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Tuesday, September 16, 2014

"An International Legal Framework for Surveillance"

The title of this post comes from this recent paper by Professor Ashley Deeks, the abstract of which states:

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

September 16, 2014 in First Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (1)

Monday, September 15, 2014

"Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment"

The title of this post comes from this fascinating paper by Professor Mark Graber, the abstract of which states:

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.

September 15, 2014 in Civil Rights History | Permalink | Comments (1)

Federal judge says judicial role requires upholding death penalty of innocent when procedurally fair

At his blog Hercules and the Umpire, Judge Richard Kopf has this thoughtful discussion of the death penalty.

September 15, 2014 in Theories of Punishment | Permalink | Comments (2)

Friday, September 12, 2014

"Protecting Political Participation Through the Voter Qualifications Clause of Article I"

The title of this post comes from this forthcoming article by Professor Franita Tolson, the abstract of which states:

The Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution makes federal voting rights dependent upon participation in state elections. This Article argues that Article I incorporates both state constitutional law governing the right to vote and the democratic norms that existed within the states at the founding as the basis for determining the qualifications of federal electors. The democratic norms governing political participation can be traced to founding-era state constitutions that preserved the fundamental right of citizens to alter or abolish their governments at will, which was similar to the right of revolution exercised by the colonists against the British during the Revolutionary War. It is this understanding of the right to vote in federal elections, parasitic upon the robustly democratic notion of participation that existed at the state level and enshrined in state constitutional alter or abolish provisions, that the framers of the Constitution endorsed in the Voter Qualifications Clause of Article I. Contrary to this provision, the caselaw has divorced state and federal elections, resulting in excessive judicial deference to state regulations that govern the right to vote. As this Article shows, the Voter Qualifications Clause requires that states aggressively safeguard political participation in order to protect federal voting rights, which suggests that courts should apply a higher level of scrutiny in assessing the constitutionality of state election laws.

September 12, 2014 in Right to Vote | Permalink | Comments (1)

Thursday, September 11, 2014

"Colonialism and Constitutional Memory"

The title of this post comes from this intriguing essay by Professor Aziz Rana, the abstract of which states:

The United States shares a number of basic traits with various British settler societies in the non-white world. These include longstanding histories in which colonists and their descendants divided legal, political, and economic rights between insiders and subordinated outsiders, be they expropriated indigenous groups or racial minorities. But Americans rarely think of themselves as part of an imperial family of settler polities and instead generally conceive of the country as quintessentially anti-imperial and inclusive. What explains this fact and what are its political consequences? 

This essay, prepared for the Third "Law As..." Symposium, offers an initial response, arguing that a significant reason is the symbolic power of the American Federal Constitution in sustaining a particular narrative of the country as free and equal from the founding. Although this creedal narrative has played a powerful and productive role in creating a more inclusive national community, it has also, paradoxically, made it more difficult for Americans to appreciate the country’s colonial underpinnings and thus to address specific structural grievances. In developing these claims, the essay first explores how universalistic accounts of national identity and constitutional meaning began to take political hold with the country’s emergence onto the global stage following the Spanish-American War. It then analyzes the unacknowledged contemporary costs of creedal narratives by recovering a tradition of radical black critique, which viewed the dominant national identity as truncating dilemmas of race in part by deemphasizing the need for material restitution and symbolic rupture.

September 11, 2014 | Permalink | Comments (2)

Legal dispute over N.C. voting laws continues in federal court on Sept. 25

On September 25, the U.S. 4th Circuit Court of Appeals will begin oral arguments in the North Carolina voting rights case* over the restrictions the Republican-controlled legislature passed in 2013. As The Raleigh News & Observer's Anne Blythe reports:

The challengers contend that the 2013 election law overhaul discriminates against African-Americans, Latinos and voters younger than 25. They have asked the court to block provisions that end same-day registration, curb the number of days on which people can vote early, prohibit people from casting ballots out of their assigned precincts and end a popular teen preregistration program.

 

Republican leaders who shepherded the changes through the General Assembly to the desk of Gov. Pat McCrory, who signed the 2013 bill into law, argue that they are trying to ward off the potential for voter fraud, though few cases have been brought forward.

Last month, a federal judge rejected the appellant's request for a preliminary injunction against these laws, which, if approved, would have left the old laws in place through the November 2014 midterm elections. This month, the Fourth Circuit again rejected that request (here) . But, it agreed to expite their appeal.

Also, in this recent reportDemocracy North Carolina found in the last election that the new voting laws disenfranchised 454 North Carolinians whose votes would've counted before. The group writes:
 
Voters denied a chance to have their voices heard include a veteran returning from Afghanistan whose registration was incorrectly terminated while he was away; a first-time voter who registered at the DMV, but that registration didn’t reach the local board of elections; a precinct judge assigned to a precinct other than her own who couldn’t leave to vote in her home precinct; a disabled senior who was driven to a friend’s polling place on Election Day; a nurse who temporarily registered her car in a nearby county while working at its hospital for nine months; a college student who registered during a voter drive but her application was not recorded; and a new couple in town who mailed in their registration but it did not reach the county board of elections before the registration deadline.

September 11, 2014 in Election Law, Right to Vote | Permalink | Comments (1)

Missouri legislature overrides governor's veto of restrictive abortion measure

Here.

September 11, 2014 in Abortion | Permalink | Comments (1)

Missouri legislature likely to override governor's veto of 72-hour waiting period before an abortion requirement

Earlier this year Missouri Republicans passed a bill that would require any woman seeking an abortion to wait 72-hours before having it. Gov. Jay Nixon, a Democrat, vetoed the bill because it had no exception for rape or incest. But the Republican grip on the state legislature appears to have prevailed. As The Los Angeles Times's Alana Semuels reports:

Legislators in the Republican-dominated legislature say they have enough votes to override Nixon's veto...

 

If the legislature overrides the veto, Missouri will become the third state, after Utah and South Dakota, to require a 72-hour waiting period. Utah's law, passed in 2012, makes an exception for rape and incest.

September 11, 2014 in Abortion | Permalink | Comments (0)

"Protesting and Policing Boundaries: the Role of Protest in Changing Ethnic Boundaries During the Civil Rights Movement"

The title of this post comes from this recent paper, the abstract of which states:

How are ethnic boundaries altered in the wake of challenges to ethnic hierarchy? While ethnic boundaries may evolve in the longterm, I argue that in moments of rupture boundaries can change quickly. Mass incarceration and police stop-and-frisk policies evidence the fact that the security apparatus of the state can institutionalize racial and ethnic boundaries through the threat of and use of violence. In this paper, I examine how the 1966 Campaign by the Chicago Freedom Movement by Martin Luther King, Jr. and the Southern Christian Leadership Conference altered the police behavior towards, and thus the racial boundary of, the black community in American cities. I use unique data, collected in 1966, on the details of nearly 20000 police-citizen interactions in Chicago, Boston, and DC. In the midst of this data collection, the SCLC began housing demonstrations in Chicago. I exploit this coincidence to test whether the protests led the policing of black communities and the application of state power at the racial boundary, to intensify or abate. By showing how the police responded to protest against the racial status quo, this paper furthers understanding of the intersection of race and criminal law. More generally, this paper employs a strong research design and unique data on ethnic practices at the micro-level to show that the content of ethnic boundaries change quickly during social upheaval.

September 11, 2014 in Civil Rights History, First Amendment | Permalink | Comments (0)

Republican U.S. Senate candidate highlights support for same-sex marriage in new ad

That's Monica Wehby. Republican U.S. Senate candidate running against incumbent Democrat Sen. Jeff Merkley in Oregon. As The Lost Angeles Times observes, she would join an exclusive class of Republican senators who openly support same sex-marriage were she to win in November.  

U.S. Sens. Susan Collins of Maine, Mark Kirk of Illinois, Lisa Murkowski of Alaska and Rob Portman of Ohio are the only Republicans in the Senate to support same-sex marriage.

September 11, 2014 in Same-sex marriage | Permalink | Comments (0)

Poll finds only 35% of people believe government surveillance has "gone too far in restricting civil liberties"

Wednesday, September 10, 2014

"Extending Executioner Confidentiality to Lethal Injection Drug Suppliers"

The title of this post comes from this upcoming article by Professor Mary Fan, the abstract of which states:

The strategy of taking the death penalty battle to the market by ferreting out and campaigning against lethal injection drug suppliers has been wildly successful in shriveling the execution drug supply. The supply-side strategy has not halted executions, however. Rather, the unintended consequences of shrinking execution drug supply are heightened risks of harm as states resort to alternative drugs and a surge of new state secrecy laws to protect remaining supply sources. The new secrecy laws are facing a barrage of legal challenges and a circuit split on how to resolve them. Yet despite the voluminous literature on the rights and wrongs of the death penalty, there is little study of the legal question now besetting the courts regarding execution drug supplier confidentiality. This article fills the need for a study of rise and propriety of the new lethal injection supplier confidentiality laws and the role of such laws in preventing worsening harms and unintended consequences.

The article distinguishes the frequently litigated issue of execution drug supplier confidentiality from concealment of the method of execution. There is a harm prevention rationale for supplier confidentiality, to safeguard remaining licensed drug sources and reduce the need to resort to questionable backroom sources abroad or old methods of execution such as firing squads. In contrast, eleventh-hour drug substitutions lack a harm prevention justification and are far more material contributors to the rising risk of harm. The recent rise of drug supplier confidentiality laws make them a lightning rod for challenges – and unfortunately draws attention away from the real problem: secret execution protocols rather than secret suppliers.

September 10, 2014 | Permalink | Comments (0)

This portrait will hang in the California Capitol. Seriously. Yes, seriously.

There was a city council meeting last night in Ferguson, Mo.

The first since a white police officer shot and killed Michael Brown, an unarmed black teenager.

It did not go well.

September 10, 2014 | Permalink | Comments (1)

"Why More Americans Should See the Beheading Videos"

The American public must see images of violence from military engagements and terrorist attacks in which lives - even American lives - are lost, writes The Intercept's Peter Maass. Because images of dead Americans have been kept from the public, we have not yet had to fully deal with the "depravity of war." According to Maass: 

This censorship has spawned an odd blowback. By shielding us from disturbing imagery, our government (and editors who shy away from gore) may have made us all the more vulnerable when we finally see dead Americans. This is not an abstract theory. The two disastrous invasions of Falluja during the Iraq War were sparked by pictures of the bodies of four American contractors hanging from one of the town’s bridges in 2004. It wasn’t the event itself so much as the pictures that launched such destructive fury. Confronted with these stark but complicated images, we tend to respond with a primal scream, as The New York Post did with its identical headlines for both the Falluja desecrations in 2004 and the Islamic State beheadings a decade later: “Savages.”

 

In the case of the Islamic State, some of the outrage is explained by the perverse pride the killers take in distributing the evidence of their crimes. But we are on a slippery slope with this indignation, because we have our own macabre mechanism for broadcasting the deaths of our supposed enemies — Central Command recently began tweeting out links to videos of air strikes in Iraq. As human rights groups have amply documented, a large number of civilians have been killed by American drones. Many Americans look at those videos and think, Got the bad guys, job well done. How many Iraqis, Afghans, Pakistanis or Yemenis look at those same videos, remind themselves of the women and children killed, and say, What savages?

 

In the end, it is a strange twist: Instead of pushing us away from war, as the Vietnam generals feared, images of American casualties are now driving us into the vortex. Would seeing more of it really help? Instead of reasoned discussion, might there be more howls for revenge? Or might there be shrugs of seen-it-before indifference, as Susan Sontag warned in her 2002 New Yorker essay, “Looking at War?” I wish we didn’t have to ask these questions — that there were no loathsome images to flash on our screens — and I wish we didn’t have a responsibility to look and think deeply. But we do, if the depravity of war is to be understood and, hopefully, dealt with.

September 10, 2014 in First Amendment, Freedom of Press | Permalink | Comments (0)

"Everybody has this bad taste in their mouth about 'militias.' They think we're out here trying to smoke people and kill them as soon as they cross the border. Which obviously, is not the case."

New non-lethal weapon "scrambles ocular fluid and temporarily blinds victim for 10-15min"

Federal panel overturns murder conviction due to discrimination by prosecution during jury selection

The Los Angeles Times's Maura Doran reports:

The U.S. 9th Circuit Court of Appeals said Anthony Castellanos, convicted of second-degree murder for a fatally shooting a 12-year-old, deserved a new trial because the prosecutor used a “factually erroneous” reason for removing the woman.

 

During jury selection in 2005, Castellanos’ lawyer argued that the prosecution struck four prospective Latino jurors because of their ethnicity.

 

The prosecutor denied the discrimination, and the trial judge allowed the strikes. The jury that eventually convicted Castellanos had seven Latinos, four non-Latino whites and one Asian.

 

Castellanos argued on appeal that the four Latinos had been removed because of race, which the U.S. Supreme Court has prohibited.

 

The 9th Circuit said the removal of only one juror because of race was enough to grant Castellanos a new trial and based its ruling on the strike of the woman. The three-judge panel said the prosecutor's reason for the strike was not supported by the evidence.

September 10, 2014 | Permalink | Comments (0)

"Those lawful, peaceful protesters did not deserve to be treated like enemy combatants.”

-- Sen. Claire McCaskill (D - Mo.) on the police response to protests in Ferguson during the Senate Homeland Security and Governmental Affairs Committee hearing yesterday. 

The hearing was set to evaluate the propriety of a policy that sends billions of dollars in military equiptment to local law enforcement across the county.

September 10, 2014 in Current Affairs | Permalink | Comments (0)

Not exactly ideal police behavior...

A Chicago policeman with "dozens of excessive force complaints over the years" is facing felony charges and a civil rights suit after allegedly "shoving his gun down [the] throat" of an unarmed suspect. WGN reports:

The lawsuit claims Evans violated Williams’ civil rights in January, 2013 when he chased him into an abandoned building in the Grand Crossing neighborhood. Evans allegedly shoved his gun down Williams’ throat while also threatening him with a Taser to the groin as he sought a confession for gun possession.

 

No guns were ever found and after filing a complaint, Williams’ DNA was found on Evans’ service weapon.

September 10, 2014 | Permalink | Comments (0)

Tuesday, September 9, 2014

Twisted OK halfway house allegedly formed "fight clubs" for inmates

The Tulsa World reports former inmates claim this violated some of their civil rights:

A lawsuit filed in federal court Monday alleges that former employees of the Avalon Tulsa halfway house violated inmates’ civil rights by organizing fight clubs and inmate beatings, selling drugs and charging inmates for falsified clean drug tests.

 

[...]

 

Court filings allege that former Avalon Tulsa administrator Donnie Coffman had inmates discipline one another through a system they called taking inmates “to court,” extorted residents of the halfway house, organized bets on fights, manipulated urinalysis drug tests and altered misconduct reports to prevent inmates from transferring to other facilities to keep Avalon’s beds full.

September 9, 2014 | Permalink | Comments (0)

Floridan alleges civil rights violations by officer who arrested him for crapping outside of bar

UPI

September 9, 2014 | Permalink | Comments (0)

Report: Strict voter ID laws may disenfranchise many transgender citizens

The Williams Institute for the study of sexual orientation and gender identity law and policy at the UCLA School of Law issued this report finding that strict photo ID laws could greatly affect the ability of transgender citizens to cast ballots in upcoming elections. It concludes:

Voter ID laws create a unique barrier for transgender people who would otherwise be eligible to vote. Many transgender people who have transitioned do not have identification that accurately reflects their correct gender. In the November 2014 election, strict photo ID laws may create substantial barriers to voting and possible disenfranchisement for over 24,000 transgender people in nine states. Transgender people of color, youth, students, people with low incomes, and people with disabilities are likely overrepresented in that group. In order for these 24,000 voting-eligible transgender people to obtain the updated IDs required to vote in the November 2014 general election, they must comply with the requirements for updating their state-issued or federally-issued IDs. These requirements vary widely by state or federal agency and can be difficult and costly to meet. Voter ID laws, therefore, will create a unique barrier to voting in the November 2014 general election for a substantial number of transgender citizens.

September 9, 2014 in Right to Vote, Voter ID | Permalink | Comments (0)

"Ballots for Bullets? Disabled Veterans and the Right to Vote"

The title of this post comes from the recent paper by Rabia Belt, the abstract of which states:

Over 100,000 veterans lived in a government-funded home after the Civil War. Despite sacrificing their bodies for the preservation of the nation, these veterans lost the right to vote. This disfranchisement challenges the conventional wisdom that disabled veterans occupied a privileged position in society, politics, and law. Instead, their disability status trumped their military history, and they became part of a set of dependent, disabled people rendered placeless and vote-less by state law.

September 9, 2014 in Right to Vote | Permalink | Comments (0)

Senate's 'Torture Report' might not be released until after mid-term elections

Senate Democrats and President Obama can't agree on redactions to the upcoming Senate report on the government's use of harsh interrogation techniques/torture in the years since 9/11. While some expected that it already would have been released, it now could be much later this year - maybe not even then - before we see it.

As I noted yesterday, over the weekend The Telegraph reported that an anonymous source claims the report will reveal CIA actions that will "deeply shock" us. 

September 9, 2014 | Permalink | Comments (0)

Senate hearing on militarization of police in progress

Senate Homeland Security and Governmental Affairs Committee hearing on the federal program that sends billions of dollars in military equiptment to local police forces.

- Video here.

- The Guardian's Tom McCartney is live-blogging here.

September 9, 2014 | Permalink | Comments (0)

“Nobody wants his mule and wagon stalled on the same track the Dixie Limited is roaring down.”

Judge Richard Posner is the Dixie Limited in this Flannery O'Connor quote, while Judge Martin Feldman - the judge who upheld Louisiana's ban on same-sex marriage - is apparently the mule.

According to The Atlantic's Garrett Epps, Posner's "tour de force" decision affirming the unconstitutionality of the same-sex marriage bans in Indiana and Wisconsin decimates most arguments for banning same-sex marriage. He questions whether Justice Anthony Kennedy will be willing to play the mule when the Supreme Court eventually addresses the issue.

September 9, 2014 in Same-sex marriage | Permalink | Comments (0)

ICYMI: Federal judge upholds Louisiana's same-sex marriage ban

But about his opinion.

September 9, 2014 in Same-sex marriage | Permalink | Comments (0)

Monday, September 8, 2014

"Two More Ways Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this recent essay by Professor David Alan Sklansky, the abstract of which states:

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.

September 8, 2014 in Fourth Amendment | Permalink | Comments (0)

CAIR requests civil rights probe into bank account closures

The Los Angeles Times reports some Muslims from across the country have had their bank accounts closed but haven't been told why. The Florida chapter of the Council for American-Islamic Relations (CAIR) wants the DOJ to investigate whether the account holder's race affected a bank's decision to close an account.

September 8, 2014 | Permalink | Comments (0)

Video shows NYPD officers beating man during routine noise disturbance call

Salon.com's Johanna Rothkopf notes this local report on a young man in the Bronx who was violently beaten by NYPD officers responding to routine noise disturbance. The video shows the two officers stop-and-frisk the young man. After more officers arrive, it shows them kicking him and hitting him with nightsticks and fists.

NYPD Internal Affairs Bureau is reportedly investigating the incident.

September 8, 2014 in Excessive Force, Stop-and-frisk | Permalink | Comments (0)

Public-accountability defense for whistleblowers and immunity for Snowden?

Professor Yochai Benkler argues that whistleblowers ought to be able to assert public-accountability as a defense to criminal charges resulting from unathorized public disclosures. He also says Congress ought to grant retroactive immunity to those national defense whistleblowers to whom the defense would have extended, such as Edward Snowden. He observes that whistleblowers in the national defense industry have fewer protections than whistleblowers in other industries, but he questions whether the government's interest in secrecy is sufficient to justify those limitations.

A system as complex as national security is bound to experience problems. But secrecy may actually affect the correction of those problems and thereby affect the overall efficiency of that system. Benkler explains:

Secrecy disables many of the mechanisms that other systems use to correct failure dynamics. In the public sector, informed and interested outsiders facilitate robust judicial, legislative, or executive oversight. In the private sector, both the stock market and regulators rely on public information and disclosure requirements to punish error, incompetence, and malfeasance. From defective products to poor business judgment, information flow is the critical ingredient of correction. The internal and external information silos that typify national security and the secrecy and mystique of the agencies all disable the standard mechanisms we use to counterbalance the error dynamics of other large organizations. The complexity and uncertainty of the threats the national-security system faces compound the difficulties so that even insiders—to say nothing of outsiders—struggle to evaluate whether an element of the system is working or has gone off track.

 

Because it is practically impossible for outsiders to check the national-security system, protecting insider whistleblowers is especially critical...Only repeated acts of conscientious disclosure by insiders have brought us close to a public airing of the limits of surveillance.

 

Reform that tries to rebuild the well-behaved aspects of the system but ignores the critical circuit-breaker role played by unauthorized whistleblowing is set up for failure. Respecting leaks and leakers is no slight to the patriotism or professional bona fides of people in the national-security system, the congressional staff, or the judicial officers who form the insider-review system. It is an admission that it is practically impossible to build a purely self-contained review regime.

Therefore, unauthorized whistleblowers are instrumental to the health of the national security system, and this importance ought to be reflected in the strength of the protections extended to them.

September 8, 2014 | Permalink | Comments (1)

“They were holding them under water until the point of death, with a doctor present to make sure they did not go too far. This was real torture.”

An anonymous source tells The Telegraph that the CIA tortured top al-Qaeda operatives captured after 9/11, including Khalid Sheikh Mohammed. This comes as we wait for a declassified version of the Torture Report, which apparently will reveal "brutality" that will "deeply shock" everybody. 

September 8, 2014 in Theories of Punishment | Permalink | Comments (2)

Friday, September 5, 2014

California bill requiring background checks for ammo purchases falls short

The Los Angeles Times reports that supporters of a bill that would require ammunition venders to "provide information on purchasers to the state Department of Justice after the fact" failed to garner enough votes to pass the bill out of the California State Assembly.

The bill was supported by law enforcement but opposed by the NRA and other gun-rights groups.

September 5, 2014 | Permalink | Comments (2)

NYTimes editorial board continues its call to end death penalty

The New York Times editorial board has become an increasingly staunch critic of the death penalty. Earlier this year, it called the death penalty a "despicable practice" that is both "racist" and "barbaric." The board again called for an end to the "irretrievably flawed" and "immoral" practice earlier this week after DNA evidence compelled a state judge to overturn the conviction of two North Carolina men for the 1983 rape and murder of a young girl. It argued:

Cases of capital prosecutions based on flimsy evidence or marred by prosecutorial misconduct, not to mention racial bias, are distressingly common... 

 

How many more remain on death row today? Can the American people be assured that none will be killed by the state? For this reason alone, the death penalty must end.

The Times observed that the two North Carolinians were treated particularly poorly. "The arrests, confessions, trial, and convictions" of the two men were all highly questionable. Both men were just teenagers at the time of their arrests, but they nevertheless were questioned for hours without their parents or lawyers present. They also were compelled to sign confessions written by the police. The prosecution failed to inform the defense of potentially exculpatory evidence, and it declined to seriously consider a third suspect - even when police requested fingerprint analysis of a print found at the crime scene as a possible match to that suspect.

Then there's this: "The prosecutor on the case, Joe Freeman Britt, was listed in the Guinness Book of World Records as the “deadliest prosecutor” for the nearly 50 death sentences he won during his tenure. Almost all have since been overturned."

September 5, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (1)

ICYMI: 'How the Supreme Court Protects Bad Cops'

Last week, University of California - Irvine School of Law dean Erwin Chemerinsky explained in a New York Times op-ed why holding police officers and other public servants accountable for wrongdoing is so difficult - United States Supreme Court precedent.

Chemerinsky recounts several recent Court decisions that have extended greater protections to local governments accused of constitutional violations. The Court has held, for example, that local governments will not be accountable for such actions unless their actual policies are unconstitutional. More specifically, "excessive force" claims against local law enforcement must demonstrate that no reasonable officer would have thought the challenged conduct violated constitutionally protected rights, an almost insurmountable burden for most litigants.

Indeed, wronged citizens often are left with few options. As Chemerinsky explains:

Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.

 

When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.

 

The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.

September 5, 2014 | Permalink | Comments (1)

Wednesday, September 3, 2014

"The Evolution of First Amendment Protection for Compelled Commercial Speech"

The title of this post comes from this essay by Professor G. Edward White, the abstract of which states:

This essay in an exercise in responding to the question “how did we get here” with respect to a contest contemporary issue in First Amendment jurisprudence. As late as the early 1970s no one would have thought that compelling speakers in the marketplace to propose a commercial transaction would have raised any First Amendment issues, because no one considered commercial speech to merit any protection under the First Amendment. In the New Deal period regulation of economic markets became relatively common, and was challenged on a number of constitutional grounds, the challenges typically invoking commerce power, federalism, or delegation arguments. No one suggested that efforts on the part of states to affect the content of advertisements for commercial products raised free speech concerns. Moreover, advertising itself was regarded as a suspect activity, inclined to create false or misleading expectations among consumers, and was thought eminently suitable for regulation. 

Thus in order to imagine cases such as United States v. United Foods, where in 2001 a majority of the Court struck down, on First Amendment grounds, a federal program assessing handlers of fresh mushrooms with fees to promote generic mushroom sales, one has to reckon with a sea change in attitudes toward speech, commercial speech, and commercial advertising between the early 1940s and the present. This essay, emphasizing developments in First Amendment cases and commentary, as well as changing cultural attitudes, attempts to trace that sea change.

September 3, 2014 in First Amendment | Permalink | Comments (0)

Mortiz to host 'Civil Rights Act at 50'

On Monday, September 15, The Ohio State University Moritz College of Law will host an exciting event examining the legacy of the Civil Rights Act of 1964, which turned 50 early this year. The event will take place at noon in Saxbe Auditorium, and it will feature a panel of prominent scholars and legal practitioners. Details and registration information are here.

That evening, the legendary Congressman John Lewis will discuss his experiences on the front lines of the Civil Rights Movement. Details are available here.

September 3, 2014 | Permalink | Comments (0)

Tuesday, September 2, 2014

"Contaminated Confessions Revisited"

The title of this post comes from this recent article by Professor Brandon Garrett, the abstract of which states:

A second wave of false confessions is cresting. In the first twenty-one years of post-conviction DNA testing, 250 innocent people were exonerated, forty of which had falsely confessed. Those false confessions attracted sustained public attention from judges, law enforcement, policymakers, and the media. Those exonerations not only showed that false confessions can happen, but did more by shedding light on the problem of confession contamination, in which details of the crime are disclosed to suspects during the interrogation process. As a result, false confessions can appear deceptively rich, detailed, and accurate. In just the last five years, there has been a new surge in false confessions — a set of twenty-three more false confessions among DNA exonerations. All but two of these most recent confessions included crime scene details corroborated by crime scene information. Illustrating the power of contaminated false confessions, in nine of the cases, defendants were convicted despite DNA tests that excluded them at the time. As a result, this second wave of false confessions should cause even more alarm than the first. In the vast majority of cases there is no evidence to test using DNA. Unless a scientific framework is adopted to regulate interrogations, including by requiring recording of entire interrogations, overhauling interrogation methods, providing for judicial review of reliability at trial, and informing jurors with expert testimony, the insidious problems of confession contamination will persist.

September 2, 2014 | Permalink | Comments (0)