Thursday, June 9, 2016

"Prisoners of Pleading"

The title of this post comes from this intriguing paper by Professors Richard Frankel and Alistair Newbern, the abstract of which states:

Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than ninety percent of those actions were filed pro se. Pro se prisoners frequently use — and in many federal districts are required to use — standardized complaint forms created by the federal judiciary. These standard forms first came into use in the 1970s at the recommendation of a committee of federal judges seeking to more effectively manage prison litigation and reduce its burdens on the federal courts. Although complaint forms have been around for nearly forty years and are now used in almost every federal district, no one, until now, has recognized the extent to which these forms actually diverge from or misrepresent the content of the law.

In this paper, we collect and analyze every form complaint used by the federal district courts. Our results indicate that, while form complaints can be helpful to pro se prisoners, many impose burdens that are inconsistent with governing law. First, many complaints require prisoners to plead facts that the law says they are not required to plead. Second, many complaints prohibit or discourage prisoners from pleading facts necessary to survive a motion to dismiss. Third, some complaints require plaintiffs to plead legal conclusions, using language that may confuse unsophisticated prisoners and cause them to make inadvertent but significant legal errors.

These flaws can impose serious consequences on prisoners, including unwarranted dismissal of their complaints. Prisoners are already uniquely marginalized in our legal system. They should not bear added pleading burdens not faced by other litigants. To address the concerns raised in our study, we provide a model form complaint that is compliant with the law and that attempts to reduce the hurdles prisoners face to filing a factually sufficient complaint.

June 9, 2016 in Civil Rights Litigation, Prisons and Prisoners | Permalink | Comments (0)

Court grants inmate right to sue prison officials for surgically removing marbles from his penis

...as an alleged invasion of his right to privacy. Here's a taste:

MablesBy a 3-0 vote, the 4th U.S. Circuit Court of Appeals said Adrian King could pursue claims that officials at Huttonsville Correctional Center illegally threatened him into consenting to the June 2013 surgery, or risk being segregated from other inmates and lose his eligibility for parole.

 

Circuit Judge Roger Gregory found “overwhelming evidence” that the intrusion was unreasonable, despite the asserted need by prison officials to police the security threat posed by inmates carrying contraband within their bodies.

 

“The interest in bodily integrity involves the most personal and deep-rooted expectations of privacy, and here, the nature of the surgery itself, surgery into King’s penis, counsels against reasonableness,” Gregory wrote for the Richmond, Virginia-based appeals court.

 

King had had the marbles implanted in and tattoos drawn on his penis in late 2008, prior to his incarceration, during a “body modification” craze.

June 9, 2016 in Prisons and Prisoners | Permalink | Comments (0)

Wednesday, June 8, 2016

"California’s Right to Die law goes into effect"

Tomorrow, California will become the fifth state -- along with Montana, Oregon, Vermont and Washington -- to legalize the right of terminally ill patients to end their own lives. This AP report begins:

California on Thursday becomes the latest state to allow the terminally ill to legally choose to end their lives, raising worries among some people in the state’s large Latino and African-American communities that poor people with serious illnesses could be pressured to take lethal drugs as a cheaper option to long-term care.

 

California is far more diverse than the other states where the option is available — Washington, Vermont, Montana and Oregon, the first to adopt the law in 1997.

 

Of the 991 terminally ill people who have decided to take life-ending drugs in Oregon, most have been white, over 65 and well educated, according to a February report from the Oregon Health Authority.

 

This spring, the national right-to-die advocacy organization, Compassion & Choices, named Latina, African American and Filipina-American women to reach out to minority communities. The group also set up a bilingual hotline explaining the law and held meetings in largely Spanish-speaking areas such as California’s Central Valley...

 

California has more safeguards than other states. Before a doctor can prescribe lethal drugs, a patient 18 or older must make two oral and one written request. The law also requires a diagnosis that the person has less than six months to live and that the person can take the drugs without help from anyone.

 

Life-ending drugs will be covered under MediCal, the state’s public insurance plan, but it limits coverage of outpatient palliative care consultations unless the person has stage IV cancer.

June 8, 2016 | Permalink | Comments (0)

California NAACP calls marijuana legalization initiative a civil rights issue

A recent study by the Drug Policy Alliance found that African Americans and Latinos are disproportionately arrested for marijuana possession in California. Shortly after the release of the report, the California NAACP announced its support for Proposition 19, the ballot initiative that, if approved this November, would legalize marijuana in the state. Here are excerpts from CNN.com's report:

300px-California_marijuana_templatePolice departments in California have made more than 60,000 marijuana possession arrests in 2008, three times more than in 1990, according to a recent study released by the Drug Policy Alliance an organization that says it promotes policies to end the war on drugs. Although blacks and Latinos make up less than 44 percent of the state's population, together both ethnic groups constitute up to 56 percent of arrests that are made for marijuana possession in California, according to the study. Furthermore, the U.S. Department of Health and Human Services has found that African-Americans use marijuana at lower rates than white Americans across the country.

 

The study said arrests in California are "racially-biased" and have led to a "system-wide phenomenon, occurring in every county and nearly every police department in California, and elsewhere."

 

Hilary O. Shelton, vice president of advocacy for the NAACP, said these numbers make it a civil rights issue.

 

"We are usually conservative in terms of the issues that we support, but disproportionate prosecution of [African-Americans for] drug-related offenses for marijuana has called us to fight for decriminalization in our community."

 

"If the law on drug possession was being enforced correctly, then the number of arrests and prosecutions and prison sentences would be proportionate to our society across the board," Shelton said.

 

"Sadly, that's not the picture."

 

But some African-Americans don't think the solution to the problem is to legalize marijuana.

 

Bishop Ron Allen, an outspoken leader of the International Faith-Based Coalition and member of the NAACP, is outraged by the endorsement.

 

He, along with 24 other faith- and activist-based organizations held a press conference in California Wednesday, calling for the resignation of Alice Huffman, claiming the California NAACP's endorsement of marijuana legislation is selling out the African-American community.

 

"If you think you are a civil rights leader, you should know better than anyone not to open the door to laws that will poison our community," Allen said.

June 8, 2016 | Permalink | Comments (0)

"That's Unfair! Or Is It? Big Data, Discrimination and the FTC's Unfairness Authority"

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

Big data and data analytics (“big data”) can produce many social and economic benefits. But they can also generate privacy injuries and harmful discrimination. The governance of big data should, accordingly, focus on balancing benefits and risks. Where the potential benefits outweigh the risks, the big data application should be seen as appropriate. Where the risks outweigh the benefits, it should be seen as inappropriate. This provides a framework for sorting beneficial from harmful uses of big data, and so for figuring out which big data applications are in bounds, and which are not.

Others have advocated a risk-benefit approach to big data. However, the scholarly literature has not yet identified a legal basis on which to ground such an approach. This Article does. It argues that the FTC could use its Section 5 “unfairness authority” to draw the line between those big data uses that are appropriate and fair, and those that are inappropriate and unfair. In this way, it could provide guidance to big data businesses that are struggling to find a coherent, legally-grounded framework for making such calls. It could also take an important step towards protecting privacy and civil rights in the era of big data.

This raises an important legal question. Does the Commission’s unfairness authority encompass the governance of big data? Or does this task lie outside the scope of the FTC's statutory jurisdiction? Here, the essay offers an original reading of FTC v. Wyndham Worldwide Corp., a district court decision (on appeal at the time of this writing) that provides the latest word on the scope of the FTC’s unfairness jurisdiction. It shows that the Wyndham decision both supports the FTC’s authority to govern big data practices and provides guidance on how the Commission could go about doing so.

June 8, 2016 in Web/Tech | Permalink | Comments (0)

Tuesday, June 7, 2016

"'Bitch,' Go Directly to Jail: Student Speech and Entry into the School-to-Prison Pipeline"

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

This article demonstrates the close connection between student speech that the First Amendment protects (even for students in grades K-12) and penalties school authorities impose on speech they find controversial or offensive. The penalties include deprivation of instructional time – suspension, expulsion and assignment to alternative school for troubled and disruptive youth. The link between the exercise of First Amendment rights and school discipline that starts young people on the school-to-prison pipeline is even more dramatic when on-site police officers arrest students or schools refer them to the juvenile justice system for violating a school speech code – rules imposed by the school that may restrict expression the First Amendment protects in- and out- of school. Using national and local survey data that show the majority of students suspended from school are charged with nothing more than a code violation, often involving protected speech (such as cursing or criticizing a teacher), as well as reported cases about violations of student speech rights decided long after students had lost educational time, and the stipulations in the prolonged civil rights litigation in Meridian, Mississippi linking race, speech, in-school arrests and incarceration, the article demonstrates a nexus between the exercise of constitutional rights and the school-to-prison pipeline. The article also discusses penalties imposed for off-campus speech by students, especially online expression. The author argues that protected speech should never result in penalties that lead to adjudication as a delinquent or confinement in a juvenile facility.

June 7, 2016 in Schools | Permalink | Comments (0)

Monday, June 6, 2016

Federal judge orders release of grand jury transcripts to Michael Brown's family

The AP's Jim Suhr has this report, which begins:

Michael Brown's family will get unredacted transcripts of grand jury proceedings involving the officer who killed the 18-year-old, a federal judge said Monday, marking the first time someone other than a prosecutor or grand juror will see uncensored details of the secret proceedings.

 

U.S. District Judge E. Richard Webber's protective order spelling out terms of the release requires St. Louis County prosecutors to hand over the testimony and the names of grand jury witnesses to attorneys for Brown's family, which is pressing a wrongful-death lawsuit. The order bars the attorneys designated to see the grand jury items from making any of them public, lest they be jailed for contempt.

 

The grand jury's November 2014 decision to not indict white Ferguson police officer Darren Wilson for shooting Brown, who was black and unarmed, rekindled often-violent protests that immediately followed Brown's death three months earlier. Wilson later resigned.

 

St. Louis County Prosecuting Attorney Robert McCulloch publicly released heavily redacted transcripts of the grand jury testimony, but he refused to release the names of witnesses, who were promised anonymity.

 

An attorney for McCulloch's office, Linda Wasserman, had opposed the disclosure request and later sought to limit it. In a recent court filing, she cited "continued grave concerns, in light of the lives at stake, regarding the efficacy of a protective order in controlling the short-term and long-term threat of personal harm to innocent persons called as witnesses in this case."

 

Monday's order also calls for authorities to release unredacted transcripts of witness interviews, written statements obtained by St. Louis County police, audio-record transcripts and autopsy and scene photographs not previously disclosed.

June 6, 2016 | Permalink | Comments (0)

“I did my time; I did everything I was supposed to do. I paid the courts, I paid the fines and got my life back on track..."

...explains one woman who hopes to vote this November thanks to an executive order by Virginia Gov. Terry McAuliffe (D) restoring voting rights to former felons. However, Virginia Republicans recently challenged the governor's authority to issue the order. As The New York Times's Sheryl Gay Stolberg explains:

In issuing his sweeping order, Mr. McAuliffe made expansive use of his clemency powers to effectively nullify a Civil War-era provision in the State Constitution that barred convicted felons from voting for life — one of the harshest disenfranchisement policies in the nation. In an interview previewing his announcement, Mr. McAuliffe said his legal authority to do so is “ironclad.” But Republicans say the governor lacks blanket authority to restore voting rights and must instead do so on a case-by-case basis — as his predecessors in both parties have done.

 

“He’s really put a stick in the legislature’s eye,” said Speaker William J. Howell of the Virginia House of Delegates, the lead plaintiff in the Republican suit [challenging the governor's order]. He said the suit “has nothing to do with” the registration drive, and rejected Democrats’ accusations that Republicans were trying to suppress the black vote: “The governor has whipped them up.”

 

Still, race is a powerful subtext; African-Americans make up 19 percent of Virginia’s population, but 45 percent of those covered by the governor’s order. The Sentencing Project, a Washington research organization, says one in five African-Americans in Virginia cannot vote because of felony convictions.

 

“When you look at the fact that of the individuals who are most impacted by this, 45 percent of them are African-American, what conclusion can we draw?” asked State Senator Mamie Locke, chairwoman of the Virginia Black Legislative Caucus, which held “Voices for The Vote” rallies on Saturday in three Virginia cities.

 

Organizers of the registration drive say they would like to sign up 25,000 new voters in time to cast ballots on Election Day.

 

“That could make a difference,” said Bob Holsworth, a longtime political analyst in Virginia, noting that some state races in Virginia had been decided by relatively slim margins, of 5,000 or 6,000 votes.

As it stands, Iowa, Florida and Kentucky are the only other states that deny voting rights to felons for life. 

June 6, 2016 in Election Law, Right to Vote | Permalink | Comments (0)

NYTimes' editorial board calls for federal oversight of local prosecutors

The editorial, titled To Stop Bad Prosecutors, Call the Feds, begins:

Prosecutors are the most powerful players in the American criminal justice system. Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.

 

So why is it so hard to keep them from breaking the law or violating the Constitution?

 

The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions. It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights. There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.

 

Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.” Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence. Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases...

This is precisely what happened to Kerry Max Cook, a man who has spent 40 years proclaiming his innocence of the brutal 1977 murder of Linda Jo Edwards. Questions as to his guilt abounded, but one of the most troubling aspects of the case was the prosecutor's decision to withhold an eyewitness account that identified the victim's lover--and not Cook--as leaving the crime scene around the time of the victim's death. In this extensive piece (which is well worth reading), The Texas Monthly's Michael Hall writes:

Earlier this year, the dramatic case got even more drama. In January Udashen [one of Cook's appellate attorneys] filed a motion for the Smith County DA’s office to provide any exculpatory evidence it hadn’t provided before... They found several pieces of evidence they didn’t know about—and one was explosive.

 

It was a police report filed in 1991 by Tyler PD detective Eric Liptak. Rudolph [the only eyewitness in the case], Liptak wrote, told police she “thought” the man in the apartment was Mayfield [the victim's former lover]. But Liptak went on: “Ms. Rudolph did later state that [t]he man she saw was Mr. Mayfield but that was after extensive questioning by Mr. Thompson, the lead prosecutor in the case.” In other words, according to the report, the lead prosecutor knew that Rudolph originally identified Mayfield as the man in the apartment. But prosecutors never gave Liptak’s report to the defense, as they are required to do. They never corrected Rudolph on the stand when she said she’d never identified Mayfield, nor did they correct her when she identified Cook at the trial as the man she saw in Edwards’ room. 

Fortunately for Cook, the newly elected D.A. announced today that he was dropping the charges against Cook.

When it convenes later this month, will the Supreme Court grant David Brown similar reprieve? As The Times explains:

This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard. Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway. Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.

 

This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing. But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.

Regardless of the Court's decision, prosecutors will remain relatively immune from punishment unless steps are taken to curb their authority.

State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear. Professional ethics boards rarely discipline them. And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of. Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.

 

This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.

June 6, 2016 | Permalink | Comments (0)

Sunday, June 5, 2016

"Policing as Administration"

The title of this post comes from this intriguing paper by Professor Christopher Slobogin, the abstract of which states:

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court’s special needs jurisprudence (practices that this article calls “panvasive”). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors — as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection — they should have to engage in notice-and-comment rule-making or a similar democratically-oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented even-handedly, both in each instance and as they are distributed within the agency’s jurisdiction. Further, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.

June 5, 2016 in Fourth Amendment | Permalink | Comments (0)

Wednesday, June 1, 2016

"No Federal Charges for Minneapolis Police in Fatal Shooting"

The New York Times's Matt Furber and Richard Perez-Pena have this report, which states in part:

Minneapolis police officers will not face federal charges in the fatal shooting of a young black man in November, an episode that roiled the city with days of demonstrations, federal officials said Wednesday, citing evidence that seemed to bolster the officers’ account of what happened.

 

Most crucially, the evidence suggested that Jamar Clark, 24, “was not, in fact, handcuffed when he was shot,” despite claims by eyewitnesses that he had been, Andrew M. Luger, the United States attorney for Minnesota, said at a news conference. And he pointed to evidence that could support the officers’ claim that Mr. Clark had been grabbing one officer’s gun.

 

To prove that the officers had violated Mr. Clark’s civil rights, “the government would have had to establish beyond a reasonable doubt that the use of force was objectively unreasonable,” and that the officers had acted “with the specific intent to do something that the law forbids,” Mr. Luger said. After a lengthy investigation by his office, the F.B.I. and the Justice Department’s Civil Rights Division, he said, prosecutors could not make those claims.

 

“There are no winners here, and there’s no victory for anyone,” he said. “A young man has died, and it is a tragedy.”

 

Outside the F.B.I. office where officials announced the decision, a group of protesters, including members of Black Lives Matter, gathered to bitterly contest it...

 

The federal government’s conclusion largely confirms the findings of the Hennepin County Attorney’s Office, which reported on March 30 that Mr. Clark had not been handcuffed when he was shot, and that he had fought with an officer and grabbed his gun. The county attorney also declined to prosecute the officers.

June 1, 2016 | Permalink | Comments (0)

"Prostitution is not the 'oldest profession,' as the saying goes; it’s the oldest oppression..."

... writes former President Jimmy Carter in The Washington Post. In "To curb prostitution, punish those who buy sex rather than those who sell it," Carter begins:  

It is disturbing that some human rights and public health organizations are advocating the full legalization of the sex trade, including its most abusive aspects. I agree with Amnesty International, UNAIDS and other groups that say that those who sell sex acts should not be arrested or prosecuted, but I cannot support proposals to decriminalize buyers and pimps.

 

Some assert that this “profession” can be empowering and that legalizing and regulating all aspects of prostitution will mitigate the harm that accompanies it. But I cannot accept a policy prescription that codifies such a pernicious form of violence against women. Normalizing the act of buying sex also debases men by assuming that they are entitled to access women’s bodies for sexual gratification. If paying for sex is normalized, then every young boy will learn that women and girls are commodities to be bought and sold.

 

There is a much better policy option.

 

In my 2014 book “A Call to Action: Women, Religion, Violence and Power,” I described the approach known as the “Nordic model,” which is consistent with advancing human rights and healthy societies. Pioneered in Sweden and adopted most recently in Canada and France, this strategy involves decriminalizing prostituted women and offering them housing, job training and other services. Instead of penalizing the victims, however, the approach treats purchasing and profiting from sex acts as serious crimes. Another key component is public education about the inherent harms of prostitution for those whose bodies are sold.

 

In Sweden, demand for prostitution has fallen dramatically under this model. Conversely,Germany and New Zealand, which have legalized all aspects of prostitution, have seen an increase in sex trafficking and demand for sexual services.

 

Critics of the Nordic model assert that mature adults should be free to exchange money for sex. This argument ignores the power imbalance that defines the vast majority of sex-for-cash transactions, and it demeans the beauty of sexual relations when both parties are respected.

 

Sex between people who experience mutual enjoyment is a wonderful part of life. But when one party has power over another to demand sexual access, mutuality is extinguished, and the act becomes an expression of domination. As author and prostitution survivor Rachel Moran explained in her book, “Paid For,” once money has exchanged hands, a woman must deliver whatever service the customer demands.

 

June 1, 2016 | Permalink | Comments (0)

"Contemporary Voting Rights Controversies Through the Lens of Disability"

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

People with disabilities are the ticking time bomb of the electorate. An estimated thirty to thirty-five percent of all voters in the next twenty-five years will need some form of accommodation. Despite the significant and growing population of voters with disabilities, they do not vote in proportion to their numbers. We can consider voters with disabilities as “the canaries in the coal mine,” the people who are an advanced warning of the structural difficulties in voting not just for themselves, but also for the system as a whole. Solving problems in voting for people with disabilities will strengthen the entire system and will help improve the voting process for everyone, especially people from disempowered communities. Furthermore, although election law scholars have largely ignored the unique voting problems confronting voters with disabilities, virtually every major voting controversy in contemporary American electoral politics directly implicates issues of disability.

 

This Article examines the state of disability access to voting in the lead-up to the 2016 election, revealing an electoral problem that has been lurking in the background for far too long. Current debates about access to voting and voter restrictions often ignore the current legal landscape’s disparate effect on those with disabilities. The insights in this Article offer another angle of intervention towards ameliorating the problems in the voting process for disempowered individuals. This call for reform is timely in light of the upcoming presidential election. We tend to think of problems of voting and disability, if we think of them at all, as classic issues of physical access. But in fact, the contemporary problems with respect to voting that preoccupy election lawyers are also heavily implicated by disability as well and moreover are central to the inquiry. This Article reveals those hidden disability implications of our contemporary election law problems.

June 1, 2016 | Permalink | Comments (0)

"Court denies motion to reconsider transgender bathroom ruling"

The U.S. Fourth Circuit Court of Appeals yesterday refused a Virginia school board's request to reconsider the court's decision granting transgender students access to the restrooms that correspond with their gender identities. As Reuters' Ian Simpson reports:

The Gloucester County School Board had asked the full U.S. Fourth Circuit Court of Appeals to review the decision by a three-judge panel last month in favor of Gavin Grimm, a student at the local high school.

 

The request was denied since none of court's 15 judges asked for a vote on the rehearing, the court said. The case has been seen as impacting the national bathroom wars between gay rights activists and social conservatives.

 

Grimm had filed suit after being barred from using the boys’ bathroom at his school. Grimm was born a female but identifies as a male.

 

“Now that the Fourth Circuit’s decision is final, I hope my school board will finally do the right thing and let me go back to using the boys’ restroom again,” Grimm said in a statement.

 

The April ruling sent the widely watched case back to a lower court to re-evaluate Grimm's request for a court order. The ruling was the first by an appeals court finding protections for transgender students under the 1972 Title IX Act, which bars sex-based discrimination by schools receiving federal funding.

 

President Barack Obama's administration filed a brief in support of Grimm.

June 1, 2016 | Permalink | Comments (0)