Saturday, April 30, 2016
Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law. First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments. Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.
In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications. Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.
Wednesday, April 27, 2016
The Sacramento Bee's Alexei Koseff reports:
Despite impassioned pleas by supporters to reverse a policy they argue has disproportionately hurt minorities, legislation to repeal sentencing enhancements for certain drug crimes fell short in the California Senate on Monday.
Following a debate over whether it would be a boon to drug dealers, Senate Bill 966 failed on an 18-16 vote, three votes short of a 21-vote majority. Three members of the majority Democratic caucus joined Republicans in opposition and another five abstained.
Under current California law, someone convicted for the sale, possession for sale, distribution or transportation of drugs such as cocaine, heroin, methamphetamine and PCP receives an additional three years on their sentence for each prior conviction for one of those crimes.
Sen. Holly Mitchell, D-Los Angeles, said her bill sought to address a practice left over from the War on Drugs that has been wielded most harshly against blacks and Latinos, filling up jails while failing to reduce the availability of drugs. She said the ambiguous definition of “possession for sale” has allowed prosecutors wide discretion on who they target for mandatory minimum sentences.
“There should be no double jeopardy,” she said. “If you served your time once for a prior offense, that should be adequate.”
But several Republicans expressed concern that it would embolden drug dealers and make their communities less safe by allowing people out of jail sooner.
“It treats the trafficker exactly as the individual convicted of basically their first offense,” said Sen. Jeff Stone, R-Temecula. “Let’s hold people accountable for their crimes.”
SB 966 was granted reconsideration, and Mitchell said she plans to take it up again. She expressed disappointed that the debate missed her point and focused too much on drug cartels, even though sentencing enhancements for weight and volume would still allow authorities to purse harsher penalties for large-scale traffickers.
“That image and fear is out of step with who is locked up,” she said.
Tuesday, April 26, 2016
This article argues that marriage equality should be understood to have three interrelated aspects. First, the two members of the couple should be entitled to a relationship of equality. Second, marital and non marital couples should be treated with equal dignity and respect so that access to important societal benefits are not dependent on a couple's marital status. Third, individuals should be able to enter into marriage on a nondiscriminatory basis. The article argues that the Obergefell decision is neither the result or, nor likely to lead to, improvement in the first aspect of marriage equality unless the courts recognize the importance of women having a more genuine choice whether to enter (or leave) this institution. The article concludes by suggesting that we could better attain genuine marriage equality by insisting that the freedom to CHOOSE to marry requires the state to develop a more neutral legal stance towards the institution of marriage.
The title of this post comes from this recent Washington Post article by Katie Zezima, which states in part:
Transgender rights have become an unlikely and heated issue in the presidential campaign after North Carolina enacted a law that, among other things, mandated that people use the restroom that corresponds to the gender on their birth certificate.
Cruz has seized on Trump’s assertion that the North Carolina law, which also rolled back other protections for gay, lesbian and transgender people, was unnecessary and bad for business — corporations including PayPal and Deutsche Bank scrapped plans to create jobs in the state after the legislation was enacted. Trump said there has been “little trouble” with allowing people to use the restroom they want, though he later said that states should have the power to enact their own laws. Trump also said he would let transgender reality-television star Caitlyn Jenner use the women’s restroom at his properties.
Ohio Gov. John Kasich said he probably wouldn’t have signed the North Carolina law, while both Democratic candidates have condemned it...
Cruz’s argument centers on the idea that allowing transgender women to use women’s restrooms would lead to deviants dressing up as women and preying on young girls. His campaign released an ad accusing Trump of capitulating to the “PC police” and asking viewers whether a grown man pretending to be a woman should use a restroom with your daughter or wife.
“Donald Trump thinks so,” the ad reads...
President Obama weighed in on the issue Friday from Britain, which issued a travel advisory warning residents about the North Carolina law and another enacted in Mississippi that allows businesses to refuse service to same-sex couples on religious grounds...
“I want everybody here in the United Kingdom to know that the people of North Carolina and Mississippi are wonderful people,” said Obama, who also took a question from a person who claims no gender. “I also think that the laws that have been passed there are wrong and should be overturned.”
Democratic candidates Hillary Clinton and Bernie Sanders have forcefully condemned the laws, and Sanders said he would overturn them if elected president...
At least 18 states and the District of Columbia have enacted laws barring discrimination against transgender people, according to the American Civil Liberties Union, and at least 200 cities and counties prohibit discrimination based on gender identity.
The Fourth Amendment’s protections against unreasonable searches and seizures have resulted in a massive body of appellate case law, including several hundreds of decisions by the Supreme Court and many thousands of decisions by the lower courts. The article, written by a former long-time public defender, provides a comprehensive and accessible survey of the Fourth Amendment as applied to recurring real-world situations in which a police officer or other governmental official engages in a search or seizure of property or a person. The article addresses both “substantive” and “remedial” aspects of the Fourth Amendment in both criminal prosecutions and civil rights lawsuits and also discusses the many occasions when the Fourth Amendment tolerates reasonable mistakes by police officers. The article concludes by noting the many hurdles that a criminal defendant or civil rights plaintiff must overcome in order to prove a constitutional violation under the Fourth Amendment and then obtain a concomitant remedy.
Monday, April 25, 2016
Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons.
Criminal justice debt is the primary source for this imprisonment. Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist at all stages of the criminal justice system from pre-conviction to parole. They include a wide variety of items, such as fees for electronic monitoring, probation, and room and board. Forty-three states even charge fees for an indigent’s “free” public defender. With expanding incarceration rates and contracting state budgets, monetary sanctions have continued to escalate. Additionally, many states and localities are now outsourcing prison, probation, monitoring, and collection services to private companies, who add additional fees and charges to the criminal justice debt burden of defendants.
The impact of criminal justice debt is especially severe on the poor and minorities as they are frequently assessed “poverty penalties” for interest, late fees, installment plans, and collection. Often they have to decide between paying criminal justice debt and buying family necessities. The deaths of Michael Brown in Ferguson, Eric Garner in New York, and Freddie Gray in Baltimore have prompted renewed calls for investigation of the adverse treatment of the poor and minorities in the criminal justice system. The fear of arrest, incarceration, and unfair treatment for those owing criminal justice debt creates distrust in the system.
In February 2015, a class action complaint was filed against the City of Ferguson asserting that the city’s jails had become a “modern debtors’ prison scheme” that had “devastated the City’s poor, trapping them for years in a cycle of increased fees, debts, extortion, and cruel jailings.” Moreover, the Department of Justice’s report on the Ferguson Police Department presents a scathing indictment of a system apparently more concerned with revenue collection than justice. Unfortunately, as illustrated by recent lawsuits and investigations alleging debtors’ prisons in Alabama, Colorado, Georgia, Louisiana, Mississippi, New Hampshire, Ohio, Oklahoma, Tennessee, Texas, and Washington, the abuses are not limited to Ferguson, Missouri.
The same concerns that led to the historical restrictions on debtors’ prisons have risen again with the growth of modern-day debtors’ prisons. Similar to the prisons in London during the eighteenth and nineteenth centuries that were criticized for using a privatized system that charged inmates for all services, including room and board, the current justice system improperly charges the poor. It is now time to revisit these concerns and implement effective restrictions to reduce the incidence of debtors’ prisons. To remedy these concerns, my Article proposes eliminating egregious sanctions, providing courts flexibility to base fines on earning levels, and establishing procedures to enforce restrictions against incarcerating those who are truly unable to pay their criminal justice debt.
Tamir Rice was killed when he was just 12 years old. He'd been playing outside a local recreation center in Cleveland with a plastic pellet gun he'd borrowed from a friend. He was black. The officer responding to the 911 call of a concerned citizen who'd seen Tamir playing with the gun was white. The officer shot Tamir within two seconds of opening the door of his patrol car.
Today, the city agreed to a $6 million settlement in the civil rights lawsuit resulting from Tamir's killing. As the AP reports:
An order filed in U.S. District Court in Cleveland said the city will pay out $3 million this year and $3 million the next. There was no admission of wrongdoing in the settlement...
The wrongful death suit filed by his family and estate against the city and officers and dispatchers who were involved alleged police acted recklessly when they confronted the boy on Nov. 22, 2014.
Video of the encounter shows a cruiser skidding to a stop and rookie patrolman Timothy Loehmann firing within two seconds of opening the car door. Tamir wasn't given first aid until about four minutes later, when an FBI agent trained as a paramedic arrived. The boy died the next day...
In the Rice family lawsuit, Samaria Rice had alleged that police failed to immediately provide first aid for her son and caused intentional infliction of emotional distress in how they treated her and her daughter after the shooting.
The officers had asked a judge to dismiss the lawsuit. Loehmann's attorney has said he bears a heavy burden and must live with what happened...
The officers had responded to a 911 call in which a man drinking a beer and waiting for a bus outside Cudell Recreation Center reported that a man was waving a gun and pointing it at people. The man told the call taker that the person holding the gun was likely a juvenile and the weapon probably wasn't real, but the call taker never passed that information to the dispatcher who gave Loehmann and Garmback the high-priority call.
The Guardian's Ed Pilkington reports that a local Missouri judge has ordered the state to disclose the names of two pharmacies that provided it with lethal injection drugs. The article states in part:
The judge ruled that the pharmacies involved could not be counted as part of the execution team, and thus offered protection from identification, and that as a result the state had to divulge the details of how it obtained pentobarbital for use in the death chamber...
The Guardian, joined by the Associated Press and three prominent local news organizations – the Kansas City Star, the St Louis Post-Dispatch and the Springfield News-Leader – held that it was in the public interest that citizens were aware of how the ultimate punishment was being wielded in their name.
Judge Jon Beetem excoriated the department of corrections for refusing to hand over to the media plaintiffs key documents that identified the pharmacists involved.
The judge ruled that the DOC had “knowingly violated the sunshine law by refusing to disclose records that would reveal the suppliers of lethal injection drugs, because its refusal was based on an interpretation of Missouri statutes that was clearly contrary to law”...
Since the Guardian’s litigation was first lodged, 13 inmates have been put to death by Missouri – going to their deaths without them or the public having any idea of where the drugs used to kill them came from, nor of their quality.
All that was known was that the pentobarbital probably originated a compounding pharmacy, an outlet that makes up small batches of the drug to order, normally for cosmetic purposes.
Along with most other active death penalty states, Missouri has increasingly wrapped itself in secrecy in an attempt to get around a powerful European-led boycott that has blocked trade in lethal injection drugs to US prison departments on ethical grounds.
In order to circumvent the stranglehold, states have taken to hiding the identity of pharmacists and medical laboratories involved in selling and testing the drugs for use in executions.
As the boycott tightened, death penalty states turned to ever more extreme – and in some cases bizarre – supply routes. Last year, BuzzFeed tracked down one such illegal supply line to an office complex in Kolkata, India.
The danger of carrying out the death penalty while withholding from the public the nature and the source of the drugs used was underlined by a succession of botched executions in which gruesome scenes were witnessed on the gurney.
The judge's opinion is available here.
Saturday, April 23, 2016
This recent paper is available here. Here's the abstract:
Procedural justice theory predicts a relationship between police behavior, individuals’ normative evaluation of police, and decisions to comply with laws. Yet, prior studies of procedural justice have rather narrowly defined the potentially relevant predicates of police behavior. This study expands the scope of procedural justice theory by considering a broad array of policing components, including unobserved actions such as electronic surveillance, respecting the limits of one’s legal authority, and the unequal or equal distribution of policing resources between different groups. Analyzing data from a national probability sample of adults in England and Wales, we (a) present a comprehensive investigation of the heterogeneous elements of policing related to legitimacy judgments and (b) contribute to debate about the nature of legitimacy.
In Felon Disenfranchisement is Anti-Democratic, Professor and NAACP Legal Defense and Educational Fund associate director Janai Nelson makes the case for enfranchising felons. She writes:
The laws that prohibit an estimated 5.85 million Americans with felony convictions from voting are one of the last remaining legal barriers to full democratic participation in our nation.
Like the antiquated laws that excluded women, people of color and the poor from the ballot box, felon disenfranchisement laws are an anti-democratic tool with a sordid history of discrimination. Today, they intersect with the profound racial disparities in the U.S. criminal justice system to keep one out of every 13 African-Americans from voting.
Gov. Terry McAuliffe’s recent executive order restoring voting rights to the more than 200,000 Virginians with felony convictions — which keeps one in five African-Americans from voting there — is the powerful leadership needed across the nation to combat vestiges of de jure racial discrimination andrecent retrenchment on voting rights more broadly.
In 1985, the landmark Supreme Court case, Hunter v. Underwood, revealed the racist roots of felon disenfranchisement laws in Alabama. Persons convicted of crimes "involving moral turpitude" were not allowed to vote. Yet African-Americans were so disproportionately affected by this law, the Supreme Court struck it down, and indeed found evidence that the law was passed to intentionally exclude blacks from the ballot. Alabama’s unabashed pursuit of white supremacy through the enactment of these laws rendered them unconstitutional.
Virginia's laws have similarly ignominious origins. A 1906 report quoting the former Virginia state senator Carter Glass forecast that voting laws passed in 1902would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.
What's more, modern support for felon disenfranchisement is often based on negative assumptions about how someone’s identity, status or past behavior will inform his or her choices in the ballot box. But assumptions about a voter's viewpoint violate First Amendment principles.
Instead, we should be doing everything possible to successfully integrate the estimated 636,000 people released from prisons each year into society, such as passing federal legislation like the Democracy Restoration Act — which has been introduced over and over again, in legislative session after session — to ban felon disenfranchisement and end unnecessary criminal background checks. These and other re-entry tools are critical to reducing recidivism and reversing the deleterious effects of our outsized carceral state.
In a country that has the highest incarceration rate of any modern democratic nation, laws that prevent prisoners from voting also imprison our democracy. The disfranchisement of people with felony convictions is one of the most pressing civil rights issues of our time.
Friday, April 22, 2016
DOJ finds University of New Mexico's "flawed system" for handling sexual assault claims fails to meet Title IX requirements
Title IX of the Civil Rights Act requires colleges and universities to investigate allegations of sexual assault and harassment. As The Huffington Post's Tyler Kingkade reports, the University of New Mexico (UNM) doesn't seem to care--at least according to a recent DOJ investigation into the university's handling of sexual assault and harassment allegations over a six-year period. As Kingkade writes:
During much of that time, UNM had no written protocol on how long it should take with investigations, and cases often took twice as long to resolve as the 60-day timeframe recommended by the U.S. Department of Education. Both complainants and respondents were often not told about delays or why things were taking so long, the DOJ said...
Further problematic was that until the DOJ investigation, the [Office of Equal Opportunity], which handled sexual assault investigations, reported to the office of the university’s general counsel.
“This management structure created a conflict between OEO’s stated goal of eliminating and redressing harassment and OUC’s role in limiting the University’s liability,” the DOJ said.
Interim sanctions were inconsistent...
Students speaking with federal investigators accused campus police of gender bias, saying officers questioned victims about why they didn’t do more to fight off their attackers or lectured them on why young women should not drink in public, the report said. UNM cops often believed at “face-level” the accused students’ claims that victims consented and rarely challenged them, federal investigators found.
University administrators had similar sentiments, the DOJ said, sometimes describing victims as “lonely” or “clingy.” In interviews, “University officials made several statements placing blame with students who are assaulted, reflecting a significant lack of understanding about the dynamics of sexual assault.”
The DOJ will now require UNM to provide better and clearer information about reporting options for sexual violence, and disclose more details to students and staff on where to go for assistance or to begin grievance procedures. The university will also have to revise policies, procedures and investigative practices to ensure “prompt and equitable resolution of sexual harassment and sexual assault allegations.”
Virginia Governor Terry McAuliffe (D) issued an executive order today extending the right to vote to felons who have completed their sentences and parole or probation, as The NYTimes's Sheryl Gay Stolberg and Erik Eckholm report here. The entire article is worth reading, but here are a few excerpts:
The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole or probation to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.
Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons...
Friday’s shift in Virginia is part of a national trend toward restoring voter rights to felons, based in part on the hope that it will aid former prisoners’ re-entry into society. Over the last two decades about 20 states have acted to ease their restrictions, according to the Brennan Center for Justice at New York University.
Only two states — Maine and Vermont — have no voting restrictions on felons.
Virginia has been one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions, a lifetime ban on voting for felons. The Sentencing Project says one in five African-Americans in Virginia cannot vote...
Prof. A. E. Dick Howard of the University of Virginia School of Law, the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once...
The governor’s action Friday will not apply to felons released in the future; his aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover people as they are released.
As voluntary affirmative action in the United States has been transformed into diversity management, the original intended beneficiaries of affirmative action, racial/ethnic minority group members and women, and particularly Black Americans, have been left behind.
Despite controversy over the use of racial quotas in the United States, demands for voluntary affirmative action by private employers grew into a nationwide movement in the 1960s under the leadership of Rev. Dr. Martin Luther King Jr. and Rev. Jesse Jackson. In cities across the United States with large Black populations, they demanded the use of proportional hiring so that companies selling their products to Black consumers would hire Black employees in proportion to the local Black population or their Black clientele. In the 1964 Civil Rights act, the U.S. Congress considered the affirmative action/proportional representation/quota issue and reached a compromise; employers would not be required to give preferences to Black applicants, but neither would they be prohibited from voluntarily doing so. In the 1970s and 80s the U.S. Supreme Court upheld the compromise, holding that private employers could give hiring and promotion preferences to underrepresented ethnic/racial minority workers (and women) to correct “imbalances” in the workplace, subject to certain limitations. Yet beginning with the election of Ronald Reagan in 1980, and accelerating into the twenty-first century, U.S. employers have abandoned affirmative action policies in favor of “diversity management” policies. While these policies initially focused on the hiring and promotion of women and racial/ethnic minorities, as diversity policies have grown and developed, they have abandoned their focus on aiding underrepresented workers. As a result, Black Americans are being left behind, even as the policies adopted through their advocacy have become widely accepted.
Thursday, April 21, 2016
This Review argues that an important root cause of our criminal justice ails can be found in the social processes that comprise the system’s daily activities and forms of control over individual Americans — processes largely taken for granted. To explore the ground level interpersonal interactions that underpin the criminal justice system, we engage three recent books: Pulled Over: How Police Stops Define Race and Citizenship by Professors Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel; On the Run: Fugitive Life in an American City by Professor Alice Goffman; and The Eternal Criminal Record by Professor James Jacobs. Substantively and methodologically, the books might first seem an odd trio. But together, they reveal the importance of a key phenomenon: “surveillance” in the word’s broadest sense — keeping track of people’s movements, histories, relationships, homes, and activities.
Tuesday, April 19, 2016
The title of this post comes from this paper, the abstract of which states:
The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the “new policing.” This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the “new policing” gave rise in the 1990s to popular, legal, political and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated whites, even when controlling for local social and crime conditions. In this article, we examine racial disparities under a unique configuration of the streetstop prong of the “new policing” – the inclusion of non-contact observations (or surveillances) in the field interrogation (or investigative stop) activity of Boston Police Department officers. We show that Boston Police officers focus significant portions of their field investigation activity in two areas: suspected and actual gang members, and the city’s high crime areas. Minority neighborhoods experience higher levels of field interrogation and surveillance activity, controlling for crime and other social factors. Relative to white suspects, Black suspects are more likely to be observed, interrogated, and frisked or searched controlling for gang membership and prior arrest history. Moreover, relative to their black counterparts, white police officers conduct high numbers of field investigations and are more likely to frisk/search subjects of all races. We distinguish between preference-based and statistical discrimination by comparing stops by officer-suspect racial pairs. If officer activity is independent of officer race, we would infer that disproportionate stops of minorities reflect statistical discrimination. We show instead that officers seem more likely to investigate and frisk or search a minority suspect if officer and suspect race differ. We locate these results in the broader tensions of racial profiling that pose recurring social and constitutional concerns in the “new policing.”