Saturday, June 7, 2014
WaPo's Katie Zezima recently interviewed Margaret H. Marshall, former chief justice of the Massachusetts Supreme Court and author of Goodridge v. Department of Public Health, the decision that legalized same-sex marriage in Massachusetts. Particularly intriguing is Marshall's response to claims that the success of same-sex marriage has come quickly since her 2003 decision.
It is often people who have had access to these rights and responsibilities who think of it as speed, but for those who have not had access to these rights and responsibilities they may view it differently, and they do view it differently. Because the time between 2003, when the Goodridge case was decided, [and now] -- it did not change the law outside Massachusetts. And now it is a decade later. So think of it through a child’s eyes. A couple wants to adopt and raise a child. And they must wait for 10 years, then file a lawsuit. That’s a long time for a couple to wait. It might be that the woman is 35 and she’s now 45. That’s a biological challenge. It might be that there’s a particular child a male gay couple wants to adopt and the child is 2 or 3 or 4 and the child is now 12 or 13 or 14. Speed is through the eyes of the beholder. And the first legal case raising a right of access to marriage for same-sex couples was filed close to 50 years ago.
According to Freedom to Marry, 19 states now allow same-sex marriages. In eight others, judges have struck down same-sex marriage bans, but marriage equality in those states generally awaits appellate review of those decisions.
Most recently, U.S. District Judge Barbara Crabb struck down Wisconsin's same-sex marriage ban yesterday as violative of the "liberty and equality" rights of same-sex couples. She wrote:
I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiff’s right to marry, in violation of the Due Process Clause, and discriminates against plaintiffs on the basis of sexual orientation, in violation of the Equal Protection Clause.
Monday, March 31, 2014
"[G]a[y]ffirmative Action: The Constitutionality of Sexual Orientation-Based Affirmative Action Policies"
Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities — such as affirmative action policies — as they do to laws invidiously discriminating against them.
The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court’s established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.
As a result of that tension, the Court’s line of precedents for identifying new suspect and quasi-suspect classes has gone dormant, and it has not since considered whether any additional such classes exist. Instead, when confronted with plausible candidates for heightened scrutiny, such as gays and lesbians, the Court has engaged in sporadic application of stealth rational basis review.
In this article, I use a hypothetical equal protection challenge to a sexual orientation-based affirmative action policy as a vehicle for proposing a roadmap for harmonizing these competing lines of precedent. I demonstrate that, in light of the consistency principle, an aggrieved heterosexual can bring a challenge to such a policy and seek heightened equal protection scrutiny even though the Court has yet to establish heightened scrutiny for laws discriminating against gays and lesbians.
I conclude that such a harmonization of the Court’s equal protection precedents will reinvigorate the Court’s moribund precedents for identifying new suspect and quasi-suspect classes. Moreover, I conclude that announcing heightened scrutiny in such a case would present a particularly appealing vehicle to the Court’s center, represented by Justice Kennedy, whose jurisprudence demonstrates both support for gay rights and hostility toward affirmative action policies.
Sunday, March 30, 2014
"Transgender Student in Maine May Use Bathroom that Matches Gender Identity - Are Co-Ed Bathrooms Next?"
The title of this post comes from this upcoming article, the abstract of which states:
This is an exciting time for the transgender rights movement. The law is increasingly forbidding discrimination based on gender identity and/or gender expression. As a result, transgender individuals are starting to win the right to use bathrooms that match their gender identity. Last summer, California’s governor signed a law that allows transgender youth to participate in sex-segregated sports, and use sex-segregated locker rooms and bathrooms in accordance with their gender identity. Also last summer, the Colorado Civil Rights Division became the first government body in the country to rule that a six-year-old transgender girl, born a boy, must be allowed to use the girls’ bathroom at her school. Less than two months ago, the high court in Maine became the first state court in the country to rule that a transgender student who was born a boy but identifies as a girl has the right to use the girls’ bathroom at school.
This Article will examine this new trend and discuss whether it could, and should, lead to co-ed bathrooms throughout the country. The Article will conclude that desegregating bathrooms would significantly alleviate harm currently caused to transgender individuals and others and that, furthermore, desegregated bathrooms are constitutionally required under the Equal Protection Guarantees contained within the United States Constitution.
Tuesday, January 28, 2014
By many accounts, last year was a banner year for same-sex marriage. The Supreme Court overturned the Defense of Marriage Act's (DOMA) definition of "marriage" as between a man and a woman in United States v. Windsor, and nine states extended marriage equality to same-sex couples. The beginning of 2014 has been matched by challenges to and debates over state constitutional bans on the practice--e.g. Arizona, Florida, Indiana, Missouri, Ohio, Utah, etc. Last week, Virginia AG Mark Herring announced his belief that the state's ban on same-sex marriage is unconsitutional, signaling its likely downfall.
Yet, same-sex marriage adovocates should remain cautious that such victories could "misconstrue justice," as described Yuvraj Joshi in The Trouble with Inclusion. According to Joshi, a new framework is needed to understand when the inclusion of previously excluded groups into societal institutions fails to produce just results--often because of misconceptions about the nature of the injustices faced by the excluded. Joshi writes:
Inclusion tends to focus solely or largely on the injustice that stems from exclusion and not to pay heed to other injustices. Such inclusion errs in assuming that the only or most serious injustice perpetrated by an institution is that it excludes members of a particular group, or that different injustices can be tackled simultaneously. Consequently, it is liable to leave intact the institutional framework generating those injustices.
Joshi focuses, in particular, on efforts to improve marriage and gender equality. The title of this post comes from his paper, the abstract of which states:
Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.
CRL&P related posts:
- School district rejects proposal for gay-straight club, faces another lawsuit
- Windsor as the end of federalist minimalism in LGBT litigation?
- Six months after Dallas council’s heated gay-rights discussion, the subject will return to the horseshoe
Monday, January 27, 2014
Last week, the Bureau of Justice Statistics (BJS) released this three year survey finding that the number of inmates reporting sexual abuse by prison and jail staff is growing--up more than 10 percent since its last survey. Of course, increased reporting could be the result of other systemic factors unrelated to the actual frequency of such crimes by correctional officers--e.g. improved complaint procedures and education about inmates' rights. But, as ProPublica's Joaquin Sapien reports, the survey's findings cast doubt as to the true efficacy of alerting correctional officers of allegations of sexual abuse--which, in turn, raises questions as to the likelihood that inmates would expose themselves to reporting processes quite possibly operated by those whose abuse caused the need for reporting in the first place. The title of this post comes from that report, which explains:
[E]ven in the rare cases where there is enough evidence to prove that sexual abuse occurred, and that a correctional officer is responsible for it, the perpetrator rarely faces prosecution. While most prison staff shown to be involved in sexual misconduct lost their jobs, fewer than half were referred for prosecution, and only 1 percent ultimately got convicted.
Roughly one-third of staff caught abusing prisoners are allowed to resign before the investigation comes to a close, the report concludes, meaning there’s no public record of what exactly transpired and nothing preventing them from getting a similar job at another facility.
“These findings point to a level of impunity in our prisons and jails that is simply unacceptable,” said Lovisa Stannow, Executive Director of Just Detention International, a prisoner advocacy group in California. “When corrections agencies don’t punish or choose to ignore sexual abuse committed by staff members— people who are paid by our tax dollars to keep inmates safe— they support criminal behavior.”
The lack of punishment may deter inmates from reporting. When the Justice Department has surveyed inmates directly, as opposed to the administrators that oversee them, the reports of abuse have been far greater. A 2013 survey estimated that more than 80,000 prisoners had been sexually victimized by fellow inmates or staff over a two-year period, roughly five times the rate reported by administrators.
“Inmates don’t report because of the way the institution handles these complaints: they’re afraid if they do report, then the staff will retaliate,” said Kim Shayo Buchanan, a law professor at the University of Southern California who studies the issue. “Even if you report and they believe you, which they probably won’t, the most likely thing to happen is that the person will be suspended or maybe fired.”
Calls for comment to the Federal Bureau of Prisons and the Association of State Correctional Administrators weren’t immediately returned.
CRL&P related posts:
- The Normativity of Using Prison to Control Hate Speech: The Hollowness of Waldron's Harm Theory
- Community based-mediation between youth offenders and their victims?
- There's an alarming number of deaths in US jails
- Imprisonment and Disenfranchisement of Disconnected Low-Income Men
- South Carolina Is Still Defending Its Neglectful Prisons
Thursday, January 16, 2014
The New York Court of Appeals heard oral arguments yesterday in a case to decide whether a confession is coerced when it results from information obtained through a criminal homicide suspect's response to lies told by police, and thereby violates the constitutions of New York and the United States. The state appellate courts below split on the issue, as this ABA Journal article explains:
Two cases were before the justices, the New York Times and the Associated Press report. In both, police said doctors needed the suspects’ help to save the victims, who were already declared dead. At issue is whether the police lies were coercive, making the confessions inadmissible.
In one case, police in Troy, N.Y., told several lies to Adrian Thomas before he said he had thrown his infant son onto his bed three times, and the boy hit his head accidentally.
Thomas was questioned by police after the baby was hospitalized for pneumonia and an infection, and X-rays showed head trauma, the stories say. Police told Thomas 67 times that the injury was an accident, and said he would not be arrested. They said Thomas’ wife would be scooped up if he did not confess to abuse, spurring Thomas to tell police he would “take the rap.” Another time police said the baby would die if Thomas did not help doctors by telling them how he hurt the boy; the child was already brain dead at the time. Thomas was convicted of depraved indifference and was sentenced to 25 years to life in prison. An appeals court upheld the conviction.
In the second case, police in New Rochelle, N.Y., told Paul Aveni that doctors needed to know what drugs his girlfriend had taken so they could revive her. The girlfriend was already dead at the time. Aveni told police he had injected the woman with heroin and had given her Xanax. Aveni was convicted of criminally negligent homicide. His conviction was overturned by an appeals court.
Friday, January 3, 2014
The Eureka County, California school district has a problem, according to a recently filed lawsuit by the ACLU. The lawsuit alleges that the district has intentionally discriminated against minority students by ignoring repeated physical and verbal abuse by teachers and other students. According to this North Coast Journal article, the lawsuit alleges that "a teacher once told students that 'black people get bored easily' and ordered a teenage girl, 'Don't give me your black attitude[.]'" It further reports:
[Native American cultural] history is neither understood nor respected in Loleta or Eureka, according to the complaints. Last spring at Eureka High, Alexis R.'s history teacher asked students in her class to raise their hands if they were Native American, according to the lawsuit against the district. When Alexis R., who is Yurok, raised her hand, the teacher allegedly asked her to explain the 1860 massacre on Indian Island in Humboldt Bay, which was perpetrated on an entirely different tribe, the Wiyot.
Another Eureka High teacher allegedly "had her history students 'make up' different Native American tribes and then pretend to fight each other" because, according to her, "this was how Native Americans traditionally resolved conflict between their communities," the lawsuit states.
The suit also claims that Eureka City Schools administrators have "routinely" refused to excuse Alexis' absence "to participate in vitally important Yurok cultural activities, including community brush dances, funerals, and salmon fishing."
The superintendent claims that parents have not complained about discrimination prior to this lawsuit, which, of course, is contested by the plaintiffs who apparently have documented many such complaints made to school administrators. He further asserts that parents failed to follow the official complaint process, the details of which are displayed in all classrooms.
In any case, schools assume some of the responsibilities of parents during the school day. In Vernonia Sch. Dist. v. Acton, the Supreme Court said, "When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmaster is the very prototype of that status." In this role, administrators' utmost concern must be the students. As such, administrators ought not be justified in dismissing parents' complaints simply because of minor procedural deficiencies; by doing so, administrators ludicrously neglect the duty to protect students for whom they have assumed responsibility. If their role can be shirked so easily, perhaps its time to rethink the deference commonly given to them by courts.
This is not about demanding more from school districts, its about demanding the bare minimum.
The article begins:
Brianna sits at her kitchen table, surrounded by manila folders spilling notes she's taken about her struggles with the staff and administrators of Zane Middle School over the treatment of her 13-year-old daughter Jessica.
"This is not a black or a white thing," says the lanky, kind-eyed single mom who works full time, coaches her daughter's volleyball team and says she never expected to be a plaintiff in a discrimination lawsuit against her daughter's school district.
The notes document a year and a half of merciless bullying — students calling Jessica "nigger," "hooker" and "whore," shoving her head inside a locker, smearing her face with makeup and tripping her in the hallway. Calendars made with Excel spreadsheets and printed on computer paper are filled with notes about emails sent, phone calls made and meetings attended as Brianna tried to get the harassment to stop. Eventually she came to the conclusion that it wasn't going to stop because the school's administrators simply weren't taking the problem seriously.
So Brianna started working with the American Civil Liberties Union of Northern California, which began investigating racism and sexism at Eureka City Schools about a year ago following a call to its complaint hotline from a grandma who was desperate to help her bullied grandson.
On Dec. 18, the ACLU, in conjunction with the National Center for Youth Law, filed a federal civil rights lawsuit alleging "years of intentional discrimination" by the Eureka City Schools District, discrimination based on students' race, sex and disability status. In a 51-page complaint submitted to the U.S. District Court in San Francisco, lawyers for the two groups outline "a racially and sexually hostile environment" at the district's schools, which include four elementary schools, two middle schools and two high schools. The suit alleges that staff and administrators discipline minority students more harshly than white students, make racially ignorant and sexually offensive comments in class, offer curriculum that affronts or ignores cultural history, and fail to prevent widespread racial and sexual bullying.
CRL&P related posts:
- Teens talk about ACLU suit over school drug test policy
- Third Circuit finds middle schoolers’ “I ♥ boobies” bracelets protected by First Amendment
Thursday, December 26, 2013
Homeless people are no longer welcome in Los Angeles’ Union Station, according to this article in The Los Angeles Times. More than one hundred homeless people had previously used the station each night, but Los Angeles County’s new policy restricts access to ticketed passengers only--ostensibly because of concerns over safety and public health. As The Times reports:
Last summer, an average of 135 homeless people a night were gathering inside the terminal, commandeering bathrooms, sprawling across seats and intimidating customers with aggressive panhandling, MTA officials said.
"We were getting a lot of complaints. Our clientele isn't particularly well-heeled," said Ken Pratt, director of Los Angeles Union Station Property Management for the MTA. "They were being prevented from using the terminal."
The move comes as the agency has embarked on a major renovation of the station. Some downtown residents say the seat closure is pushing people with nowhere else to go out into the cold.
"It seems really unfair that they're not allowed to come in to get warm," said Clare Holzer, an artist who lives in downtown's historic core.
The new policy highlights the difficult considerations that affect public policy decisions relating to the issue of homelessness, and it raises questions as to the rights of homeless people to occupy public places.
In 2012, Democratic Rep. Tom Ammiano introduced into the California General Assembly a Homeless Bill of Rights (A.B. 5). Among other things, the bill would preserve the rights of homeless people to use public spaces; it would ensure their right to legal counsel; and, it would protect employees who assist them from retaliation from their employers. It also would provide civil remedies for violation of the act.
Although it passed the Judiciary Committee last April, the Committee on Appropriations has yet to act upon it. It is expected to come up in January 2014.
Friday, December 20, 2013
UConn womens hockey player claims among other things that she was dismissed from the team after she reported that she had been raped by a male hockey player; and, she now joins four other women in their lawsuit against the university for violations of their civil rights under Title IX. The most recent allegations raise questions about the basic decency of the officials involved, so it will be interesting to watch this story develop--and, how and when UConn finally responds. The article begins:
The woman alleges in the amended complaint filed Friday that she was raped by a male hockey player in August 2011. She said that after reporting the assault to school officials, she was advised to transfer and kicked off the women's hockey team by her coach, who told her she was not "stable enough" and would "bring the team down."
The woman's attorney, Gloria Allred, alleges officials did not investigate her removal from the team, didn't advise her she could stay in school, and didn't tell her she had the option to call police or pursue a complaint with the school that could lead to a hearing.
"They did not ask for the identity of her rapist," she wrote.
The school declined to comment on the new allegations. University attorney Richard Orr said there has been an internal review of the allegations by the four women that originally brought the suit on Nov. 1 and the school will respond "at the appropriate time and in the appropriate forum."
Sunday, December 8, 2013
In this upcoming article, Professor Nancy C. Marcus argues that the Supreme Court's decision in United States v. Windsor--in which the Court struck down the interpretation of section 3 of the Defense of Marriage Act's (DOMA) use of "marriage" and "spouse" as applying only to heterosexual couples--landed a fatal blow to federalist minimalism with regard to marriage equality and LGBT- rights litigation. According to Marcus, the Windsor Court rejected "federalist-based marriage discrimination" and instead contributed to the "growing foundation of equal liberty jurisprudence." Here's the abstract:
Things are not always as they seem. The adage, “if it walks like a duck and quacks like a duck, it must be a duck,” is far from a fail-proof test, as seen from its earlier days, when the “duck test” was reportedly used to persecute suspected Communists during the McCarthy Era. Today, I propose, the “duck test” is just as fallible when applied to the Supreme Court’s latest LGBT rights opinion, United States v. Windsor, which struck down Section 3 of the federal Defense of Marriage Act as unconstitutional. Where duck = federalism, I suggest that, while Windsor was widely expected to be a federalist decision, and was interpreted as a federalist decision by some after its release, upon closer examination, Windsor is not a federalist duck at all, but is, rather, a swan song for federalist-based marriage discrimination.
This article traces federalist-based advocacy for marriage equality to the late twentieth-century minimalist movement, viewed the judiciary pessimistically as an ineffective agent of social change, and urged that if civil rights litigators must turn to the courts for social justice in politically controversial areas, they stick to unambitious and narrow arguments. Even after the Supreme Court’s LGBT-rights decisions Romer v. Evans and Lawrence v. Texas, minimalists discouraged LGBT-rights litigation. Similarly, as DOMA challenges became inevitable, there was a push to frame constitutional challenges in terms of federalism, which was viewed as more strategically prudent than broader individual rights arguments. Even after Windsor was decided on broad substantive due process and equal protection grounds, rather than on Tenth Amendment federalism grounds, some persisted in reading it as a federalist opinion, influenced in that reading by the minimalist movement.
The article explains both why backlash-fearing minimalists were wrong about the success of LGBT marriage equality, and why the reading of Windsor as a federalist decision is erroneous. The article describes how minimalist forecasts of doom for LGBT rights litigation have been proven wrong through successes in courts, legislative battles, and public opinion polls. The article details an evolution from backlash-fearing minimalism to a renewed faith in the courts serving an important role, along with legislative and educational measures, in the protection of fundamental and equal rights. Finally, examining Justice Kennedy’s majority opinion in Windsor in more detail, I explore different ways to interpret the strategic placement of its federalism discussion side-by-side with a Loving v. Virginia citation, for example. I offer that on the one hand, the opinion may be read cynically as rhetorical maneuvering, not unlike other historic examples of such strategic artifice used to co-opt the arguments of one’s opposition. On the other hand, however, I suggest that Windsor, as with past opinions, represents a principled, deliberate foundation building, which adds a layer of a growing foundation of equal liberty jurisprudence, established with doctrinal integrity to ensure greater protections for individual rights over time.
CRL&P related posts:
- Democracy and renewed distrust: Equal protection and the evolving judicial conception of politics
- How Marriage Inequality Prompts Gay Partners to Adopt One Another
- New Jersey court ruling another blow to gay conversion therapies
- Restroom battles emerge in transgender rights cases
Saturday, December 7, 2013
In The Constitutional Structure of Voting Rights Enforcement, Professor Franita Tolson argues that by viewing Congress's authority under section 5 of the Fourteenth Amendment in the context of section 2 of the amendment, Congress's authority to regulate voting and elections is broader than the preclearance requirement of the Voting Rights Act (VRA). Such reconsideration suggests that the preclearance requirement is within Congress's section 5 enforcement authority. Here's the abstract:
Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments, but in answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Section 2, with its low threshold for violations (i.e., abridgment on almost any grounds) that trigger a relatively extreme penalty (reduced representation), illustrates the proper means/ends fit for congressional legislation passed pursuant to section 5 to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical links between the Fourteenth and Fifteenth Amendments, links that provide a broad basis for Congress to regulate state and federal elections. Contrary to the Supreme Court’s recent decision in Shelby County v. Holder, this Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and thus is consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.
CRL&P related posts:
- Democracy and renewed distrust: Equal protection and the evolving judicial conception of politics
- Remembering Tinker: The right to vote as expressive conduct
- Felon disenfranchisement, political power, and the First Amendment right to vote
- A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
- Facebook "like" and First Amendment protection for the right to vote
- Atlantic correspondent Ornstein calls for a constitutional right to vote
Thursday, December 5, 2013
The title of this post comes from a fascinating case in West Virginia, in which a judge hearing a civil rights case is alleged to have violated the plaintiff's civil rights. Here's how it begins:
The plaintiff in a civil rights lawsuit is urging a federal judge to follow Kanawha County Circuit Court Judge Tod Kaufman’s lead and deny a motion to dismiss recently filed by former Mingo Circuit Judge Michael Thornsbury.
Robert Woodruff made the argument on Dec. 2 in his lawsuit against Thornsbury, who is alleged to have attempted to violate his civil rights in an effort to woo Woodruff’s wife. Thornsbury is awaiting sentencing following pleading guilty to depriving another man of his civil rights.
Thornsbury alleged he wasn’t properly served with complaints filed by Woodruff and his wife Kim. Kaufman recently ruled against Thornsbury on the matter in Kim’s lawsuit.
“Defendant Thornsbury had lived at the address where service was made and was known to live there up until two days before service was affected,” Kaufman ruled.
“Defendant’s wife still lived in the house and obviously sought to avoid service of process.
“Defendant or Defendant’s wife made the effort to obfuscate proper service by filing a complaint with the postmaster. Defendant obviously had and has ‘actual notice.’”
Woodruff was referred to as R.W. in an indictment filed against Thornsbury by U.S. Attorney Booth Goodwin. On Oct. 2, Thornsbury pleaded guilty to charges in an information alleging a second scheme and resigned. He faces a maximum penalty of 10 years imprisonment.
The title of this post come from this article arguing that the Court has become less deferential towards legislative efforts to protect the equal protection rights of minorities. According to the author, this change is the result of both shifting views about the political power of minorities and an acceptance of public choice theory. Here's the abstract:
Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.
What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.
I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.
If this argument is correct, this shift towards a less deferemtial standard conflicts with its decision in Crawford v. Marion Co. Election Bd., in which the Court demonstrated incredible deference towards a state legislature's authority to enact election laws. 553 U.S. 181 (2008). In Crawford, even though it acknowledged that the state had not shown the existence of voter fraud, the Court accepted the state's explanation that the voter ID law was needed in order to prevent such fraud (even though opponents had argued that the law would negatively impact minorities). ("The only kind of voter fraud that [the law] addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indian at any time in its history."). Indeed, writing for the Court, Justice Stevens claimed that the justifications offered in support of the law were "valid" and "sufficiently strong" to uphold its constitutionality.
CRL&P related posts:
- Remembering Tinker: The right to vote as expressive conduct
- Facebook "like" and First Amendment protection for the right to vote
- Felon disenfranchisement, political power, and the First Amendment right to vote
- A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
- Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
- Should elderly judges be forced to retire?
Tuesday, November 26, 2013
The title of this post comes from this Raw Story article reporting that a New Mexico corrections officer used cruel and unusual punishment when she allegedly sprayed mace on an arrestee's genitals. Here's the story:
Last week, the American Civil Liberties Union of New Mexico filed a federal lawsuit on behalf of Marlene Tapia against Blanca Zapater, the corrections officer that Tapia alleges subjected her to cruel and unusual punishment while violating her right to due process.
According to the suit, on November 22, 2011, Zapater was arrested on a suspected parole violation. During a routine strip search, Zapater and another corrections officer “observed a plastic baggie protruding from Ms. Tapia’s vagina.”
Instead of asking her to remove the package, Zapater allegedly “sprayed a chemical agent directly on Ms. Tapia’s genitals twice,” despite the fact that “Ms. Tapia was not using or attempting to use any force against the corrections officers.”
The suit claims that this spraying “served no purpose other than to punish” and “would not cause the baggie to become dislodged.” The effects of the application of this chemical agent lasted for several weeks and included “burning, swollen genitals, painful urination, and pain and burning on Ms. Tapia’s face.”
The ACLU is seeking punitive damages, to be determined by a jury, for these alleged violations of Tapia’s Eighth and Fourteenth Amendment rights.
(h/t Jonathan Turley)
Monday, November 25, 2013
Texas officials worry that new voter ID law could cause significant problems in higher-turnout elections; and, county officials in Alabama ask for more workers to deal with new voter ID law.
Excessive force lawsuit costs Los Angeles County $1.6 milliion.
Sunday, November 24, 2013
NSA director doesn't really want to give the FBI and DEA access to surveillance data.
Federal appeals court upholds ruling requiring changes to NYC's stop-and-frisk policy.
Decades-long civil rights dispute over Little Rock schools could be nearing its conclusion.
Federal lawsuit over the use of Tasers by prison guards alleges 'callous and sadistic' constitutional violations.
Atlantic City PD face another civil rights suit alleging excessive force.
November 24, 2013 in 14th Amendment, Abortion, Civil Rights Litigation, Department of Justice, Equal Protection Clause, Excessive Force, Fourth Amendment, Prisons and Prisoners, Stop-and-frisk, Theories of Punishment | Permalink | Comments (0)
Friday, November 22, 2013
Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
The title of this post comes from this intriguing article challenging the current lack of safeguards against discrimination in death penalty proceedings. Here's the abstract:
Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.
Death is different as a punishment. But does discrimination change from context to context? That is the message courts send when discrimination is judged differently based on the context, despite the United States Supreme Court’s “insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” No equivalent safeguards exist in criminal law outside of jury venire to protect against discrimination as there are in civil law. Congress and state legislatures have tried to pass legislation often called “Racial Justice Acts” to provide additional safeguards with little to no success. With the legislature’s lack of success in addressing the problem, the only opportunity to address discrimination claims may be judicially.
Monday, November 18, 2013
SCOTUS will not hear privacy group's challenge to NSA's collection of telephone information from Verizon customers; however, two lower courts will hear challenges to NSA's program; and, The New Republic explains how German support for granting asylum to Snowden could have an impact in NYC.
Federal judge schedules case over Texas's voter ID law for September 2014; another federal judge hears closing arguments in the case over Wisconsin's voter ID law; Alabama's voter ID law will be enforced; and the Atlanta Daily World says black voting rights are at a crossroads.
Muslim woman files a civil rights lawsuit alleging that co-workers at The New School in NYC harassed and discriminated against her.
Iowa Supreme Court decides to allow a man wrongfully convicted of sexual abuse to proceed with his wrongful imprisonment claim.
Texas school district will allow a picture in the school's yearbook of a transgender teen dressed in a tuxedo.
Cheney sisters spar over same-sex marriage on Facebook.
Friday, November 15, 2013
Ten homeless people file civil rights lawsuit to keep city from evicting them from a local landfill.
NYC's stop-and-frisk policy results in conviction in just 3 percent of cases.*
Disabled man sues city under ADA for right to keep his service dog--a pit bull.
California judge rejects challenge to local ordinance banning the use of 'sign waver' advertisements.
Pennsylvania judge rejects request to block challenge to the state law banning recognition of same-sex marriages; Hawaii judge upholds state's new same-sex marriage law; and, transgender woman's employment discrimination case is tossed.
Jimmy Carter says the U.S. should abolish the death penalty.
* Correction: A helpful reader observed that the second link above was incorrect. It previously stated that New York City's stop-and-frisk policy leads to sentences of 30 days or more in just 1.5 percent of the cases, but the rate is actually much lower than that. In fact, the AG's report states on page 3:
Less than one in seventeen SQF arrests, or 0.3% of stops, resulted in sentences of more than 30 days of imprisonment.
Saturday, November 9, 2013
The title of this post comes from this article about a gun owner who was shot by sheriff's deputies when he stepped outside his cousin's home with his gun to investigate the noises he had heard. As the Courtroom News Service reported at the time, he filed a lawsuit against the sheriff's department:
He seeks punitive damages for excessive force, unwarranted use of deadly force, illegal search and entry, illegal seizure, racial discrimination, assault, battery, negligence and due process violations.
The sheriff's office asserted qualified immunity because of their belief that the man had been armed, but the judge rejected that claim.
The parties dispute whether the plaintiff actually had fired a shot after he stepped outside.
The article begins:
Sheriff's deputies must face claims related to their shooting of a man who heard possible intruders outside his home and stepped out with a gun to investigate, the 4th Circuit ruled.
The decision notes that George Cooper Sr. had been at the mobile home of his cousin, Paul Herring, on May 2, 2007, in rural Leland, N.C., after they spent the better part of the day repairing the floor of a nearby relative's home.
Before dinner, the men relaxed in Cooper's backyard, "talking about '[f]ootball games [and] old fights," Judge Robert King wrote for the three-judge appellate panel.
"Cooper may have enjoyed the mid-spring evening a little too much, smoking marijuana laced with cocaine, and chasing 'three or four beers' with a pint of Brandy," he added.
It was just after 11 p.m. when a neighbor called 911 to report that an altercation was occurring on Cooper's property. The dispatchers then related the call to Brunswick County Sheriff's deputies James Sheehan and Brian Carlisle.
Authorities in New Mexico face another lawsuit over allegedly illegal body-cavity searches, as do police in Milwaukee.
Medical marijuana distributor files a civil rights lawsuit alleging that authorities targeted him for his "outspoken advocacy" of local taxation of medical marijuana.
Same-sex marriage will be legal in Hawaii when the governor signs legalization bill into law later this week.
Guardian editor will face questioning by British lawmakers for publication of NSA leaks.
3-D printer makes gun, raises production concerns.
Friday, November 8, 2013
Last month, CRL&P noted this story about a woman who had been forcibly strip-searched by four prison gaurds in LaSalle County, Illinois. The woman filed a lawsuit alleging that the forcible search violated her civil rights and Illinois law. She claimed that the guards did not have "reasonable belief" that she possessed contraband or weapons as required in Illinois; and, she alleged that three male guards participated in the search in violation of Illinois' law requiring strip-searches to be performed by guards of the same sex as the arrestee (a claim supported by surveillance video of the incident).
The woman's attorney has since filed a separate class-action suit against LaSalle County, the sheriff, and several sheriff's officers. According to The Chicago Tribune, "The class-action suit against LaSalle County...claims the four named plaintiffs...were either forcibly stripped or made to take their clothes off and then made to stay in cells without bathrooms for several hours. There, they were ordered to urinate and defecate in a drain on the floor of the cell, and in some of the cases not given toilet paper, the suit claims."
The Tribune also reports:
The new lawsuit, filed Thursday, claims that in addition to forcibly stripping three female arrestees and one man brought to the jail in a civil matter, the four were forced to stay in their cells for several hours without access to a bathroom.
The suit also claims one of the women was denied medication for diabetes and denied food she was capable of eating based on her medical condition.
"This abusive and humiliating treatment has been, and continues to be, a regular and common practice in the LaSalle County Jail as a means of illegally punishing arrestees," the lawsuit reads.
LaSalle County officials could not be reached Thursday night for comment but previously said that County Jail guards did nothing wrong in the incident involving Holmes.
Wednesday, November 6, 2013
Supreme Court scheduled to hear arguments over the constitutionality of prayer at public meetings.
Federal judge rules that protesters may occupy state property indefinitely.
Advocates likely to start pushing for adoption rights for LGBT couples.
Does ENDA support demonstrates the evolution of the GOP on LGBT issues?
AG Holder continues advocacy for criminal justice reform at prisoner reentry group's event.
Monday, November 4, 2013
The title of this post comes from this recent article arguing that the Supreme Court's decision in Shelby County v. Holder invalidating sections 4(b) and 5 of the Voting Rights Act furthered Dr. Martin Luther King's yet unfulfilled vision of racial equality. Here is the abstract:
In a year when we mark the 50th anniversary of Martin Luther King’s “I Have a Dream” speech, civil rights leaders and elected officials bemoan what they consider to be a huge setback in the fight for racial equality: the Supreme Court’s recent decision in Shelby County v. Holder. You could thus be forgiven for thinking that Shelby County means that racial minorities are now disenfranchised. But all the court did was ease out an emergency provision enacted in 1965 to provide temporary federal oversight of state elections based on that era’s racial disparities. While politicians and pundits irresponsibly liken the ruling to sanctioning Bull Connor’s dogs, it actually shows the strength of our protections for voting rights.
What the Supreme Court struck down was Section 4(b) of the Voting Rights Act, which is the “coverage formula” used to apply Section 5, a provision requiring certain jurisdictions to “preclear” with the federal government any changes in election regulations. The Court found that this formula was unconstitutional because it was based on 40-year-old data, such that the states and localities subject to preclearance no longer corresponded to incidence of racial discrimination in voting. Indeed, black voter registration and turnout is consistently higher in the formerly covered jurisdictions than in the rest of the country.
Just as the Court was correct in 1966 to approve the constitutional deviation that preclearance represents as an “uncommon” remedy to the “exceptional conditions” in the Jim Crow South, it was correct now in restoring the constitutional order. As Justice Thomas wrote in another voting rights case four years ago, disabling Section 5 “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”
While Justice Ginsburg compared getting rid of Section 5 to “throwing away your umbrella in a rainstorm because you are not getting wet,” it’s actually more like stopping chemotherapy when the cancer is eradicated. There’s more to be done to achieve racial harmony in America, to be sure, but the best way to honor the heroes of 1963 is to build on their triumphs rather than pretend that we still live in their time.
Saturday, November 2, 2013
The title of this post comes from this article reporting that controversial Arizona sheriff Joe Arpaio will fight a recent order by a federal judge threatening his decision-making authority by requiring oversight of him and his department. Here's the article:
Attorneys for hard-line Arizona sheriff Joe Arpaio will appeal a judge's ruling ordering the appointment of a monitor to ensure that his officers no longer use racial profiling, especially of Latinos, in their efforts to crack down on undocumented immigrants.
A federal judge in May ordered the Maricopa County sheriff to stop using race when making law enforcement decisions, in response to a lawsuit that tested whether police could target unauthorized immigrants without profiling U.S. citizens and legally resident Hispanics.
On Oct. 2, U.S. District Court Judge Murray Snow ordered parties in the case to agree on the selection of an independent monitor within 60 days to oversee the work of the 81-year-old lawman, who styles himself as "America's toughest sheriff." In addition, he mandated other steps be taken, including appointing a community advisory board.
Wednesday, October 30, 2013
In a few days, New Yorkers will vote on a referendum to amend the state constitution to raise the mandatory retirement age for some state judges. As The New York Times reports, "[I]t would raise the mandatory retirement age for State Supreme Court justices and Court of Appeals judges to 80. Currently, the State Supreme Court, a trial-level court, requires justices to leave at age 76; the Court of Appeals, the state’s highest court, has a cutoff at 70."
Proponents argue that the mandatory retirement age was adopted at a time when life expectancy was lower, and they note that other state officials are not forced into retirement. Chief Judge Judith Kaye calls the age restriction "bad public policy" because it forces "experienced judges [to] leave the bench when they are at the top of their game." She also says that raising the retirement age will keep skilled judges on the bench, and that these judges can be used to alleviate the pressure on lower courts with considerable backups.
Opponents, however, claim that the measure is flawed because lower court judges are not subject to the increase, and lower courts are under the most stress. "It leaves out lower-court judges," reports The Times, and they "make up about three-quarters of the 1,259 jurists in the state. These judges would still be compelled to step down at 70, yet they are the ones burdened with mountainous caseloads and backlogs."
Gov. Cuomo shares their concern, and his position has put him at odds with much of the state's legal establishment. But, the payoff might be worth it. As The Times observes:
If the amendment fails and he wins re-election next year, Mr. Cuomo will have a chance to replace four Republican judges in his second term, all appointed by Gov. George E. Pataki: Victoria Graffeo, Eugene F. Pigott Jr., Susan P. Read and Robert S. Smith. The amendment would extend the terms of Judge Pigott and Judge Smith.
The governor would also be able to name a new chief judge to replace Judge Lippman, who turns 70 in May 2015 and has butted heads with Mr. Cuomo over the judiciary budget. Passage of the would allow Judge Lippman to serve until 2023. Judge Lippman denied he wanted to extend his own time in office.
The bill he first proposed to the legislature did not include the Court of Appeals for that reason, he said. It was the Senate Republicans, led by Senator Dean G. Skelos, who added the high court to the mix, legislative aides said.
The Supreme Court addressed the constitutionality of mandatory retirement laws in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which it ruled inter alia that state judges are exempted from the Age Discrimination in Employment Act (ADEA). The question was whether state judges fall under the definition of "employee," which the ADEA says "shall not include...an appointee at the policy making level." Justice O'Connor authored the majority opinion, and she concluded:
We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included. This does not mean that the Act must mention judges explicitly, though it does. Rather, it must be plain to anyone reading the Act that it covers judges. In the context of a statute that plainly excludes most important state officials, "appointee on the policy making level" is sufficiently broad that we cannot conclude that the statute plainly covers appointed state judges. Therefore, it does not.
Justice Blackmun, joined by Justice Marshall, dissented by claiming that 1) the "structure and legislative history of the policymaker exclusion" inform the view that Congress did not intend for judges to be excluded; and, 2) that deference should be given to the EEOC's "reasonable construction" of the law.
The Court's decision was particularly interesting for its application of the Tenth Amendment and federalism concerns to invoke the plain statement rule, under which a federal law will be applied to state government activities only if Congress expressed a clear intent that the law have that effect. The Court concluded that Congress did not intend for the ADEA to apply to judges. Thus, states retained the authority to determine the qualifications for state judges.
Today, thirty-two states place mandatory-retirement restrictions upon at least some judges. Next week, New Yorkers will determine whether to amend the current restriction, but they appear unready to take that step. According to one poll from the Siena College Research Institute, New Yorkers oppose the amendment by a wide margin--71 to 27 percent.
While political realities render opposition understandable, New York's age restriction on some judges seems rather outdated. C.J. Kaye's claim that "the age limit has deprived the New York courts of great legal minds in their prime" might go too far, but judges over 70 likely have some good years left. If the amendment were to pass, the former restriction would be forgotten to history as fearful projections are usually mistaken ones.
While we wait for a decision, CRL&P knows of at least one state judge who ought to consider retirement.
Group pushing for state laws criminalizing revenge porn, but future efforts could be aimed at federal government.
Glenn Greenwald appeared on Anderson 360 last night to discuss the revelation that the NSA was spying on allies.
Woman sues Texas over ban on same-sex marriage.
NY Post claims former employee's allegations of a hostile work environment related to the controversial Obama/chimpanzee cartoon are trivial.
Monday, October 28, 2013
Sen. Paul believes abortion and scientific research might lead to eugenics, and a Texas judge finds certain limitations on abortion unconstitutional.
Sen. Reid says Senate will vote on bill to ban workplace discrimination on the basis of sexual orientation or gender identity by Thanksgiving.
DOJ will not prosecute guards from private prison for alleged criminal civil rights violations.
J. Posner: "The point I was making in my book in mentioning the Crawford case was not that the decision was right or wrong[.]"
All new FBI agents ordered to visit the Martin Luther King, Jr. Memorial to remind them of past abuses by the FBI and of their commitment to better practices in the present and future.
Parts of a new Texas abortion law, considered among the most restrictive in the country, are unconstitutional, a federal judge ruled Monday, one day before they were scheduled to take effect.
The lawsuit -- filed in U.S. District Court in Austin by Planned Parenthood on behalf of more than a dozen women's health care providers across Texas -- alleged the law violates the constitutional rights of women and puts unreasonable demands on doctors who perform abortions.
The lawsuit specifically targets requirements under the new law that doctors obtain admitting privileges at a local hospital, and usage controls on RU486 -- the so-called "morning after" pill.
U.S. District Judge Lee Yeakel struck down both provisions, handing abortion-rights groups a clear win.
High school student who dressed as a homeless man pursuant to an assignment gets suspended for failing to identify himself to school officials quickly enough.
Christian school allegedly required black student to attend spiritual retreat glorifying Confederate history and Confederate flag.
ACLU requests that ICE immediately desist arresting people arriving at the courthouse to pay traffic tickets.
New GPS tracking projectile allows police to attach GPS to vehicles reducing the risk of chases.
New report says President Obama did not know about NSA's surveillance of foreign leaders.
Sunday, October 27, 2013
The title of this post come from this article about the recent victory of two transgender individuals before the Iowa Civil Rights Commission. Although born as men, these two women will now be able to use women's restrooms in public places. The article states in part:
These cases, along with milestones such as the University of Northern Iowa's crowning of transgender student Steven Sanchez as its homecoming queen this month, bring visibility to a new set of rights issues in Iowa.
"Civil rights for black people didn't happen overnight, and it won't happen overnight for trans people, either," said Jodie Jones, an Iowa City transgender who won a dispute over whether she could use the women's restroom at the Johnson County Courthouse. "But I feel like we've moved the ball forward."
Judge dismisses false arrest lawsuit in which the wrong man was arrested and held in prison for five days before police realized their mistake.
Macy's now joined with Barney's in scandal over allegations that the businesses profiled black shoppers making expensive purchases and detained them, while Barney's vows to review its policies.
Wisconsin becomes latest state to consider enacting legislation criminalizing revenge porn.
Protesters marched in Washington on Saturday decrying the NSA's online surveillance program.
FBI investigates the recent killing by police of 13-year-old carrying a plastic gun.
Saturday, October 26, 2013
The Tennessee judge who independently changed a baby’s name from Messiah to Martin has been found to have violated Tennessee’s Judicial Code of Conduct. The judge ordered the name changed despite protests from both parents. According to the judge, “Messiah” can only be applied to the one who “earned” it, “and that one person is Jesus Christ.”
Rule 2.3(B) of the Judicial Code of Conduct states:
A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon…religion[.]
The judge’s action clearly violates the requirement of Rule 2.3. By requiring the name-change, the judge’s judicial opinion reflected her religious convictions, and her ordered required the parents’ compliance at the expense of their own beliefs.
Tthe Tennessee Constitution states "that no human authority, in any case whatever, control or interfere with the rights of conscience[.]" Art. 1, Sec. 3. Also, at a minimum, the Establishment Clause of First Amendment prevents coercive state action that compels adherence to a particular religious doctrine. The state has no authority to require religious observance, and requiring the baby’s parents to change their child’s name to meet the judge’s personal religious beliefs clearly does just that.
I’m not particularly familiar with available punishments for judicial misconduct, but this seems like a particularly egregious example that requires more than a meager scolding. To me, the judge's order calls her judgment into question. How can society expect fair and impartial rulings after such an obvious example of judicial disregard for the Tennessee Code of Conduct, the Tennessee Constitution, and the U.S. Constitution?
Sanctions against the judge are pending.
Notably, according to Reuters:
Messiah was the 387th most popular name for boys born in the United States in 2012, based on applications for Social Security cards filed with the U.S. Social Security Administration.
In all, there were 762 applications for boys named Messiah in 2012, more than double the 368 applications made in 2011, the Social Security Administration said.
Air Force Academy cadets no longer are required to recite "so help me God" in Honor Oath.
Illinois bill to impose mandatory minimums for illegal gun possession could be a win-win for Chicago mayor.
University of Pittsburgh Medical Center must wait to pursue civil rights lawsuit against the city and mayor for violation of due process in tax collection efforts.
Friday, October 25, 2013
Gun-rights advocates are planning to start collecting signatures in an attempt to recall California lawmakers who supported proposed gun regulations.
Greensborough police captain's civil rights lawsuit alleging discrimination by PD moved to federal court.
American Prospect argues that the Surpreme Court's reliance on two post-Reconstruction decisions have limited available remedies to victims of sexual assualt.
ACLU files amicus brief on behalf of secure email service provider facing contempt charges for failure to cooperate with U.S. government.
N.C. Attorney General and potential gubernatorial candidate speaks out on new voter ID law.
October 25, 2013 in 14th Amendment, Civil Rights Act, Civil Rights History, Civil Rights Litigation, Election Law, Equal Protection Clause, Fourth Amendment, Gun Policy, Right to Vote | Permalink | Comments (0)
In his upcoming article Snubbed Landmar: How United States v. Cruickshank Truncated the Reconsturction Amendments and Racialized Class Politics in America, Professor James Gray Pope argues that traditional narratives about the development of civil rights jurisprudence have failed to account for the precedential case that started it all: United States v. Cruikshank, 92 U.S. 546 (1876). According to Pope, the legal academy has created a "tale of progress" largely by ignoring Cruikshank's restriction on the Fourteenth Amendment's mandate to federal actions; its tailoring of the privileges and immunities clause; and, its limitation o the available protection of the Fourteenth and Fifteenth Amendments to racial minorities. "The results," argues Pope, "have been obfuscation and distortion." In fact, Cruikshank stymied "cross-racial movements" that might have led to a more promising futures. In the end, he urges: "It is long past time for this jurisprudentially inventive, politically pivotal, and socially schismatic case to take its proper place at the heart of the American constitutional narrative and pedagogical canon."
For those interested Supreme Court and civil rights history, this article provides valuable and intruiging insights that are well worth the time.
CRL&P related posts:
- Today in Civil Rights History: Decision in Civil Rights Cases announced
- New research suggests lynched teenager's innocence
- Today in Civil Rights History: Martin Luther King, Jr. wins Nobel Peace Prize
Wisconsin woman held in drug treatment center under fetal protection law challenges the law's constitutionality.
NRO's Reihan Salam says political reformers should focus on increasing party power.
Time raises questions about online reporting of sexual abuse.
Ohio Secretary of State says there's a need to cut down early voting hours.
Ohioans could be turning to Michigan abortion clinics as local ones close.
Columnist rejects argument for arming teachers and says its time to start holding partents of schoolhouse killers responsible as well.
And, a North Carolina Republican official resigns following racially-charged comments on Wednesday's The Daily Show.
Thursday, October 24, 2013
Civil rights group seeks meeting with Barney's CEO to discuss racial profiling allegations made by two shoppers who had been detained following expensive purchases.
ACLU files lawsuit to compel Missouri to disclose supplier of execution drugs.
BLT notes that federal court judge declined to dismiss former legal secretary's pregancy discrimination against firm.
Michael Steele discusses the institutional obstacles faced by HBCUs.
Michigan Gov. Rick Snyder dodges questions about his stance on extending civil rights to LGBT community.
Earlier this week, the Seventh Circuit Court of Appeals announced its decision in Billy Julian v. Sam Hanna, et. al., in which it reversed the district court's ruling that the plaintiff's 42 U.S.C. 1983 claim for malicious prosecution was not actionable because Indiana law provided adequate alternative remedies. Most circuits allow 1983 claims for malicious prosecution whether or not an available remedy exists under state law, but the Seventh Circuit is unique in this respect. Writing for majority, Judge Richard Posner explains: "We've held that a federal claim for malicious prosecution is actionable only if the state fails to provide an adequate alternative, whether called a claim of malicious prosecution or somethings else." The defendants claimed that tort remedies for false arrest and false imprisonment supplied adequate alternative remedies to those offered for malicious prosecution. Thus, the question was whether such alternatives were "adequate."
In this case, the plaintiff had been charged with arson, burglary, and attempted theft following a fire at a local public high school. He was sentenced to 15 years in prison. More than three years later, he was released after defense counsel presented evidence that one of the witnesses who had placed him at the crime scene had actually been at home on house arrest. But, he was not acquitted, and a retrial was scheduled in 2007. After repeated postponements, the charges were eventually dropped in 2010.
The plaintiff filed a lawsuit alleging malicious prosecution in violation of his right to due process under the Fourteenth Amendment against three Indiana police officers, the county sheriff, and the Town of Frankton, Ind. Specifically, one officer investigated the plaintiff "without lawful reason[.] Also, police officers coerced witnesses into accusing the plaintiff of starting the fire. According to the court, "The defendant officers knew the accusations were false--the officers had fabricated them and fed them to the witnesses."
The district court dismissed the plaintiff's claim on the grounds that state law provided an adequate alternative remedy, which foreclosed the plaintiff's section 1983 claim.
The Seventh Circuit reversed. The court held that available tort remedies for false arrest and false imprisonment are not adequate alternatives for malicious prosecutions claims. According to the court,
[Plaintiff] would be able to recover for those torts on the damages he sustained during the week or so that he was detained before being formally charged. These damages would be only a fraction of the total damages attributable to his malicious prosecution, for those damages accumulated over the entire period that began with his arrest and ended only when the charges against him were dismissed--a period of 9 years and 3 months. Throughout this period, when he was not actually in prison he was (or so he alleges, and quite plausibly) tormented by fear of being imprisoned or re-imprisoned and unable to obtain employment. (Internal citations omitted).
The court rejected the defendant's claim that Indiana law provides "no remedy for malicious prosecution by Indiana public officers, leaving the defendant remediless if he manages to avoid jail or prison for any of the time during which he's being maliciously prosecuted." According to the court: "Limbo is not as bad as hell, but it's sufficiently bad that it can't be written off completely." Because there was no adequate alternative remedy for the alleged civil rights violations, the plaintiff's section 1983 claim was actionable; the lower court decision was reversed.
The court remanded the case for further proceedings.
Wednesday, October 23, 2013
Andrew Cohen asks today at The Atlantic. Cohen reviews the N.J. Supreme Court's recent ruling in State v. Terrence Miller, a decision in which the court ruled that a criminal defendant's right to counsel under the 14th Amendment does not require very competent counsel. Cohen calls the court's decision "one of the most indefensible I have ever read." Here's how it begins:
Earlier this month, the New Jersey Supreme Court issued a ruling in a case that didn't generate much publicity in the Garden State or anywhere else. It was just another opinion, about another indigent criminal defendant whose case was processed through a justice system that was relentlessly more concerned with efficiency than with justice. Sadly, it's not big news today when our nation's judges permit a person's fair trial rights to be violated in a way that both shocks the conscience and violates the Constitution.
In State v. Terrence Miller, four justices of the state supreme court—over a lone dissent—affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial. The lawyer had not tried a criminal case in seven years and had been appointed to Miller's case only four days before trial. He never spoke to any witnesses, or to Miller's former attorney, or to investigators in the public defender's office. He didn't know what his client would say on the witness stand.
Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial. Twice, the trial judge refused the request even though there were other cases he could have tried during that time. He had his docket schedule to worry about, the judge said, and the case was not complex. The judge was frustrated, court records revealed, with the "higher ups" in the public defenders office. He thought they were trying to play him. Lost in the middle of this turf war was Miller. He bore the brunt of the judge's frustration.
To their credit, prosecutors did not oppose the adjournment, but of course they did not complain when it was denied by the judge. The trial proceeded. Miller never had a chance to present his best defense, whatever it was, and was quickly convicted. All of this, the state supreme court declared, satisfied the defendant's constitutional right to counsel first expressed in Gideon v. Wainwright. Miller, the court said, got a fair trial. His trial judge, the justices concluded, should have delayed the trial but did not "abuse his discretion" when he didn't.