saw that reflected in the hearings, I observed. But, you know, I don't know what effect that has. I believe there were attempts to track more closely the progress of their cases through things like automated dashboards and things like that, that they're being forced to use. And then there have also some changes more recently, that might be somewhat relevant, at least to the population that's coming before the judges. The Trump administration had priorities guidance about who [ICE officials] were supposed to be targeting. And [Biden] got rid of that. [Trump] went with an all-of-the-above strategy for immigration arrests. When the Biden administration came in, they issued priorities guidance to narrow that back down again. So in theory, at least, whether or not that's happening, I'm sure, is a subject of much discussion. So the profile that people may be coming before the judges over time may have changed to some degree.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/F1OOBA

<br>Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are not advocating for more personnel or resources but rather an institutional change that will create an independent immigration court in accordance with the separation of powers.

Source Excerpt: (p. 2) We acknowledge that it is difficult to look past the immediacy of the overwhelming backlog of cases which currently stands just shy of 1.1 million cases. This amounts to an almost doubling of the backlog in three years, in spite of the largest ever immigration judge hiring initiative (over 200) and concomitant increase in court appropriations in the history of EOIR. The “backlog” has been used as a justification, an excuse, and most often as pretext for implementing otherwise indefensible policies and practices with respect to the Immigration Court. Yet the problem is not a backlog or lack of funds; it is the structural flaw of the Immigration Court, located within a law enforcement agency, that frustrates the ability to properly address the backlog or the appropriated funds. It is time to acknowledge the truth organizations such as the NAIJ, the American Bar Association, the Federal Bar Association, and numerous others have stated publicly for years: unless and until the Immigration Court is removed from the DOJ and established as an independent court, we cannot begin to adequately address the immigration crisis we face as a nation.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

<br>Analytic Note: By contrast, the Biden administration’s directive (09/30/2021) narrowed immigration enforcement and prioritized those individuals that threaten national security, public safety, and border security (see RI #64, #69). Research participants (see RI #7, #10) noted COVID forced the Trump administration to soften how ICE prioritized detaining individuals and managing ongoing cases.

Source Excerpt: * RI 7: All sorts of people were detained before. You could be like a mom of three and you could be detained no matter what, right. \(\dots\) So when Brito first came down, [the government] had not [been bringing different types of cases forward, or allowing some of the individuals bonded release earlier knowing that it will be a harder case to prove in court.] It was very much, you know, almost business as usual. Same number of people being detained all of that. Now, there are way fewer bond hearings around here in Boston. So there are way fewer bond hearings, and fewer people detained, but I don't think it has to do with Brito, I think it has to do with like COVID. And there's a lot of action around here to try to not overcrowd the jails, because of COVID. So ICE can release people if they want just by themselves, and they don't have to put on a bond case they can just parole them or release them. And I think that to try to not overcrowd the jails. Some of that had happened. RI 10: I can't really speak to the rest of the country, unfortunately. I do know that it seemed like there was definitely a higher standard during COVID. I mean, a lot of people were just getting letters to call in; they weren't even asking them to show up to their appointments at ICE. The check-in appointments and stuff they were just being asked to call in. If they tried to show up they would get sent away. [Compared to before the COVID pandemic], I feel like ICE was trying to keep people away versus collecting them around here. But yeah, I can't speak to the rest of the country. * RI 10: I can't really speak to the rest of the country, unfortunately. I do know that it seemed like there was definitely a higher standard during COVID. I mean, a lot of people were just getting letters to call in; they weren't even asking them to show up to their appointments at ICE. The check-in appointments and stuff they were just being asked to call in. If they tried to show up they would get sent away. [Compared to before the COVID pandemic], I feel like ICE was trying to keep people away versus collecting them around here. But yeah, I can't speak to the rest of the country. * RI 64: The Trump administration had priorities guidance about who [ICE officials] were supposed to be targeting. And [Biden] got rid of that. [Trump] went with an all-of-the-above strategy for immigration arrests. When the Biden administration came in, they issued priorities guidance to narrow that back down again. So in theory, at least, whether or not that's happening, I'm sure, is a subject of much discussion. So the profile that people may be coming before the judges over time may have changed to some degree. * RI 69: Responding the the quetion, "I liked what you said about the 'burden to produce evidence' but also the 'burden to persuade,' given those added costs on the government side, have you noticed that the government is releasing people earlier in the process so that they can just focus on cases? Or do you think they're still bringing in the same types of cases now as they were before?" RI #69 response: "I don't think that [Brito] made a difference as to which cases [ICE] decided to detain and not to detain. I think the Biden enforcement priorities probably do make a difference about deciding to detain and not detain. But I think [the Brito] decision did not impact that."

Link to Data Source: * Biden Administration's directive: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/WWXTYW * Research Interview 7: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/PV33MN * Research Interview 10: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/LEXP17 * Research Interview 64: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/F1OOBA * Research Interview 69: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/ZFK3WF

<br>Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are asking for the same institutional changes that private, reputed organizations argued for previously: the need for an independent court following the separation of powers.

Source Excerpt: (p. 15) Every reputable organization that has studied the Immigration Court has reached the same conclusion. The American Bar Association has produced an in-depth and extensive report of the need for an independent Immigration Court. The Federal Bar Association has drafted proposed Article 1 legislation. The American Immigration Lawyers Association, the largest organization of immigration law attorneys who practice on a daily basis before the Court, has formally endorsed an independent Immigration Court. If nothing else, the drastic pendulum swings between the previous and current administration’s use and abuse of the Immigration Court has evidenced what our founding fathers knew at the inception of our country— the importance of separation of powers between the judicial role of the government from its law enforcement prerogatives. The judicial role of the Immigration Court is simply irreconcilable with the law enforcement mission and role of the DOJ. The only real and lasting solution is the establishment of an independent Immigration Court. Only then will we begin to move forward in solving the immigration crisis facing our nation.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

<br>Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs know their decision are difficult to review under the legal regime in place.

Source Excerpt: It almost felt like for the judges who wanted to deny they just settled into this, "I'm going to recite these magic words," and "I'm going to say that there is clear and convincing evidence of dangerousness and that there is no reasonable alternative to detention that can protect the community or ensure the client safe." I have also tried to litigate this issue unsuccessfully. Once you have a judge who said all the magic words, even if the evidence doesn't meet clear and convincing standard, the district court will probably say, "No jurisdiction to review. You're asking me to reweigh the evidence and that is barred because there's a jurisdiction stripping statute within the detention statute. 8 US Code 1226, Section E, says there is no jurisdiction by a federal court to review a discretionary decision to detain. And so what you're complaining about is that evidence shouldn't have been weighted so heavily, that's a discretionary decision [that cannot be reviewed]."

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/ZFK3WF

<br>Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs combine risk-aversion with unclear standards.

Source Excerpt: I just feel like often the government is just saying, "Seems dangerous to me. Look at this one police report." And if you have to prove dangerousness by clear and convincing evidence, I don't think there's any IJ who thinks [a police report] on its own is clear and convincing. Well, maybe there are, but not in Boston. So I do think [the Brito decision] mattered. [Brito] didn’t change the underlying fact that whose burden it is isn’t going to change the results. [If ] you have a long enough criminal record[, which] doesn’t technically bar you from bond, it makes the judge feel that you’re not safe. That's not going to change based on who has the burden.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/C91RC1

<br>Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs combine risk-aversion with unclear standards.

Source Excerpt: But once the burden was shifted to the government, I feel like the entire job was different. You know, because, well, you know, beforehand, we really had to go--it wasn't beyond a reasonable doubt--but it was, you know, we had to really convince the judge that does history that the detainee had was not going to cause any other problems. So I mean, let's be honest, the judge is always [asking], "What am I going to see in the newspaper the next day? What am I going to see on TV? Am I going to see that this person with a drunk driving arrest [from] 10 years ago going to be in five more [accidents and] kill somebody?" So our burden of proof before Brito was pretty significant. A lot of things in immigration a preponderance of the evidence. You were lucky depending on which judge you've got. Some judges don't like [operating under the influence] and some judges don't like assault and battery. It really just depends on the judge and whether or not you could meet a standard of more likely than not preponderance of the evidence. It was just all over the board beforehand, but it was very difficult. It was very difficult to prove that somebody was, like I said, was not a danger to the community or not a flight risk, especially if you couldn't access records fast enough.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/LEXP17

<br>Analytic Note: An excerpt from this research interview with a private immigration attorney explains that IJs' decisions are always discretionary, no matter what standard they are required to follow.

Source Excerpt: To the judge's satisfaction feeds the immigration judge's sense that they operate nearly entirely on discretion. And they do. Basically, every application they see before them is discretionary. So the judge's personalities can play into it to a very high degree. Having a precise legal standard, I don't think, takes their personalities and their influences out of the equation. \(\dots\) I think they do speak to the standard. But I don't know if they're cognizant of the fact that there's a standard. They say what it is, and then they decide what they want.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/1K5HBD

<br>Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) illustrates that immigration judges recognize that longstanding institutions shape constraints and incentives that compel judges' behavior to conform to the political will of the Attorney General and, by extension, the White House.

Source Excerpt: (p. 1) The performance evaluation system has been turned into a mechanism to enforce the political will of the the-ncurrent administration on the immigration court and immigration judges. The current system places inappropriate focus on “organizational results,” which EOIR has equated with production quotas and time-based deadlines. The major flaw in the current evaluation and discipline structure for immigration judges stems from the fact that DOJ considers and treats immigration judges as merely attorney employees and not as judges. This violates the immigration court’s organic statute. By statute, we are attorneys appointed by the Attorney General to serve as judges. Since the language clearly reflects our judicial function once appointed, a traditional judicial model for performance evaluation and discipline is warranted. The current protocols employed by EOIR stand in stark contrast to how other courts nationwide evaluate judges.

Link to Data Source: * NAIJ Policy and Position Statement “Overview of EOIR Discipline and Performance Protocols. Posted Posted Mar 20, 2021. https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/J0U84D * See also: NAIJ - Overview of EOIR Discipline and Performance Protocols

<br>Analytic Note: Excerpts from research interviews with private immigration attorneys illuminate how they provide important value to respondents, especially those held in custody, unfamiliar with U.S. laws, and/or non-English speaking. Competent lawyers can acknowledge and effectively rebut the government's claims; without them, the government would likely ride roughshod over a respondent's argument (RI #7, #52). Capable attorneys can review the government's case and prepare appropriate responses, including composing legal strategy, piecing together a compelling story on why and how the respondent is not dangerous, and collecting evidence supporting the respondent's counterarguments (RI #23).

Source Excerpt: * RI 7: Now, post Brito, the government presents the case and talks about how terrible my client is, and all these crimes they've committed, or whatever it is they want to say. And then my response rubuts that. I would say, "Nope. That's not true. Here's what happened." Or [I would say], "Yes, I acknowledge that. But look at all the wonderful ways he's changed since then." So, you're acknowledging their argument and rebutting it. * RI 23: In a practical sense, it means that we are actually getting paperwork from the government ahead of our bond hearings, which is just magical. \(\dots\) I think my stress levels going into a hearing changed a little bit because I knew what the government had and what they were likely to say. And I knew that if they thought someone was secretly a gang member, that would be at the top of their submission rather than after I've put together my 20-minute presentation. But, you know, if I think they have anything, then I can't tell my client, "Well, let's just hang back, see what the government comes up with." I need to have proof that my client is not dangerous. I had a client who was convicted of embezzlement. It was not great sounding. Okay. And he and another family member were co-defendants and the other family member had, to my mind, done a great deal more. More bad guy stuff than my client. And so I'm not going to let the government say, "Look, he's got a federal conviction." I have to think through what motivates my client has to stay here. I have to think through my argument that my guy has relief. How am I going to map out for the judge that that relief is not a pipe dream? [I have to explain,] "No, your honor. It's gonna be like this, he's gonna do A, he's gonna do B, he's going to do C. And you're gonna see that he's eligible for D." So I have to have that tight. The burden might be on the government, but if I can't say he's eligible for anything, I don't think any judge can ignore that. And the burden isn't really on the government to say what he's eligible for, especially when I have to do the fact-finding. * RI 52: I think that the burden-shifting made it much easier for detained immigrants to be able to get bond because instead of this ridiculous proving a negative of my client is not a flight risk. My client is not a danger to society, it was the government's job to actually demonstrate how they were a flight risk or a danger to the community.

Link to Data Source: * Research Interview #7: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/PV33MN * Research Interview #23: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/1K5HBD * Research Interview #52: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/RD0IPI

<br>Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) describes how bond hearings' quick tempo exacerbates inequities in the courtroom. To be precise, respondents are generally laypersons, non-English speakers who carry the burden of proof. Though they have the right to attorney, one is not provided for them. These disadvantaged, inexperienced defendants must prove their case against competent government lawyers.

Source Excerpt: (p. 5) DHS is always represented by an attorney, typically one who has handled hundreds, if not thousands, of cases and can more readily accommodate a shortened time frame for trial. The respondents are often unrepresented, non-English speaking, and forced to appear before a judge who is penalized for slowing down to provide more guidance. The respondents also carry the burden of proof to persuade the judge to allow them to remain in the United States under the law. Any lack of evidence caused by the speed at which the metrics force judges to process cases works against the respondent and can be fatal to his or her case.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

<br>Analytic Note: Excerpts from research interviews with private immigration attorneys suggest IJs and ICE personnel erect a compliance facade to make it appear they comply with Brito but, in reality, seek to maintain the status quo. This includes going through the exercise of exploring a person's financial ability to pay a bond when the IJ has no intention of awarding a bond (RI #7); wrongly suggesting that detentions before the Brito decision are not subject to the new standards (RI #10); misinterpreting judicial rulings (RI #51); and not applying the appropriate standard IJs should use when making decisions (RI #52).

Source Excerpt: * RI 7: Now, I would say the judges are very careful to at least make it look as if they're following Brito. One of the things Brito says is that you have to consider someone's financial ability to pay. That you can't set a bond without considering that because the same amount of money could be different for, you know, depending on who you are, could be more or less realistic, depending on who you are. So now, judges are very careful to do that. They ask almost all the time, they're good about that, about financial ability to pay, even in cases where you can tell they're never going to give you a bond. They've already decided they're going to deny the bond, but they're careful about, you know, checking all the boxes. And so they'll say, "Alright, how much money do they have in their bank account? How much family support do they have here? Is there anybody who'd be willing to pay the bond on their behalf? How much money does that person have?" And so they are careful; they know that that's a requirement of Brito. They're careful about that. The other thing that they're often careful about is mitigation. The government has to prove that there are no circumstances that would allow this person to be released safely into the community. And so, you know, for example, on a case where someone's had a DUI charge, I'll always argue to make it a condition that they not drive, or we could install this breathalyzer in their car. I'll put suggestions for what we could do to reasonably have this person released and still be safe for the community. And the judges are careful about considering those as well, because of the new standard. * RI 10: I remember, at the very beginning, it was hard to get the government's to do that, you know, it was like, "Oh, this is a pre-Brito arrest. So we don't have to do that analysis. It's still your burden." You know, so there was still some wrangling of hands during that time. * RI 51: The government and judges acted like [Brito] didn't exist. So ultimately, petitions were filed in federal court is my understanding. And then once the immigration court and the trial attorneys started to get reminded that they had to follow this new case, then they started being more favorable to issuing bond.\(\dots\) I believe there's been more compliance with the standard lately than when it first came out. I think that there was a real push against the idea of this significance because this was a sea change shift in bond proceedings. \(\dots\) What's so completely fascinating to me, is that these cases come from the real courts, right from the actual courts, with real judges that enforce real laws. And the BIA immigration judges are like, "That's not what they meant." \(\dots\) But you still need to remind the judges all the time about it, and you need to remind the trial attorneys about it. * RI 52: I think the sentiment was that it should have changed the way the court practiced more than it did. I think the burden itself was shifted to the government. So the government went first, and the immigration attorney went second. But the way the judges actually made the decisions, it did not appear that they were burden shifting the way that they were required. That was the kind of general schoolyard chatter among the immigration attorneys was, yes, technically, the order in which things were happening changed. But the way the judges were making the decision did not appear to have changed very much. \(\dots\) The discretion that the judges have in these situations is always a big concern for us because. Like I said, you can say, "I'm applying XYZ thing," but at the end of the day, it's what the judge says. You either satisfy the bond standard to their level or you don't. And they can say they're applying the new rule and everything else. But if the decisions were not changing, in my mind, that wasn't going to be a big surprise. And that was sort of what we're seeing.

Link to Data Source: * Research Interview #7: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/PV33MN * Research Interview #10: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/LEXP17 * Research Interview #51: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/2OP5YN * Research Interview #52: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/RD0IPI

<br>Analytic Note: Excerpts from research interviews with private immigration attorneys demonstrate that an IJ's ignorance of Brito should not be an excuse. First, as RI #71 explains, courts are interactive and allow both attorneys to professionally remind IJs of legal developments and IJs to clarify how a recent legal development affects the case before the court. Second, as RI #69 explains, courts can revisit past decisions and correct due process failures.

Source Excerpt: * RI #71: I assume the IJ doesn't know anything about this. And just put it on the record. And sometimes, I don't advise this specifically. But I know my friends, and I know that they say things like, as I'm sure your honor is where he, you know, in Brito, V blah, blah, blah, blah, blah, blah, blah. So if they're not aware, then they can ask further questions. \(\dots\) It also helps them immediate situation to sort of put the judge on notice, like, remember, we're in Massachusetts, remember, you know, because you're doing video calls all over the country. Remember, here in Massachusetts, we have this. * RI #69: Certain judges were doing detainee cases, and others were not. [My client] got in front of this judge for a bond hearing. The IJ said Brito standards apply, but she forgot to consider alternatives to detention. Literally did not even consider them even though we have put them in our packet and mentioned them. We had argued about that when she gave her decision. Still, she said I find that he's a flight risk. Here's why. Period. And there was no consideration that a GPS ankle monitor can actually ensure that he'll come back. Nothing. And so we went, we went back to the district court and did a motion to enforce the judgment. To argue that she failed to consider alternatives to detention. And Brito requires that. And then we went back for a new bond hearing in May, and she did release with an ankle monitor. And she literally said, "I did not complete the analysis." And I remember thinking, it's because this alternative to detention thing is kind of new. And the last time she was deciding detention cases, this wasn't a thing. And so she didn't, like it wasn't of part of her mindset of what needed to be done. We ultimately got what we wanted out of that case, but it was just more circuitous than I would have liked.

Link to Data Source: * Research Interview #69: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/ZFK3WF * Research Interview #71: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/C91RC1

<br>Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows how the DOJ's policy and administrative decisions hamper the immigration judges' ability to discharge their duties and responsibilities under the law. DOJ's failure to provide in-person training and continuing legal education concerning legal developments in the field breeds ignorance and incompetence among IJs.

Source Excerpt: (p. 3) EOIR inappropriately minimizes the administrative time allotted for judges to keep current on legal developments, prepare for and review the reams of documentation frequently submitted in support of a given case, and render decisions in complex, vigorously litigated matters. In 2019, EOIR cancelled the annual in-person immigration judge training. Furthermore, EOIR terminated the ability of local judicial law clerks to provide courts with updated circuit and case law. Immigration judges are required to rely on centralized information provided by the Office of Policy which is often untimely, not court specific, and without the depth of analysis provided by law clerks who previously were responsible for the dissemination of this information.

Link to Data Source: * NAIJ Policy and Position Statement “Immigration Court in Crisis and in Need of Reform.” Posted Sep 19, 2019. https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/Z39KX6 * See also: NAIJ - Immigration Court in Crisis and in Need of Reform

<br>Analytic Note: A comprehensive legal review found two other federal courts enacted legal rules identical to Brito, but those changes occured two and seven months after our study period ends. Government documents confirm this and guide IJs to make bond hearings in the same manner in December 2020 as November 2017 (Office of the Chief Immigration Judge, 2017, 2020a,b).

Source Excerpt: 2017 Immigration Court Practice Manual

Chapter 9.3 - Bond Hearings

(a) In general. — In certain circumstances, an alien detained by the Department of Homeland Security (DHS) can be released from custody upon the payment of bond. Initially, the bond is set by DHS. Upon the alien’s request, an Immigration Judge may conduct a “bond hearing,” in which the Immigration Judge has the authority to redetermine the amount of bond set by DHS.

$$\dots$$

(e) Bond hearings.—In a bond hearing, the Immigration Judge determines whether the alien is eligible for bond. If the alien is eligible for bond, the Immigration Judge considers whether the alien’s release would pose a danger to property or persons, whether the alien is likely to appear for further immigration proceedings, and whether the alien is a threat to national security. In general, bond hearings are less formal than hearings in removal proceedings.

$$\dots$$

(e)(vii) Decision. — The Immigration Judge’s decision is based on any information that is available to the Immigration Judge or that is presented by the parties. See 8 C.F.R. § 1003.19(d).

Usually, the Immigration Judge’s decision is rendered orally. Because bond hearings are generally not recorded, the decision is not transcribed. If either party appeals, the Immigration Judge prepares a written decision based on notes from the hearing.

Link to Data Source: * version November 2017: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/OCDJKJ * version July 2020: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/EIAM0V * version August 2020: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/IBNRSY * version December 2020: https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/RXFTI7

<br>Analytic Note: Again, we focus the model on the issue of dangerousness, understanding that a respondent’s potential flight risk is also an issue. It is useful to note that Brito did not change the flight risk standard nearly as much as it did the dangerousness standard. Second, in so far as the standards/burdens shifted, they shifted in the same direction.

Source Excerpt: (pp. 2-3) In summary, the Court holds and declares as follows: First, the Board of Immigration Appeals ("BIA") policy of placing the burden of proof on the alien at 8 U.S.C. § 1226(a) bond hearings violates due process and the APA. Second, due process requires the Government prove at § 1226(a) bond hearings an alien's dangerousness by clear and convincing evidence or risk of flight by a preponderance of the evidence. Third, due process requires the immigration court to evaluate an alien's ability to pay in setting bond, and consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien's future appearances. Fourth, the Government shall produce to class counsel certain information regarding each member of the Post-Hearing Class in order to facilitate individual habeas petitions challenging their continued detention.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/CGJLVJ

<br>Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. This research participant thought that Brito's class-action nature was especially relevant.

Source Excerpt: I was obviously really excited about it. I remember hearing about it the day before Thanksgiving in 2019. Obviously a huge win. I'd been involved in the litigation for a while, as I said. I was excited that finally, someone agreed, adopted arguments, and on a class wide basis. That is why it was so important. I had been more frustrated by the fact that litigating this issue, you had to do in this piecemeal fashion, because unless it was a class action, you had to file--you know, lose at a bond hearing, file a habeas corpus petition--and hope to get a decision on that before the issue became moot. And several of my cases had become moot before I could get a resolution. It seems like there is no power or impact from the prior district court decisions if the immigration judges don't have to follow them. And so that's why the class action piece of it was so important. I was optimistic because it had the reach that I had wanted for a long time, which is through a class as opposed to these individual petitions.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/ZFK3WF

<br>Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. The research participant thought that Brito led to more people being released, but the effect was not as large as expected.

Source Excerpt: All sorts of people were detained before. You could be like a mom of three and you could be detained no matter what, right. And now we definitely see fewer people detained, more serious crimes. It's tough to tell [Brito's effects] because a bunch of those are getting denied. They would have been denied anyway at any time. But I do think when Brito came out, more people were being released. Not as many, I mean, we thought this was gonna change our entire world. We thought it was going to be that everyone was going to get out and that that certainly didn't happen. But sure, more people got out.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/PV33MN

<br>Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. According to this research participant, the decision did not appear to have its full effect immediately, however.

Source Excerpt: Anticipating our discussion today, I went back through some of my old listserves to [remind myself what private immigration attorneys thought when Brito came out.] Everybody was in kind of shock from it all. And defense lawyers totally thought that it was going to be the silver bullet, like we thought, oh, great, we're going to be able to just go in, and then the government's going to have to prove [the case]. [Immediately following the decision}, the government and the judges, all acted like it didn't exist. And so ultimately, petitions were filed in federal court is my understanding. And then once the immigration court and the trial attorneys started to get reminded that they had to follow this new case, then they started being more favorable to issuing bond.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/2OP5YN

<br>Analytic Note: In December 2021, the First Circuit affirmed in part and vacated in part the declaratory judgment and permanent injunction issued by the district court in this class action challenging the bond procedures used to detain noncitizen during the pendency of removal proceedings under 8 U.S.C. 1226(a), the discretionary immigration detention provision, holding that the district court lacked jurisdiction to issue injunctive relief in favor of the class. In June 2022, the U.S. Government filed a petition to have Brito’s burden ruling reconsidered by the full (“en banc”) group of First Circuit judges.

Source Excerpt: (pp. 33-34) For the foregoing reasons, we affirm the district court's declaratory judgment to the extent it declared that if the government refuses to offer release subject to bond to a noncitizen detained pursuant to 8 U.S.C. §1226(a), it must either prove by clear and convincing evidence that the noncitizen is dangerous or prove by a preponderance of the evidence that the noncitizen poses a flight risk. We otherwise vacate the district court's declaratory judgment and permanent injunction and remand for entry of judgment in accordance with this opinion.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/PNULCL * See also: https://cases.justia.com/federal/appellate-courts/ca1/20-1037/20-1037-2021-12-28.pdf?ts=1640728809

<br>Analytic Note: “The ‘beyond a reasonable doubt’ standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the ‘moral force of the criminal law,’ In re Winship, 397 U.S., at 364, and we should hesitate to apply it too broadly or casually in noncriminal cases.” Addington v. Texas, 441 U.S., 428.

Source Excerpt: (pp.363-364) The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States, supra, at 453. As the dissenters in the New York Court of Appeals observed, and we agree, ‘a person accused of a crime...would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case." 24 N. Y. 2d, at 205, 247 N. E. 2d, at 259. The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, at 525-526: ‘There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt be- yond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967). Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” U.S. Reports: In re Winship, 397 U.S. 363-364 (1970).

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/0B9UNP * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep397/usrep397358/usrep397358.pdf

<br>Analytic Note: The Supreme Court considers clear and convincing evidence is appropriate where the litigant with the benefit of the doubt has a “particularly important interest” at stake. Colorado v. New Mexico, 467 U.S. 310, 315-317 (1984) defines clear and convincing evidence.

Source Excerpt: (pp. 316-317) The standard reflects this Court's long-held view that a proposed diverter should bear most, though not all, of the risks of erroneous decision: "The harm that may result from disrupting established uses is typically certain and immediate, whereas the potential benefits from a proposed diversion may be speculative and remote." Colorado v. New Mexico, 459 U. S., at 187; see also id., at 182, n. 9. In addition, the clear-and-convincing- evidence standard accommodates society's competing interests in increasing the stability of property rights and in putting resources to their most efficient uses: "[T]he rule of priority [will] not be strictly applied where it 'would work more hardship' on the junior user 'than it would bestow benefits' on the senior user ...[,though] the equities supporting the protection of existing economies will usually be compelling." Id., at 186-187 (quoting Nebraska v. Wyoming, 325 U. S. 589, 619 (1945)).

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/HGTRC3 * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467310/usrep467310.pdf

<br>Analytic Note: The standard is met if the proposition is more likely to be true than not true. Stated differently, the standard is satisfied if there is a greater than fifty percent chance that the proposition is true.

Source Excerpt: (pp. 423-424) Addington v. Texas, 441 U.S. 418, 423 (U.S. Sup. Ct. 1979). The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusion for a particular type of adjudication.” In re Winship, 397 U.S. 358, 370 (170) (Harlan, J., concurring). Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, the plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interest of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/UYJWCA * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep441/usrep441418/usrep441418.pdf

<br>Analytic Note: In a legal dispute, one party is presumed to be correct and the other bears the burden of producing evidence persuasive enough to satisfy all the dispute’s legal elements. In criminal cases, the government carries the burden of proof while the defendant is presumed innocent.

Source Excerpt: (pp.423-424) Addington v. Texas, 441 U.S. 418, 423 (U.S. Sup. Ct. 1979). Since society has a minimal concern with the outcome of such private suits, the plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interest of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/UYJWCA * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep441/usrep441418/usrep441418.pdf

<br>Analytic Note: Structurally, the Immigration Court is housed in the Executive Office for Immigration Review (EOIR), an agency within the United States Department of Justice. Under delegated authority from the Attorney General, Immigration Judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws.

Source Excerpt: 8 C.F.R. §1001.1(l): The term immigration judge means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 240 of the Act. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/TCQFPR * See also: https://www.ecfr.gov/current/title-8/chapter-V/subchapter-A/part-1001/section-1001.1

<br>Analytic Note: In Brito v. Barr, the court ordered that for all immigration courts within its jurisdiction the burden of proof be assigned to the government; and, that the government must prove that the immigrant respondent is a flight risk by the preponderance of the evidence and dangerousness by clear and convincing evidence. The decision only applied to bond hearings in Massachusetts. We leverage the natural experiment created by the Brito decision to consider the causal effect of reallocating the burden of proof and establishing more familiar standards of proof on immigration court outcomes.

Source Excerpt: (p.22) The Court declares that aliens detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence and that no condition or combination of conditions will reasonably assure the alien’s future appearance and the safety of the community. At the bond hearing, the immigration judge must evaluate the alien’s ability to pay in setting bond above $1,500 and must consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances.

Link to Data Source: * https://data.qdr.syr.edu/privateurl.xhtml?token=515b519b-f318-4142-9443-d972822d547c&file=doi:10.5064/F60LYDGR/CGJLVJ

<br>Theoretical Exposition: By construction, an IJ will always infer correctly that a respondent is peaceful if the IJ observes weak evidence. The question is what to infer when the evidence is strong. Since only \(ICE_1\) denies initial bond, strong evidence also perfectly reveals whether the respondent is dangerous. If the IJ will deny bond upon seeing strong evidence, it is possible that \(ICE_0\) might want to take advantage of the IJ’s beliefs and deny initial bond to an individual who is peaceful. To ensure that \(ICE_0\) has no incentive to do this, it must be that strong evidence is sufficiently discriminating or that $$q<\frac{\epsilon_0}{v_0}$$, the first threshold in Figure 1. Shifting the burden \(v_0\) of proof to the prosecution would have made this kind of equilibrium easier to sustain for increasingly coarse evidentiary signals (high values of \(q\)). This change would have plausibly increased the costs of litigation for ICE, shifting the first threshold to the right.

<br>Theoretical Exposition: We will also assume that $$v_0>\epsilon_{0}$$, so that no prosecutor would fail to deny bond initially if she believed that that the IJ would also certainly deny bond. This assumption can be relaxed without doing any harm to the analysis. The consequence is that some of the equilibria we identify would require additional conditions to be identified in the results section. Substantively, it is also defensible. It means that \(ICE_1\), who knows that the detainee is dangerous, would not release him simply to avoid paying the costs of litigation. And once we have assumed that \(ICE_0\) is willing to go to court in order to keep a peaceful person in detention, we have already implicitly assumed that \(v_0\) must be relatively large.

<br>Methodological Description: (i.e., that the treatment effect is 0 for all units) One of the advantages of conducting a randomized trial is that the researcher knows the precise procedure by which the units were allocated to treatment and control. Randomization inference considers what would have happened under all possible random assignments, not just the one that happened to be selected for the experiment at hand.

Source Excerpt: In order to simulate all possible random assignments, we need to stipulate the counterfactual outcomes – what we would have observed among control units had they been treated or among treated units had they not been treated. The sharp null hypothesis of no treatment effect for any unit is a skeptical worldview that allows us to stipulate all of the counterfactual outcomes. If there were no treatment effect for any unit, then all the control units’ outcomes would have been unchanged had they been placed in treatment. Similarly, the treatment units’ outcomes would have been unchanged had they been placed in the control group. Under the sharp null hypothesis, we therefore have a complete mapping from our data to the outcomes of all possible experiments. All we need to do is construct all possible random assignments and, for each one, calculate the test statistic (e.g., the difference in means between the assigned treatment group and the assigned control group). The collection of these test statistics over all possible random assignments creates a reference distribution under the null hypothesis. If we want to know how unusual our actual experimental test statistic is, we compare it to the reference distribution. For example, our experiment might obtain an estimate of 6.5, but 24% of all random assignments produce an estimate of 6.5 or more even in the absence of any treatment effect. In that case, our one-tailed p-value would be 0.24.

Link to Data Source: * https://egap.org/resource/10-things-to-know-about-randomization-inference/

<br>Methodological Description: The synthetic is a weighted combination of control units from non-treated jurisdictions. Suppose that there is a sample of \(J+1\) jurisdictions indexed by \(j\), among which unit \(j=1\) is the jurisdiction of interest and jurisdictions \(j=2\) to \(j=J+1\) are potential comparisons. The treated unit, \(j=1\), is the jurisdiction exposed to the intervention. The remaining jurisdictions, \(j=2\) to \(j=J+1\) comprise the ``donor pool'' of potential comparison units unexposed to the intervention under study.

<br>Theoretical Exposition: For this to be true, strong evidence must be sufficiently discriminating for the IJ, which requires that $$q< \frac{\pi \beta}{\alpha(1-\pi)}$$. Given that \(ICE_1\) knows that strong evidence will be observed at the hearing, \(ICE_1\) knows that the IJ will deny bond and the incentive to deny bond initially is transparent. In order for \(ICE_0\) to deny bond, it must be sufficiently likely that weak evidence will nevertheless appear strong at the hearing. This requires $$q \geq \frac{\epsilon_0}{v_0}$$. Thus, for this case, we require \(q\) to fall between the two thresholds in Figure 1: it must be neither too likely nor too unlikely that a weak case will appear strong. Placing the burden of proof on the prosecution would have reduced the range of \(q\) for which this equilibrium exists for two reasons. The change in the burden of production would have shifted the first threshold to the right by increasing \(\epsilon_0\). The change in the burden of persuasion would have shifted the second threshold to the left by increasing \(\alpha\) (or decreasing \(\beta\) or both).

<br>Theoretical Exposition: This assumes that players (in this case the IJ) do not attempt to draw inferences about the type of ICE prosecutor before them when they find themselves at a history that should not be reached if the players adopt their equilibrium strategies. We will also assume the IJ to use information about how evidence emerges. There is one example in our model when this happens, specifically in the case “No Docket,” where no prosecutor brings a case to immigration court. This is admittedly an odd equilibrium. If an IJ in such an equilibrium was in fact asked to run a custody hearing, we are assuming that she would not draw an inference about the type of prosecutor before her but use her understanding about how evidence emerges. For example, we still allow the IJ to conclude that the respondent most not be dangerous if the IJ observes \(e_w\).

<br>Methodological Description: We took several steps to test these findings’ robustness. We shifted our unit of analysis from HBC to state and extended the time between observations from week to month. These adjustments did not change our general findings but did have the undesirable results of a smaller donor pool and fewer post-treatment observations. We also shortened the pre-treatment period to fewer than 38 weeks. This did not change our findings, but did make the synthetic control less precise. In another step, we added predictors to assess whether they changed our results. They did not. Our results persisted, but with less precision, regardless of which predictors we added to the synthetic control. The predictors used for robustness checks include a respondent’s gender, language, and nationality; each IJ’s gender and party of the president who appointed them; county-level vote share for the 2016 presidential candidates; and state-level measures for governorships and unemployment rates. We also utilized a synthetic difference-in-differences estimation procedure Arkhangelsky et al.’s (2021) that calculates an average treatment effect on the treated (ATT) as the pre- versus post- difference-in-difference between treated units and synthetic control units, where synthetic control units are chosen as an optimally weighted function of untreated units. The ATT was -1.89 (p = 0.92) and 0.05 (p = 0.17) for caseload and rate granted bond, respectively.

<br>Methodological Description: These observational data nest as follows: states contain multiple HBCs, each HBC contains multiple IJs, each IJ makes multiple bond hearing decisions in a single period, and detainees may make several appearances in immigration court concerning their bonded release.

<br>Methodological Description: All variables are averaged over the entire pre-intervention period up to but excluding the intervention period. Predictors selected to minimize MSPE in the pre-treatment period.

<br>Theoretical Exposition: As we describe in the text, the shift in the burden of proof would have increased \(\epsilon_i\) and \(\alpha\). The first change would have increased the range of values of \(q\) for which the equilibrium in Case 1 could be sustained. Relative to Case 2, the immigration court caseload is lower in Case 1. The bond grant rate is also lower in Case 1 than Case 2 since there are no cases in which weak evidence is observed.

<br>Methodological Description: Decisions outside our scope are those in which IJs declared they had no jurisdiction (8,142 observations). Undefined decisions are those with missing (2,340 observations) or uninterpretable codes (772 observations). The data contain several illogical coding combinations that we remove. First, we omit observations in which the decision code indicates the IJ decided on a new bond amount, but the data is missing information on this new amount (75 observations). We also strike observations where the decision code indicates the IJ made “no change” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (199 observations). We take similar action when the decision code indicates the IJ took “no action” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (407 observations). Fourth, we eliminate observations in which the initial and new bond amounts are zero, but the decision codes include “recognizance,” “no change,” and “no bond” (48 observations). Finally, we create a binary variable identifying whether an IJ decides to grant bonded release for the remaining 203,799 observations.

<br>Analytic Note: Attorneys General for republican presidents appointed 8 of the 11 judges assigned to the Boston Immigration Court Staff as of October 2019. Seventy-five percent of those IJs were appointed in 2017 or later.

Methodological Description: Boston Immigration Court Staff as of October 2019. Judge name, EOIR identifier, year appointed, number of decisions made, and rate granted provided for reference: 1. Jose A. Sanchez, Assistant Chief Immigration Judge (identifier JS1, appointed 2017, 86 decisions, 43% rate granted bond) 2. Robin Feder (REF, 2006, 8, 38%) 3. John Furlong Jr. (JMF, 2019, 662, 36%) 4. Paul Gagnon (PMG, 2002, 3, 33%) 5. Lincoln Jalelian (LSJ, 2019, 1, 0%) 6. Todd Masters (TAM, 2018, 605, 31%) 7. Jennifer Mulcahy (JRM, 2019, 676, 33%) 8. Brenda O’Malley (OMB, 2009, 1, 0%) 9. Maureen O’Sullivan (MOS, 2010, 1, 100%) 10. Mario Sturla (MJS, 2016, 378, 29%) 11. Gwendylan Tregerman (GET, 2017, 259, 17%)

<br>This is an Annotation for Transparent Inquiry project, published by the Qualitative Data Repository.

The Data Overview discusses project context, data generation and analysis, and logic of annotation.

Please cite as:

DeMattee, Anthony. 2022. "Data for Burden Shifting in Immigration Bond Decisions". Qualitative Data Repository. https://doi.org/10.5064/F60LYDGR. QDR Main Collection.

Learn more about ATI here.

<br>Analytic Note: Attorneys General for republican presidents appointed 8 of the 11 judges assigned to the Boston Immigration Court Staff as of October 2019. Seventy-five percent of those IJs were appointed in 2017 or later.

Methodological Description: Boston Immigration Court Staff as of October 2019. Judge name, EOIR identifier, year appointed, number of decisions made, and rate granted provided for reference: 1. Jose A. Sanchez, Assistant Chief Immigration Judge (identifier JS1, appointed 2017, 86 decisions, 43% rate granted bond) 2. Robin Feder (REF, 2006, 8, 38%) 3. John Furlong Jr. (JMF, 2019, 662, 36%) 4. Paul Gagnon (PMG, 2002, 3, 33%) 5. Lincoln Jalelian (LSJ, 2019, 1, 0%) 6. Todd Masters (TAM, 2018, 605, 31%) 7. Jennifer Mulcahy (JRM, 2019, 676, 33%) 8. Brenda O’Malley (OMB, 2009, 1, 0%) 9. Maureen O’Sullivan (MOS, 2010, 1, 100%) 10. Mario Sturla (MJS, 2016, 378, 29%) 11. Gwendylan Tregerman (GET, 2017, 259, 17%)

<br>Analytic Note: Again, we focus the model on the issue of dangerousness, understanding that a respondent’s potential flight risk is also an issue. It is useful to note that Brito did not change the flight risk standard nearly as much as it did the dangerousness standard. Second, in so far as the standards/burdens shifted, they shifted in the same direction.

Source Excerpt: (pp. 2-3) In summary, the Court holds and declares as follows: First, the Board of Immigration Appeals ("BIA") policy of placing the burden of proof on the alien at 8 U.S.C. § 1226(a) bond hearings violates due process and the APA. Second, due process requires the Government prove at § 1226(a) bond hearings an alien's dangerousness by clear and convincing evidence or risk of flight by a preponderance of the evidence. Third, due process requires the immigration court to evaluate an alien's ability to pay in setting bond, and consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien's future appearances. Fourth, the Government shall produce to class counsel certain information regarding each member of the Post-Hearing Class in order to facilitate individual habeas petitions challenging their continued detention.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/CGJLVJ

<br>Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are not advocating for more personnel or resources but rather an institutional change that will create an independent immigration court in accordance with the separation of powers.

Source Excerpt: (p. 2) We acknowledge that it is difficult to look past the immediacy of the overwhelming backlog of cases which currently stands just shy of 1.1 million cases. This amounts to an almost doubling of the backlog in three years, in spite of the largest ever immigration judge hiring initiative (over 200) and concomitant increase in court appropriations in the history of EOIR. The “backlog” has been used as a justification, an excuse, and most often as pretext for implementing otherwise indefensible policies and practices with respect to the Immigration Court. Yet the problem is not a backlog or lack of funds; it is the structural flaw of the Immigration Court, located within a law enforcement agency, that frustrates the ability to properly address the backlog or the appropriated funds. It is time to acknowledge the truth organizations such as the NAIJ, the American Bar Association, the Federal Bar Association, and numerous others have stated publicly for years: unless and until the Immigration Court is removed from the DOJ and established as an independent court, we cannot begin to adequately address the immigration crisis we face as a nation.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

<br>Analytic Note: Excerpts from research interviews with private immigration attorneys suggest IJs and ICE personnel erect a compliance facade to make it appear they comply with Brito but, in reality, seek to maintain the status quo. This includes going through the exercise of exploring a person's financial ability to pay a bond when the IJ has no intention of awarding a bond (RI #7); wrongly suggesting that detentions before the Brito decision are not subject to the new standards (RI #10); misinterpreting judicial rulings (RI #51); and not applying the appropriate standard IJs should use when making decisions (RI #52).

Source Excerpt: * RI 7: Now, I would say the judges are very careful to at least make it look as if they're following Brito. One of the things Brito says is that you have to consider someone's financial ability to pay. That you can't set a bond without considering that because the same amount of money could be different for, you know, depending on who you are, could be more or less realistic, depending on who you are. So now, judges are very careful to do that. They ask almost all the time, they're good about that, about financial ability to pay, even in cases where you can tell they're never going to give you a bond. They've already decided they're going to deny the bond, but they're careful about, you know, checking all the boxes. And so they'll say, "Alright, how much money do they have in their bank account? How much family support do they have here? Is there anybody who'd be willing to pay the bond on their behalf? How much money does that person have?" And so they are careful; they know that that's a requirement of Brito. They're careful about that. The other thing that they're often careful about is mitigation. The government has to prove that there are no circumstances that would allow this person to be released safely into the community. And so, you know, for example, on a case where someone's had a DUI charge, I'll always argue to make it a condition that they not drive, or we could install this breathalyzer in their car. I'll put suggestions for what we could do to reasonably have this person released and still be safe for the community. And the judges are careful about considering those as well, because of the new standard. * RI 10: I remember, at the very beginning, it was hard to get the government's to do that, you know, it was like, "Oh, this is a pre-Brito arrest. So we don't have to do that analysis. It's still your burden." You know, so there was still some wrangling of hands during that time. * RI 51: The government and judges acted like [Brito] didn't exist. So ultimately, petitions were filed in federal court is my understanding. And then once the immigration court and the trial attorneys started to get reminded that they had to follow this new case, then they started being more favorable to issuing bond.\(\dots\) I believe there's been more compliance with the standard lately than when it first came out. I think that there was a real push against the idea of this significance because this was a sea change shift in bond proceedings. \(\dots\) What's so completely fascinating to me, is that these cases come from the real courts, right from the actual courts, with real judges that enforce real laws. And the BIA immigration judges are like, "That's not what they meant." \(\dots\) But you still need to remind the judges all the time about it, and you need to remind the trial attorneys about it. * RI 52: I think the sentiment was that it should have changed the way the court practiced more than it did. I think the burden itself was shifted to the government. So the government went first, and the immigration attorney went second. But the way the judges actually made the decisions, it did not appear that they were burden shifting the way that they were required. That was the kind of general schoolyard chatter among the immigration attorneys was, yes, technically, the order in which things were happening changed. But the way the judges were making the decision did not appear to have changed very much. \(\dots\) The discretion that the judges have in these situations is always a big concern for us because. Like I said, you can say, "I'm applying XYZ thing," but at the end of the day, it's what the judge says. You either satisfy the bond standard to their level or you don't. And they can say they're applying the new rule and everything else. But if the decisions were not changing, in my mind, that wasn't going to be a big surprise. And that was sort of what we're seeing.

Link to Data Source: * Research Interview #7: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN * Research Interview #10: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/LEXP17 * Research Interview #51: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/2OP5YN * Research Interview #52: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/RD0IPI

<br>Methodological Description: Decisions outside our scope are those in which IJs declared they had no jurisdiction (8,142 observations). Undefined decisions are those with missing (2,340 observations) or uninterpretable codes (772 observations). The data contain several illogical coding combinations that we remove. First, we omit observations in which the decision code indicates the IJ decided on a new bond amount, but the data is missing information on this new amount (75 observations). We also strike observations where the decision code indicates the IJ made “no change” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (199 observations). We take similar action when the decision code indicates the IJ took “no action” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (407 observations). Fourth, we eliminate observations in which the initial and new bond amounts are zero, but the decision codes include “recognizance,” “no change,” and “no bond” (48 observations). Finally, we create a binary variable identifying whether an IJ decides to grant bonded release for the remaining 203,799 observations.

<br>Analytic Note: Excerpts from research interviews with private immigration attorneys demonstrate that an IJ's ignorance of Brito should not be an excuse. First, as RI #71 explains, courts are interactive and allow both attorneys to professionally remind IJs of legal developments and IJs to clarify how a recent legal development affects the case before the court. Second, as RI #69 explains, courts can revisit past decisions and correct due process failures.

Source Excerpt: * RI #71: I assume the IJ doesn't know anything about this. And just put it on the record. And sometimes, I don't advise this specifically. But I know my friends, and I know that they say things like, as I'm sure your honor is where he, you know, in Brito, V blah, blah, blah, blah, blah, blah, blah. So if they're not aware, then they can ask further questions. \(\dots\) It also helps them immediate situation to sort of put the judge on notice, like, remember, we're in Massachusetts, remember, you know, because you're doing video calls all over the country. Remember, here in Massachusetts, we have this. * RI #69: Certain judges were doing detainee cases, and others were not. [My client] got in front of this judge for a bond hearing. The IJ said Brito standards apply, but she forgot to consider alternatives to detention. Literally did not even consider them even though we have put them in our packet and mentioned them. We had argued about that when she gave her decision. Still, she said I find that he's a flight risk. Here's why. Period. And there was no consideration that a GPS ankle monitor can actually ensure that he'll come back. Nothing. And so we went, we went back to the district court and did a motion to enforce the judgment. To argue that she failed to consider alternatives to detention. And Brito requires that. And then we went back for a new bond hearing in May, and she did release with an ankle monitor. And she literally said, "I did not complete the analysis." And I remember thinking, it's because this alternative to detention thing is kind of new. And the last time she was deciding detention cases, this wasn't a thing. And so she didn't, like it wasn't of part of her mindset of what needed to be done. We ultimately got what we wanted out of that case, but it was just more circuitous than I would have liked.

Link to Data Source: * Research Interview #69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF * Research Interview #71: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/C91RC1