TREVOR G. GARDNER Assistant Professor/Faculty Fellow New York University Law School 22 Washington Square North, New York, NY 10011 Phone: (212) 992-8139 (office); (617) 905-6906 (mobile) gardnert@law.nyu.edu EDUCATION University of California, College of Letters & Sciences, Berkeley, CA PhD, Sociology, Fall 2014 Dissertation Committee: Margaret Weir (Political Science/ Sociology) (Chair); Sandra Smith (Sociology); Jonathan Simon (Law/ Jurisprudence and Social Policy). Dissertation: The Safest Place: Immigrant Sanctuary in the Homeland Security Era. MA, Sociology, Spring 2009 Master s Thesis: Black-on-Black Policing: Ethnic Identification Among African-American Police in Washington, DC, and Oakland, CA. Qualifying Exams: 1) Policing and Risk Assessment in Modern Society; 2) Sociology of Race and Ethnicity; 3) Social Theory. Harvard Law School, Cambridge, MA JD, June 2003 Activities: Co-Editor-in-Chief, Harvard BlackLetter Law Journal University of Michigan, College of Literature, Science, and the Arts, Ann Arbor, MI BA with High Distinction, Sociology, May 1999. TEACHING AND RESEARCH INTERESTS CORE COURSES Criminal Law, Criminal Procedure, Immigration CRIME AND POLICING Police Governance, Crime Governance, Criminal Justice Federalism, Immigration Federalism, Criminal Theory LAW AND SOCIAL SCIENCE Sociology of Law, Law and Society, Empirical Legal Studies PUBLICATIONS The Utility of the Anti-Commandeering Jurisprudence in the Homeland Security Era, THE SAINT LOUIS PUBLIC LAW REVIEW (special issue, The New Civil War: State Nullification of Federal Law 150 Years after Appomattox, forthcoming, 2015). Despite the broad powers the federal government wields in the field of security administration, the Supreme Court s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars
over the Court s reasoning in Printz and the rigid rule against commandeering attached to this reasoning often obscure the fact that the case now stands as a bulwark against federal influence over state, county, and local police. Given the holding in Printz, the Immigration and Customs Enforcement Agency (ICE), for instance, cannot require the active participation of subnational police in immigration enforcement and must instead despite its previous assertions to the contrary solicit this support from state and local governments. Subnational governments may, in turn, participate in immigration enforcement of their own volition. How does an elective rather than legally mandated system of cooperative security governance impact domestic security? Opponents of the Court s decision in Printz contend that the rule against federal commandeering of state and local police hamstrings the federal government in times of national emergency, compromising the security of the citizenry. Supporters argue in response that the restrictions set in Printz would likely galvanize the public debate about the very conception of domestic and national security, as the restrictions give state and local governments clear legal authority to establish formal bureaucratic opposition to federal attempts to expand security infrastructure through the incorporation of subnational police. The case of immigrant sanctuary will not resolve the debate among the justices in Printz or that among the legal scholars concerned with the impact of the decision on the contours of federalism in contemporary American society. It can, however, offer empirical evidence helpful in investigating a few of the primary, yet speculative claims made by advocates on either side of the commandeering debate. I present the case of immigrant sanctuary as a platform from which to consider the promise and peril of anti-commandeering jurisprudence in the Homeland Security era. Empirical analysis in the article derives from an original data set based on the coding of 75 immigrant sanctuary laws and policies. Gardner, T. G. (2014). Racial Profiling as Collective Definition, Social Inclusion, 2(3), 52-59 (peer reviewed). Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice. However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In the article, I review the literature on group distinction to discern its relevance to the practice and study of racial profiling. I argue that the costs of racial profiling extend beyond inefficient policing and the humiliation of law-abiding minority pedestrians and drivers. Racial profiling is simultaneously a process of perception and articulation of relative human characteristics (both positive and negative); it binds and reifies the concepts of race and criminality, fixing them into the subconscious of the profiled, the profiler, and society at large. Gardner, T., ed. (forthcoming, 2015). Fear, Distrust, and Social Capital in Urban Police Investigation, Carceral Notebooks. Police and social critics explain social norms against cooperation with urban police investigation as stemming from threats and intimidation by serial law-breakers. However, data from two urban ethnographies and interviews with city police officers suggest that in poor urban neighborhoods norms against cooperation with police often insulate residents from various forms of social disorder caused by police. Invasive surveillance techniques, frequent punishment for minor offenses, and the collateral consequences of such punishments place additional burdens on fragile, marginalized city communities. I present the idea that norms against enforcement cooperation can be conceptualized as "protective" social capital, where community solidarity builds in the interest of protection from police. Enforcement noncooperation may therefore be the result of fear of an organized criminal element or, alternatively, distrust of the police institution. Gardner, T., & Kohli, A. (2009). The CAP Effect: Racial Profiling in the ICE Criminal Alien Program. Policy Brief. Berkeley: Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity and University of California at Berkeley Law School. Gardner, T. The Political Delinquent: Crime, Deviance, and Resistance in Black America, 20 HARV. BLACKLETTER L.J. 137 (2004). PAGE 2 OF 8 GARDNER
MANUSCRIPTS UNDER REVIEW Immigrant Sanctuary and the Return of Federalist Penology (submitted to Law & Society Review) (peer reviewed). Immigrant sanctuaries are the product of state and local law and administrative policy that restrict cooperation between police and federal immigration enforcement authorities. The practice of the immigrant sanctuary arose in churches in the 1980s and returned in the 2000s among subnational governments in response to new federal perspectives on domestic security. Immigration scholars have explained contemporary immigrant sanctuary policy and other subnational policies benefitting immigrants as "pro-immigrant" and as a function of Democratic partisan ideology. In analyzing immigrant sanctuary policies in the Homeland Security era, I find that the contemporary sanctuary phenomenon grew in significant part from a desire among state and local jurisdictions to maintain autonomy in crime governance and, similarly, a political sentiment against expansive federal government power. I find this sentiment to be trans-partisan, aligned with philosophies of decentralized governance, and distinct from the politics of immigration. Black Police and Black Power: Ethnic Identification Among African-American Police in Washington, D.C., and Oakland, CA (submitted to American Journal of Cultural Sociology )(peer reviewed). The study advances an emerging literature on African American intra-ethnic distinction and inequality by examining the phenomenon in the context of policing. Data from the study derive from in-depth interviews with African American police officers in Oakland, California, and Washington, D.C. two cities with substantial African American authority in the police department and in local government. I find that the African American officers interviewed in the study situate themselves within "ethnic mobility narratives in which their work in the criminal justice system furthers African American group interests. The narratives conceptualize the African American community in inclusive or exclusive terms either as a single, cohesive group subject to unfair and abusive police practices, or as a fractured group split between disorderly male youth and victimized women, children, and elders. The findings lend support to extant research on the malleability of ethnic solidarity as well as socio-legal scholarship investigating ethnic diversity as a promising avenue toward police reform. WORKS IN PROGRESS The American Sanctuary: Where Combative Federalism Meets Criminal Justice Reform (job talk) (to be submitted to the Journal of Criminal Law and Criminology) What is the relationship between criminal justice federalism and criminal justice reform? In light of the recent events in Ferguson, Missouri, and the uptick in Department of Justice investigations of police misconduct in local police departments, scholars increasingly look to the federal government to address the ills of the American criminal justice system. Federal officials possess a variety of tools that can be employed within the framework of criminal justice federalism to transform the culture and practices of wayward local police departments and make these departments more accountable to local communities a reform model identified as a form of cooperative federalism. But this strategy of criminal justice reform within the framework of criminal justice federalism is deeply ironic. A significant portion of the penal expansion in the U.S. over the past 60 years can be traced to the federal government itself. Moreover, the practice of combative federalism by state and local governments specifically, abstinence from rather than acquiescence to federal penal projects has been instrumental in limiting the scope of punishment in the United States. This article identifies the state and local jurisdictions that adopt a combative disposition to penal projects led by the federal government as penal sanctuaries. As a socio-legal concept, the sanctuary model serves to illustrate the manner in which state and local governments a) abstain from federal enforcement initiatives within the field of crime governance, b) insulate their citizens from punishment, and c) engage in alternative risk stagings, in which federal claims about crime and disorder can be tested against the social realities that manifest within the sanctuary jurisdiction. The article outlines the characteristics of the penal sanctuary through three cases: the Prohibition sanctuaries of the 1920s and 30s, and the immigration and marijuana enforcement sanctuaries of the contemporary era. Each case reveals combative federalism as a critical socio-legal mechanism for fundamental criminal justice reform. PAGE 3 OF 8 GARDNER
The Alchemy of Race and Risk in a Federalist Society In the posthumous publication of The Collapse of Criminal Justice, law professor William Stuntz argues that two large-scale migrations that of Irish, Italian, and Jewish immigrants between 1860 and 1910, and of African- Americans from the South to the North between 1940 and 1960 corresponded with a dramatic expansion in federal government authority over state and local crime governance. Panic over the growing cultural influence of European immigrants in America s large cities triggered the Prohibition movement. The movement culminated in the ratification of the 18 th Amendment, which gave the federal government and the states concurrent power to enforce the nation-wide ban on alcohol production and distribution. Prior to Prohibition, the federal role in criminal enforcement was negligible. Thirty years after Prohibition, in the heat of the Civil Rights Movement and at the tail end of the Great Migration of African-Americans to northern cities, the federal government for the first time allocated federal funds to be used as incentive for states to reform the structure of subnational systems of crime governance in accordance with federal prescriptions. This reformation project came to be known as the War on Crime. Though Stuntz s ethnic migration thesis is both enlightening and pertinent to the social science literature, it has not yet been subject to systematic empirical analysis. In Collapse, Stuntz does not offer a rigorous comparison of the theorized causal mechanism in the Prohibition and War on Crime cases, nor does he account for an important analog in the contemporary context the expansion of federal authority over subnational crime governance in the context of Homeland Security. I develop Stuntz s thesis through systematic sociological analysis. I first add Homeland Security as a third stage of federal expansion following Prohibition and the War on Crime. Similar to these earlier stages, the Homeland Security model represents a fundamental structural change in federal authority over subnational crime governance. In 1996, the federal government took the unprecedented step of permitting police and jail and prison employees to serve on the frontlines of immigration enforcement administration. The Department of Homeland Security utilized this law in 2002, when it established immigration partnerships with state and local police through its subsidiary, the Immigration and Customs Enforcement Agency (ICE). In advancing Stuntz s thesis, I look to incorporate a rigorous analysis of race into the legal literature on criminal justice federalism, and to build upon the conflict theory of punishment in criminological theory, which posits that crime and associated social threats come to be defined in ways that secure specific power arrangements between social groups. Law and Social Inquiry Department of Justice, Office of Justice Programs PEER REVIEWER TEACHING EXPERIENCE New York University Law School (New York, NY) Fall 2014 to present. Assistant Professor/ Faculty Fellow: Developed Immigration Federalism and Community Policing as an original course for the fall of 2015. The course investigates the jurisprudence governing state and local police participation in and abstention from immigration enforcement, and the ramifications for the structure and quality of subnational crime governance. UC Berkeley, Center for Ethnographic Research (Berkeley, CA) Summer 2011, Summer 2012. Graduate Student Instructor: Served as one of two primary instructors for the Center for Ethnographic Research Summer Internship Program. The program provides ethnographic methodological training to outstanding undergraduates from across the country. UC Berkeley, Legal Studies Department (Berkeley, CA) Summer 2009, Summer 2010. Graduate Student Instructor: Served as graduate instructor for the course, Policing and Society. The course explored a variety of law enforcement topics including contemporary state surveillance, urban policing strategy, and the history of the police institution in the United States. Responsibilities included lecture, facilitation of class discussion, and PAGE 4 OF 8 GARDNER
management of course logistics and grading. Patten University at San Quentin (San Quentin, CA) Summer 2007. Graduate Student Instructor: Served as co-instructor of an introductory college course in sociology for inmates at the San Quentin Corrections Facility. Harvard Trial Advocacy Workshop (Cambridge, MA) Winter 2003. Teaching Assistant: Assisted legal practitioners in conducting various trial advocacy workshops for second and third-year law students. RESEARCH EXPERIENCE Professor Sandra Smith, UC Berkeley Department of Sociology (Berkeley, CA) Fall 2012. Research Assistant: Drafted a series of memoranda on partnerships between the federal government and local non-profit foundations that provide seed funding to low-income urban entrepreneurs. Professor Franklin Zimring, Berkeley Law School (Berkeley, CA) Summer 2012. Research Assistant: Conducted primary research on the National Commission on Law Observance and Enforcement - an organization that assessed the viability of Prohibition enforcement in the 1920s. Goldman School of Public Policy, UC Berkeley (Berkeley, CA) Spring 2012. Research Assistant: Drafted policy brief outlining prospective government interventions into the building-energy retrofit market. Chief Justice Earl Warren Institute on Law and Social Policy, Berkeley Law School (Berkeley, CA) Fall 2008 to Fall 2009. Research Assistant: Led a quantitative inquiry into the effect of the Department of Homeland Security s Criminal Alien Program (CAP) on the rate of Hispanic arrests for minor criminal offenses in Irving, Texas. Harvard Kennedy School (Cambridge, MA) Summer 2007. Research Assistant: Conducted qualitative interviews of African-American city officials in Oakland, California, in support of a nationwide study examining relationships between African-American and Latino city leaders. Harvard BlackLetter Law Journal (Cambridge, MA) Fall 2002 to Spring 2003. Co-Editor-in-Chief: Managed all aspects of the production of the 19 th volume of the Harvard BlackLetter Law Journal including article solicitation, article acceptance, editing, and publication. PROFESSIONAL EXPERIENCE The Public Defender Service for the District of Columbia (PDS) (Washington, DC) Fall 2003 to Fall 2006. Staff Attorney: Litigated criminal cases from arraignment to disposition in the Juvenile and General Felony divisions of PDS from 2003 to 2006. Served as lead counsel in three jury trials and six bench trials. Served as junior counsel in homicide cases at the juvenile and adult levels. Led negotiations with the United States Attorney s Office for various client matters including plea negotiation, discovery, and pre-trial release. Managed all aspects of witness preparation. Served as a member of the PDS Hiring Committee in 2005. Alston and Bird, LLP (Washington, DC) Summer 2002. Summer Associate: Wrote legal memoranda on a variety of corporate regulatory issues including environmental protection, telecommunications, and corporate finance. The Public Defender Service for the District of Columbia (PDS) (Washington, DC) Summer 2001. Law Clerk: Assisted staff attorneys at the Felony I level in all aspects of criminal defense litigation. PAGE 5 OF 8 GARDNER
NAACP Legal Defense and Educational Fund (LDF) (New York, New York) Fall 1999 to Fall 2000. Paralegal: Performed data analysis to assess racially polarized school districts and university admissions practices. Drafted reports based on transcripts from state congressional meetings and LDF civil depositions. Conducted preliminary research to support the filing of civil rights lawsuits. SCHOLARSHIPS, HONORS, AND AWARDS Herbert Blumer Prize (UC Berkeley, Department of Sociology) May 2012 Allan Sharlin Memorial Award (UC Berkeley, Institute of International Studies) May 2012 Mike Synar Graduate Research Fellowship (UC Berkeley Institute of Governmental Studies) January 2012 Horowitz Foundation for Social Policy, Research Grant May 2011 UC Berkeley Empirical Legal Studies Fellowship May 2011 UC Berkeley Dean s Normative Time Fellowship May 2011 Youth Violence Prevention Graduate Fellowship (UC Berkeley Institute for the Study of Societal Issues) May 2009 UC Berkeley Center for Race and Gender, Graduate Research Grant April 2008 Crime Statistics Scholarship (University of Michigan Interuniversity Consortium for Political and Social Research) March 2008 Travel Grant (Prison University Project) August 2007 National Science Foundation Graduate Research Fellowship March 2007 Chancellor s Humanities Fellowship (University of California) April 2006 Harvard Heyman Federal Service Fellowship May 2003 SELECTED PRESENTATIONS The American Sanctuary Where Combative Federalism Meets Criminal Justice Reform, Paper presented at the 2015 Culp Colloquium at Duke Law School. Summer 2015. Immigrant Sanctuary and the Return of Federalist Penology Paper presented at the 2015 Law and Society Annual Meeting in Seattle, Washington. Summer 2015. Promoting Police Transparency in Excessive Force Cases, Remarks offered at the Institute of Judicial Administration Public Policy Series at New York University Law School. Spring 2015. A Conversation on Police and Community Relations, Remarks offered at White & Case, LLP, in New York, NY. Spring 2015. Immigrant Sanctuary as Collective Enforcement-Noncooperation: Rethinking the Consequences of Illegitimacy in Criminal Administration. Paper presented at the 2013 Annual Meeting of the American Sociological Association in New York, New York. Immigrant Sanctuary as Collective Enforcement-Noncooperation: Rethinking the Consequences of Illegitimacy in Criminal Administration. Paper presented at the 2013 Law and Society Annual Meeting in Boston, Massachusetts. Federalism and the American Penal State. Paper accepted for presentation at the 2012 Annual Conference of the Social Science History Association. Federalism and the American Penal State. Paper presented at the 2012 Annual Meeting of the American Sociological Association in Denver, Colorado. PAGE 6 OF 8 GARDNER
Thematic Session on Race and Racial Justice. Presider. 2012 Annual Meeting of the American Sociological Association in Denver, Colorado. Policing a Nation: Federalist Governance and Criminal Administration in America. Paper presented at the 2012 Annual Meeting of the American Society of Criminology in Washington, DC. District of Columbia Bar Association The New York Academy of Sciences PROFESSIONAL ASSOCIATIONS REFERENCES PRIMARY REFERENCES Jonathan Simon Adrian A. Kragen Professor of Law Berkeley Law School 215 Boalt Hall Berkeley, CA 94720 jsimon@law.berkeley.edu (510) 643-5169 Bernard E. Harcourt Isidor and Seville Sulzbacher Professor of Law and Director, Columbia Center for Contemporary Critical Thought Columbia Law School 1111 E. 60th St., Room 525 Chicago, IL 60637 harcourt@chicago.edu (773) 834-4068 David A. Sklansky Professor of Law Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305 sklansky@stanford.edu (650) 497-6580 Calvin Morrill Professor of Law; Associate Dean, Jurisprudence and Social Policy Program University of California, Berkeley 215 Boalt Hall Berkeley, CA 94720 cmorrill@law.berkeley.edu (510) 643-8988 Margaret Weir PAGE 7 OF 8 GARDNER
Professor of Political Science and Sociology (Dissertation Chair) University of California, Berkeley 4588 Barrows Hall Berkeley, CA 94720 mweir@berkeley.edu (510) 643-1602 SECONDARY REFERENCES Catherine Albiston Professor of Law University of California, Berkeley 215 Boalt Hall Berkeley, CA 94720 calbiston@law.berkeley.edu (510) 642-0493 Roger Anthony Fairfax Associate Dean of Public Engagement; Professor of Law The George Washington University Law School 2000 H Street, N.W. Washington, DC 20052 rfairfax@law.gwu.edu (202) 9943377 Eleanor Marie Brown Associate Professor of Law The George Washington University Law School 2000 H Street, N.W. Washington, DC 20052 embrown@law.gwu.edu (202) 994-4648 PAGE 8 OF 8 GARDNER