Wednesday, October 1, 2014
Yesterday in The Atlantic Professor Dawinder Sidhu examined Holt v. Hobbs, a First Amendment religious freedom case scheduled for oral argument before SCOTUS early next week. Principally, Sidhu questions whether SCOTUS will extend the same broad protection for religious belief it employed earlier this year in Burwell v. Hobby Lobby to the claims of a less sympathetic group – federal prisoners. He sets it up this way:
Religious freedom in the United States has ebbed and flowed between two competing concepts: the principled view that religion is a matter of individual conscience that cannot be invaded by the government, and the practical concern once expressed by Justice Antonin Scalia that accommodating all religious practices in our diverse society would be “courting anarchy.” In June, the Supreme Court ruled in Burwell v. Hobby Lobby that closely held corporations, whose owners objected to contraception on account of sincere Christian beliefs, could not be forced by the Affordable Care Act to include certain contraceptives in their employee insurance plans. In supporting the religious rights of business owners over a national health-care policy predicated on broad participation, the Roberts Court seemed to stake its place on the more protective end of the religious-freedom spectrum.
But the idea that Hobby Lobby creates robust protections will be credible only if the justices are willing to recognize the religious freedom of marginalized religious minorities—not just the Judeo-Christian tradition. The next religious-freedom case to come before the Court, Holt v. Hobbs, will test whether the Roberts Court’s stance on religious freedom includes a minority faith, Islam, practiced by a disfavored member of our society: a prisoner. At stake are both the state of religious freedom in the country and the Court’s reputation.
Holt involves Gregory Holt, an inmate in Arkansas also known as Abdul Maalik Muhammad. A dispute arose between Holt and the state’s Department of Correction when he sought to grow a one-half-inch beard in observance of his faith. According to the department’s grooming policies, inmates may only grow a “neatly trimmed mustache.” In 2011, Holt filed a lawsuit against the director of the department, Ray Hobbs, and other state employees, saying that the prison had violated his religious rights. After decisions by federal trial and appeals courts in favor of the department, Holt filed a hand-written petition to the Supreme Court, which agreed to review the case. The justices are scheduled to hear arguments in Holt on October 7.
This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.
This article examines the role of US real estate agents in redlining, reverse redlining, and greenlining practices. Redlining was the practice of the Federal government, private banks, and other institutions to deny credit to neighborhoods based on race. Reverse redlining is marketing inferior credit and other products to those same neighborhoods. Greenlining is incenting investment in previously redlined neighborhoods. This article argues that although many real estate agents used practices that unjustly excluded access to neighborhoods, all can be faithful agents of inclusion to global, flourishing communities. That is, while real estate agents took leading roles in redlining and reverse redlining in the past, they can now lead in greenlining efforts. Moreover, those who want to effect greater access to global flourishing communities should consider becoming real estate agents.
The Salt Lake Tribune's Tom Harvey reports the circumstances that led the Equal Employment Opportunity Commission to allege the franchise violated both the Americans with Disabilities Act and the Civil Rights Act:
Scott Bonn, who has Down Syndrome, began working at the Farmington restaurant in September of 2011 folding boxes, a task he was able to do with a job coach who was independently employed and insured to assist him, according to the lawsuit filed last week in U.S. District Court for Utah.
Bonn successfully did the job until a partner in the business visited the store, observed Bonn working with the job coach and then moved to have him fired.
The firing violates federal laws that require employers to provide "reasonable accommodations" such as a job coach to persons with disabilities and that the firing violated those laws, the lawsuit alleges.
Texas's prisoner barbecue just one of many routine Eighth Amendment violations taking place behind prison walls
Yesterday I noted several prisoners in Texas allege that extreme temperatures inside the state's prisons violate their Eighth Amendment prohibition on cruel and unusual punishment. Because of their confinement, the prisoners can't readily alleviate the symptoms of long term exposure to the heat without help -- they have limited access to water, few fans, and usually can't open the windows in their cells. The temperatures are especially threatening to the aging prison population, and inmates taking certain medications are also vulnerable. Several of the state's prisoners have died, and now a hearing by an arm of the Organization of American States is scheduled to review these prisons' conditions.
In an op-ed in today's Los Angeles Times, renowned attorney Martin Garbus argues that the Eighth Amendment is routinely violated in prisons throughout the country. That is, Texas is not alone. Garbus writes:
As a litigator and constitutional lawyer, I have heard appalling stories from the nation's prisons and jails. One prisoner described to me how he was handcuffed to the bottom of his bunk in his underwear day after day for months. Another described how his cell was located directly beneath broken toilet pipes, which meant the cell smelled horribly of urine and excrement. I've heard how cells are unbearably hot or cold and how four prisoners are confined to spaces intended for two, with only one set of bunk beds. I've heard about showers that produce only scalding or icy water and about how, when cell toilets overflow, staff are in no hurry to fix them or to clean up.
The health risks in prisons are also unacceptable. MRSA, a bacterial infection whose strains are often resistant to antibiotics, now runs through maximum security prisons. I contracted it myself after visiting such a prison in June and was hospitalized for three days. Sexual assaults and sexual activity are well known to occur in prisons, but prisoners rarely have access to protection, such as condoms, that can help prevent sexually transmitted diseases.
And then there is solitary confinement. It is hard to tell exactly how many prisoners are in solitary each year in the United States. Today, 44 states allow it, but many states do not report how many inmates are held in solitary. A 2005 report from the Vera Institute of Justice estimated the number at 81,622.
Tuesday, September 30, 2014
This paper describes a new model of the relationship between racial ascriptions on an individual level, private racial bias, social disadvantage, and state action, called the cognitive hierarchical model. As the name suggests, it deploys psychological, sociological, and historical evidence to argue that racial hierarchy in the wider culture leaks into our individual cognitions, and vice versa. Status evaluations turn out to be built deep into our racial perceptions.
The state, for its part, exercises a continuing influence on that culture and the cognitions it generates; this gives rise to new grounds for constitutional challenge to state complicity in racial hierarchy. To be ascribed a stigmatized racial identity is to be subject to continuing harm, which this paper calls ascriptive injury. This paper ultimately argues that the state, by participating in the continual creation and reinscription of stigmatized racial identities, causes such ascriptive injuries, and argues for a constitutional remedy.
ICYMI: George Zimmerman allegedly threatened to kill another driver while stopped at a traffic light, then followed him for two days
At the National Conference of State Legislatures blog, Wendy Underhill breaks down the election laws that will appear on state ballots this November.
The title of this post comes from this press release from the University of Texas School of Law's Human Rights Clinic announcing the October 27, 2014 hearing before the Inter-American Comission on Human Rights in Washington D.C. on the extreme heat inside Texas prisons.
Earlier this year, the Texas Civil Rights Project filed a lawsuit against the Texas Department of Criminal Justice (DCJ) on behalf of prisoners in Texas claiming that temperatures inside the state's prisons violate the prisoners' Eighth Amendment rights. CNN's Emma Lacy-Bordeaux reported at the time:
The lawsuit, broadly concerned about the lack of air conditioning across state facilities, centers on a facility in Navasota, Texas, known as the Wallace Pack Unit. Located about 70 miles northwest of Houston, the facility houses about 1,400 men. As of January, the compliant said, 114 men over the age of 70 were housed there. They have no air conditioning, and the windows which do open provide little relief, the suit claims, leading to temperatures inside that often exceed those outside.
The lawsuit alleges some 20 deaths since 1998 and details names, ages and internal body temperatures of the victims, including cases where the body temperature recorded was well over 100 degrees. One man, 45-year-old Rodney Adams, died one day after his arrival. His internal temperature registered 109.9.
Indeed, temperatures in Texas prisons often exceeded 100 degrees, a condition that affects prison staff as well as inmates. Exposure to such extreme temperatures can be particularly dangerous for elderly imates and those with specific health conditions. As NPR's Alisa Roth stated:
[T]he number of inmates prone to this sensitivity has been growing; the elderly prison population has been increasing for years, and people with mental illness make up a disproportionate percentage of inmates in the U.S.
And at least 14 prisoners reportedly have died because of heat related illnesses since 2007.
The DCJ's efforts to alleviate the effects of the heat have been few. It has added a few large fans to several of its prisons, but it doesn't appear to have otherwise substantively addressed the issue. The New York Times's Manny Fernandez reported:
A Texas law requires county jails to maintain temperature levels between 65 and 85 degrees, but the law does not apply to state prisons. The American Correctional Association recommends that temperature and humidity be mechanically raised or lowered to acceptable levels.
A prison agency spokesman, Jason Clark, said that many prison units were built before air-conditioning was commonly installed, and that many others built later in the 1980s and 1990s did not include air-conditioning because of the additional construction, maintenance and utility costs. Retrofitting prisons with air-conditioning would be extremely expensive, he said.
As a result, the agency takes a number of steps to assist inmates, Mr. Clark said, and he disputed the criticisms of inmates and their lawyers about inadequate fans, water and ventilation. On hot summer days, he said, prison officials restrict outside activity, provide frequent water breaks, allow additional showers, permit inmates to wear shorts and increase airflow by using blowers normally used to move warm air in the winter.
(h/t Grits for Breakfast)
Monday, September 29, 2014
Jennifer Jones publishes a newspaper, has run for state office, and just loves dogs. For fun, she likes to sue officials of the town in which she lives - Quartsite, Arizona. She's a troublemaker, but her latest legal foray might actually have some merit. As The Courthouse News Service reports:
Known for its huge outdoor swap meets and gem shows, and as a haven for "snowbirds" in motor homes, the Sonoran desert town of about 3,500 residents entices some 2 million visitors every winter, when the summer's triple-digit temperatures dip down to the 70s.
The crowds were long gone at a town council meeting in June 2011 when Jones received a nod from Mayor Ed Foster to speak during the public-comment portion. About a minute into her criticism of the board, then-councilman Joe Winslow interrupted and made an oral motion to have her ejected for an "unidentified procedural violation." Claiming that a majority of council members supported the motion, Winslow told Jones to leave or be escorted out by police.
Jones said then-Police Chief Jeffrey Gilbert and police officers Fabiola Garcia and Rick Paterson moved toward her, grabbed the microphone out of her hand and forcibly ejected her from the meeting. She was then arrested for disorderly conduct but the charges were later dropped.
Jones sued Quartzsite, Winslow, Gilbert, Garcia, Paterson and others in 2012, but U.S. District Judge James Teilborg ruled found Wednesday that only her First Amendment claim will go forward.
"Even if defendants acted solely to cure plaintiff's unidentified procedural violation, defendants' actions may have run afoul of applicable law because plaintiff alleges that she was speaking peacefully about a matter of town-importance after being duly recognized to speak by the moderator of the meeting," Teilborg wrote.
Ferguson police officers seen wearing 'I am Darren Wilson' wristbands in show of solidarity with officer who killed 18-year-old Michael Brown
David Savage reported in today's Los Angeles Times:
The justices will meet Monday to consider a thick pile of pending appeals, and they have before them gay-marriage cases from five states. In all five, the ban on same-sex marriages was struck down. But unlike most appeals, both sides — the winners as well as the losers — are asking justices to hear the case.
"It's a near certainty the court will decide it this term and definitively answer" whether same-sex marriage is a constitutional right, said Irv Gornstein, a law professor who directs Georgetown's Supreme Court Institute.
Gay-rights advocates who once steered clear of the high court are now eager for a ruling. "There is no question we are winning, but winning is not won," said Evan Wolfson, founder of Freedom to Marry. "It's time for the Supreme Court to finish the job."
First, the justices have to settle on which case, or cases, they will hear, and that may take a few weeks. They could hear cases from Utah, Oklahoma, Virginia, Wisconsin or Indiana. In all but Virginia, the state's top lawyers are fighting to uphold laws banning same-sex marriage.
But state attorneys in four Republican-led states say they are determined to offer the Supreme Court a robust defense of their state laws. They noted that their voters, as well as their lawmakers, had adopted measures in the last decade to define marriage as the union of a man and a woman. They sought to prevent "judicial activism" by defining marriage in the state constitution, said Wisconsin Atty. Gen. J.B. Van Hollen, in a court filing.
At least according to one survey. BuzzFeed's Adam Serwer reports:
A slim majority of whites, 51%, now said they believe the criminal justice system is biased — a smaller percentage than blacks (84%) and Latinos (60%) who said it is, according to the survey.
Majorities identifying as Republicans, tea party members, and and the elderly said they see the criminal justice system as fair, according to the survey. Fifty-seven percent of Republicans and 58% of tea party members said they believe the criminal justice system does not discriminate on the basis of race.
Perceptions about the criminal justice system aside, however, Americans’ perceptions of race and discrimination more broadly break down along racial lines. About as many white Americans who said they think the criminal justice system is racially biased against minorities also believe that anti-white discrimination is as big a problem as discrimination against minorities.
Fifty-two percent of white Americans believe that “discrimination against white Americans has become as big a problem as discrimination against black Americans and other minorities, compared to 35% of Hispanics and 29% of black Americans,” according to the survey. Sixty-one percent of Republicans and 73% of tea party members said discrimination against whites is as big a problem as discrimination against blacks — compared to only 32% of Democrats and 47% of Independents.
Thursday, September 25, 2014
Several jurisdictions in the United States (e.g., Florida and Washington) have recently incorporated the status of “homeless” under the protection of hate crime legislation. This was largely promoted by new data and reports by the National Coalition for the Homeless urging added protection for the homeless. The issue of whether the homeless belong under hate crime provisions raises the following question: What criteria must a group meet to be eligible for its inclusion? What similarities do the homeless have with other protected groups? Finally, what implications does the recognition of economic status have on other economic groups, particularity the top wealthy 1%? In this article, I explore some of the issues raised by including the homeless as a protected group. I survey several rationales offered for the selection of protected characteristics. I argue that the rationales currently offered suffer from descriptive inadequacy by either being under- or over-inclusive. I turn instead to the political conception of “disadvantage” for an identity marker that better explains the link between the various protected groups and identities under hate crime legislation. Moreover, the use of disadvantage allows for the inclusion of the homeless without the need for incorporating other socio-economic identities.
Eric Holder Jr. is expected today to announce his resignation from the U.S. Department of Justice, where he has served since 2009 as the country's first African American attorney general, the White House said. The president is set to speak this afternoon about Holder's resignation.
Holder has long said he did not intend to serve the entirety of President Barack Obama's second term in the White House. Holder in 2012 said "it's been an interesting and tough four years" and that he would ask himself "Do I think that there are things that I still want to do. Do I have gas left in the tank?" NPR first reported the news of Holder's resignation.
Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the legality of the Stop and Frisk policing regime in New York. Under this regime, police record the bases of suspicion using both a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion.
Evidence from 4.4 million stops provide an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops and identify narratives of suspicion that justify their actions beyond the idiosyncrasies of the individual case. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in caselaw governing Fourth Amendment stops.
Wednesday, September 24, 2014
On average, least educated white families still wealthier than most educated black and hispanic families
[W]hite families are much wealthier than black and hispanic families at every education level. More than that, all white families, even those at the lowest education level, have a higher median wealth than all black and hispanic families, even those at the highest education level. The median white family with an education level below high school has a net worth of $51.3k, while the median black and hispanic family with a college degree has a net worth of $25.9k and $41k respectively.
"Digital Security in the Expository Society: Spectacle, Surveillance, and Exhibition in the Neoliberal Age of Big Data"
In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. We have here a completely different structure where men who are placed next to each other on a flat surface will be surveilled from above by someone who will become a kind of universal eye.”
What should we make of those archetypes today? Do they help us better understand our neoliberal digital condition of data collection, mining, and profiling by corporate giants such as Google and Facebook, and the NSA? With neoliberalism and digitization — in the age of digital security — I suggest, we have gone beyond both spectacle and surveillance to a new form: one that is captured best by the idea of exposition or exhibition. Guy Debord spoke of “the society of the spectacle,” Foucault drew our attention instead to “the punitive society,” but it seems as if, today, we live in the expository society. This essay offers an architectural schema to better understand our contemporary distributions of power, one that focuses on the themed space of consumption. It then actualizes the metaphor by exploring one particular manifestation of a fully-digitized themed space, and asks how we have come to embrace and love these new forms of exhibition today.
Monday, September 22, 2014
This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.