Friday, May 20, 2016
SCOTUS ruled yesterday that convicted criminals' Sixth Amendment right to a speedy trial is not violated by lengthy sentencing delays. As The New York Times's Adam Liptak reports:
The case, Betterman v. Montana, No. 14-1457, concerned Brandon T. Betterman, who pleaded guilty to jumping bail in the spring of 2012. He spent the next 14 months in a Montana jail waiting to hear what his sentence would be.
He complained to the judge, saying the delay had put him on an “emotional roller coaster due to the anxiety and depression caused by the uncertainty.” In the summer of 2013, the judge finally sentenced him to seven years in prison, with four years suspended.
The long delay, Mr. Betterman said, had violated his Sixth Amendment right to a speedy trial.
Justice Ruth Bader Ginsburg, writing for the court, rejected the argument. There is a difference between trials, which adjudicate guilt, and sentencings, which determine punishment, she wrote.
“As a measure protecting the presumptively innocent, the speedy trial right — like other similarly aimed measures — loses force upon conviction,” Justice Ginsburg said...
Nor did it matter, she wrote, that a vast majority of criminal prosecutions these days end with guilty pleas rather than trials, making sentencing proceedings more important. That “modern reality,” she wrote, “does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause.”
Notably, Justice Ginsburg added that sentencing delays might be challenged as violations of due process. However, because Betterman did not make such an argument, the Court declined to rule on the issue.
The full opinion is available here.
Tuesday, May 10, 2016
This article surveys three previously unconnected areas of analysis related to internal discipline in U.S. prisons: implicit bias, prison disciplinary rules, and judicial deference to correctional decisions. It traces the possible connections from the statistical evidence on the significance of race to the potential impact of race on prison disciplinary decisions and to the legal validation of these racial norms through judicial deference. In so doing, this Article hopes to begin a dialogue that identifies several entry points for discussing the ramifications of race within correctional facilities.
Part I of this Article discusses how implicit bias could affect prison decision-making. Given the lack of modern psychological studies of correctional officials and implicit bias, this section draws on studies of implicit bias in the population at large as well as implicit bias in the criminal justice system. Part II discusses how courts may facilitate the influence of implicit race bias by requiring discriminatory intent, even in penal facilities where circumstances would favor allowing implicit bias claims. Part III examines the legal standards governing judicial review of prison disciplinary rules and decisions and concludes that judicial deference may validate the improper influence of race on prison-staff decision-making.
Monday, May 9, 2016
Gov. Pat McCrory (R-NC) filed a lawsuit in federal court today requesting clarification as to whether the anti-transgender law he signed earlier this year violates federal civil rights law, as DOJ claims. The Charlotte Observer's Michael Gordon reports:
The governor has a Monday deadline to respond to the Justice Department’s discrimination claim. Instead, McCrory’s attorneys sued the U.S. Justice Department in federal court, seeking a court to overturn federal prosecutor’s assertion last week that HB2 violates Title IX of the Civil Rights Act as well as the Violence Against Women Act...
In a statement issued Monday following the filing of his lawsuit, McCrory, who’s in a tough re-election fight, accused the administration of President Barack Obama of making up federal law in finding HB2 discriminatory. He has said that HB2 is a commonsense law makes bathrooms safer for women and children
“The Obama administration is bypassing Congress by attempting to rewrite the law and set restroom policies for public and private employers across the country, not just North Carolina,” the Charlotte Republican said. “This is now a national issue that applies to every state and it needs to be resolved at the federal level. They are now telling every government agency and every company that employs more than 15 people that men should be allowed to use a women’s locker room, restroom or shower facility.”
Known as H.B. 2, the law seeks to preempt a City of Charlotte ordinance allowing transgender individuals to use the bathroom corresponding to their gender identity. H.B. 2 would require transgender individuals to use the bathroom corresponding to the sex indicated on their birth certificates.
Last week, DOJ sent the governor a letter stating that implementation of H.B. 2 could cost the state billions in federal funding.
The law has already cost the state jobs.
- "Obama plans new push for transgender rights in schools"
- DOJ tells N.C. governor anti-transgender bill could cost state billions in federal education funding
Saturday, May 7, 2016
When DOJ sent a letter to North Carolina Gov. Pat McCrory informing him that the state's anti-transgender law could cost the state billions in federal education funding, some experts saw the move--in conjunction with the EEOC's issuance of a fact sheet confirming that it's a violation of federal civil rights law to deny a transgender individual access to the restroom that corresponds with his/her gender identity--as a more focused effort by the Obama administration to secure greater protections for transgender people. The argument proved poignant. As Caitlin Emma reports in this recent Politico article from which the title of this post comes:
The divisive and politically combustible issue of bathroom access for transgender individuals is about to become further inflamed, as the Obama administration is expected in coming weeks to aggressively reinforce its position that transgender student rights are fully protected under federal law, sources told POLITICO.
With the Justice Department already locking horns with North Carolina over the state’s so-called bathroom bill, the administration plans to reaffirm its view that robust protections for transgender students are within the existing scope of Title IX, a federal law that prohibits sex-based discrimination in federally funded education programs and activities. Multiple agencies are expected to be involved.
It’s a step LGBT advocates have wanted the federal government to take for years. The legal protections include providing transgender students with not just access to bathrooms and locker rooms that align with their gender identity but also affording them protections from bullying, harassment and sexual violence, and a right to privacy concerning their transgender status and transition...
Advocates and legal experts say that Title IX’s lack of clarity could get wrapped up with a host of other legal issues, like the constitutional right to privacy and varying policies at every level of government, and result in transgender rights landing in some capacity before the nation’s highest court — just like what happened in the lead-up to the Supreme Court’s historic gay marriage verdict.
New guidance on Title IX represents a natural outgrowth of the administration’s aggressive agenda on gender equity and civil rights. In April 2014, guidance issued by the Education Department on sexual violence explicitly mentioned that transgender students are protected under Title IX. LGBT advocates saw it as an important moment for the transgender community, but have wanted the administration to go even further in clarifying the law.
Additional guidance will likely raise the ire of many Republicans in Congress, however. Some lawmakers, like Senate HELP Chairman Lamar Alexander (R-Tenn.), have already slammed the administration for federal overreach...
Lower courts have been divided on the issue. A federal district court last year ruled against Gavin Grimm, a transgender male student in Virginia whose attorneys argued that it was his right under Title IX to use the boy’s bathroom at his high school. A federal appeals court overturned that district court’s ruling earlier this year, representing a major legal victory for Grimm and LGBT advocates. The school board is appealing the ruling.
While the appellate court’s decision was a victory, it didn’t explicitly say that the Obama administration’s interpretation of Title IX is the right one. The two-judge majority came close, however, saying the lower court should have deferred to the administration’s guidance on the issue...
If other federal appellate courts show they’re divided, it will likely catch the Supreme Court’s attention, said David Cohen, a law professor at Drexel University.
For more on the battle over North Carolina's law, see here.
Friday, May 6, 2016
This question was inspired by this Atlantic article by Juleyka Lantigua-Williams, titled When a Classmate Is a Former Inmate, discussing how institutions of higher learning have created barriers to education for people with criminal backgrounds. While administrators' concern for their campuses' safety is commendable, some university policies do not appear to serve the purpose for which they were intended--and, in fact, may not even address an actual threat.
These days, American colleges are eager to boast about their number of women enrollees, their percentage of ethnic minorities, even their ratio of low-income students. They’re very proud of their inclusiveness and outreach. But many colleges are mum when it comes to the students on their campuses with criminal records.
To be fair, it’s a very delicate issue, one that requires reassuring students and parents that safety has not been compromised while also ensuring that some students with records are not singled out or treated differently. Finding that balance has proved elusive for some colleges, but others have successfully untangled the complexities created by this increasingly common phenomenon. At hundreds of colleges, students have to disclose any criminal history during the admissions process and may be prescreened by a special committee... At some schools, a formerly incarcerated student’s movements on campus and his or her access to facilities may be restricted. At a number of colleges and universities, students who have committed certain crimes may be jointly monitored by campus authorities and state officials. The measures are set up based on state requirements, school policy, and the institution’s comfort level.
But, in some instances, there are situations that are entirely out of a school’s control. Students with criminal records who want to apply for certain professional programs often hit dead-ends. “People are not rejected solely based on having a criminal record but can end up being excluded from certain academic programs that do not allow those with criminal histories to work in the field,” said Jason Ebbeling, executive director of the Student Success Center at Connecticut State Colleges & Universities. Due to licensure requirements or clinical-rotation guidelines, future teachers, nurses, and others who might work in sensitive areas are not allowed to have past criminal histories.
“Why is someone in a classroom with a record more dangerous than someone sitting next to me in a movie theater or a restaurant?” asked Barmak Nassirian during my conversation with him. Nassirian has worked in higher education for 25 years and is the director of policy analysis at the American Association of State Colleges and Universities. “People do have a responsibility for maintaining safe campuses, I don’t dismiss that.” But he fervently opposes asking students to divulge the information, considering it as part of admissions, and subsequently monitoring students once on campus. “We essentially condemn people to a life of underemployment and poverty if we deny them the one medicine that actually cures criminal behavior: education.”...
College administrators, according to several of the experts I spoke to, try to put in place as many mechanisms and safety precautions as possible to reinforce how safe their campuses are, especially for the peace of mind of prospective families. And yet, there are no statistically valid relationships between asking about criminal histories, the ratio of such students on campus, and the incidences of campus crime. One glaring example of this is sexual assault, one of the most common campus crimes...
Educators want to welcome and serve qualified students. But they are also charged with maintaining safe and conducive atmospheres for learning. And so, for the student with a criminal background who wants an education, it can seem like there is no easy way around having a record—stigmatization now or dismissal later.