Wednesday, October 26, 2016
Beginning in the 1990s, police departments in major American cities started aggressively deploying pedestrian stops and frisks in response to escalating violent crime rates. Today, high-volume use of “stop, question and frisk,” or “SQF,” is an acute point of friction between urban police and minority residents. In numerous cities, recent consent decrees or settlements have imposed Fourth Amendment and Equal Protections constraints on police. But do these constitutional rules adequately respond to the harms of SQF? This Article argues that the core moral objection to SQF does not track the Constitution’s focus upon the evidentiary sufficiency of stops or the racial animus of individual officers. I develop instead a new account of the distinctive wrong of aggressive street policing that is not contingent on individual animus or fault. This alternative account turns on the manner in which such policing can reproduce social and racial stratification. To substantiate this, I present a detailed analysis of the costs and benefits of SQF, with careful attention to its ecological spillovers and dynamic, intergenerational effects. Having explained why constitutional law, given its narrow transactional frame, is disarmed from an effective response, I present the alternative lens that is constitutionally and legally available for diagnosing harmful forms of urban street policing. This draws from the disparate impact framework of Title VI of the 1964 Civil Rights Act and certain states’ laws. While an imprecise fit, disparate impact is legally feasible and readily available. To show that it is workable, I sketch three lines of econometric analysis capable of identifying an especially troubling subclass of racial disparate impacts in urban street policing.
Tuesday, October 25, 2016
The title of this post comes from this recent piece by The Marshall Project's Andrew Cohen examining the controversial Alabama law that gives local election officials significant discretion to deny former felons the right to vote. Cohen explains:
Nearly six million Americans of voting age will be disenfranchised this election year because they’ve committed crimes. Some are still in prison, but nearly four million others have served their sentences and are trying to re-enter society, most hoping to become engaged members of their communities. A few states make it relatively easy for ex-offenders to register and vote following their release and the completion of their probation and parole. A few other states make it impossible. (Here’s a helpful chart to help you track your own state’s rules.)
Between the extremes lies Alabama, a state with a long history of racially-motivated criminal justice laws and policies. Some ex-offenders—murderers and rapists, for example—are permanently precluded from voting unless they are pardoned. And some released inmates may eventually be permitted to cast a ballot. It depends on whether a local election registrar determines that their crimes constituted “moral turpitude” under the state’s constitution. That term is defined so loosely under state law that different bureaucrats in different counties have come to different conclusions about who gets to vote and who doesn’t.
State officials have been aware for many years that there is a problem with the vague definition of “moral turpitude.” In 2005, the state attorney general issued an opinion which did little to correct the ambiguity. A crime of “moral turpitude,” the state’s chief law enforcement official concluded, is “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general.” The determination in any given case on whether to allow an ex-offender to register to vote, the attorney general wrote, rests with the “moral standards” of the decision maker—i.e. each county’s registrar.
What crimes the attorney did identify in 2005 as immoral, moreover, did not necessarily match up with the definitions of those crimes under Alabama’s statutes. For example, it is unclear whether crimes involving the possession of drugs constitute “moral turpitude.” In 2007, the state’s court administration office tried also to better define crimes of “moral turpitude” but ended with a list of 70 felonies that did not match the attorney general’s list issued two years earlier. The state legislature, meanwhile, has remained silent on the issue since then despite repeated calls for more clarity.
The standard is so chaotic that it was challenged last month in federal court in a voting rights case now pending in the Middle District of Alabama. The complaint—Thompson v. Alabama—seeks class action status for Alabama residents disenfranchised by the law, alleging that it is unconstitutional under what’s left of the Voting Rights Act. The plaintiffs want a ruling that enjoins Alabama officials from barring any ex-offenders from voting on the basis of their past felony convictions—or their inability to pay “any legal financial obligations” as a result of their incarceration. The complaint, in other words, seeks a repudiation of the state’s felony disenfranchisement law.
The complaint relays disturbing stories of people with past felony convictions that have been denied the right to vote, several of which Cohen effectively summarizes in this piece. One plaintiff, for example, had voted in 2008 and 2012 but the county in which she had registered recently withdrew her right to vote because of her 1997 theft conviction--a crime for which she received no prison time.
Felon disenfrachisement laws rely on dubious reasoning to begin with, but granting local election officials such broad authority to determine the degree of "moral turpitude" involved in a particular crime invites ridiculous determinations like those alleged in the complaint. Alabama should get rid of its disenfranchisement law toot sweet, but failing that the legislature should at least come up with a list of crimes to which the state's constitutional standard ought to apply.
Wednesday, October 12, 2016
What happens when local government policies run head-on into federal civil rights laws? Nowhere does this question assume greater importance than with land use and fair housing, yet in the nearly half-century since the passage of the Fair Housing Act (FHA), courts and commentators have skirted the question. With the Supreme Court’s recent decision in Inclusive Communities Project v. Texas, the most significant fair housing decision in the nation’s history, they can no longer do so. This Article represents the first sustained effort to show how the FHA affects land use, the most important power that cities have under American localism. The Supreme Court held for the first time that the FHA allows disparate impact liability, and outlined when such disparate impact cases can be brought. But it left many crucial questions unanswered, and this Article attempts to fill the gap. It concludes that when cities restrict affordable and multifamily housing, which often has a disparate impact on people of color, zoning ordinances must withstand intermediate scrutiny in order to be sustained. Courts must balance local policies with demands for inclusion: sometimes those policies will triumph, but in many instances they will not, for they rest on weak empirical or legal foundations, or they can be addressed in less restrictive ways. The Article sets forth a series of the most common scenarios and justifications for exclusionary zoning, and seeks to show that such justifications have far less purchase than is commonly supposed. The FHA comes nowhere close to abolishing zoning, but it does insist that local zoning must no longer exclude racial minorities, and the Court’s decision makes clear how fair housing advocates can and should use the law to fight such exclusion. If localities no longer have the discretion to exclude people of color, then that is the price of equality.
Tuesday, October 11, 2016
"From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence"
2014 to 2016 likely will go down as a significant if not watershed moment in the history of U.S. race relations. Police killing of African Americans has engendered further conversations about race and policing. Yet, in most of the discussions about these tragic deaths, little attention has been paid to a significant dimension of the police violence problem: the legalization of racial profiling in Fourth Amendment law. This legalization of racial profiling is not a sideline or peripheral feature of Fourth Amendment law. It is embedded in the analytical structure of the doctrine in ways that enable police officers to force engagements with African Americans with little or no basis. The frequency of these engagements exposes African Americans not only to the violence of ongoing police surveillance, contact, and social control but also to the violence of serious bodily injury and death. Which is to say, Fourth Amendment law facilitates the space between stopping black people and killing black people. This Article demonstrates precisely how by employing a series of hypotheticals to reveal the ways in which the extraordinary violence police officers often use against Africans Americans can grow out of the ordinary police interactions Fourth Amendment law empowers police officers to stage.
Wednesday, August 31, 2016
In recent years, courts have been called on to adjudicate a new series of cases involving vote denial — practices that prevent individuals from casting a ballot or having that ballot counted. The upsurge in cases claiming vote denial (as opposed to vote dilution) is the product of a confluence of forces. The Voting Rights Act’s preclearance regime, which had significantly prevented new forms of vote denial in covered jurisdictions effectively disappeared after the Supreme Court’s 2013 decision in Shelby County v. Holder. And increased partisan polarization, combined with politicians’ views about the relationship between turnout and election results led Republican-dominated legislatures to impose new restrictions and to cut back on expansions previously implemented by Democrats.
How should courts analyze these claims under the Voting Rights Act? Recently, the courts have appeals have begun to coalesce on a two-part framework: First, the challenged practice “must impose a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’” Second, “that burden ‘must in part be caused by or linked to “social and historical conditions” that have or currently produce discrimination against members of the protected class.’” But they continue to recognize that their inquiry must be shaped by the statute’s totality of the circumstances requirement and show be informed by a series of factors laid out by the Supreme Court and Congress in the context of vote dilution claims.
This article explores how those factors should work in vote denial cases. First, neither an actual nor a predicted decrease in minority turnout should serve as a necessary precondition to a section 2 results claim alleging vote denial. There are theoretical, doctrinal, and practical reasons for treating election results as a relatively minor consideration with respect to the discriminatory burden prong of the emerging framework. If anything, data or predictions about turnout effects are more relevant to the question whether the challenged practice is tainted by an impermissible purpose than they are to determining the existence of a discriminatory burden.
Second, courts in section 2 vote-denial cases should be guided by the Voting Rights Act’s overall commitment to expanding the opportunity for minority citizens to participate in the political process. Particularly when confronted with a challenge involving a provision that reduces preexisting opportunities to vote, courts should not hesitate to find that the new provision constitutes a “burden” under the emerging framework. Giving evidentiary weight to the existence of a change does not impermissibly import the retrogression standard of section 5 into section 2.
Third, whether the policy underlying the challenged practice is “tenuous” (the final Senate Report factor) of necessity plays a more central role in vote denial cases than it has in vote dilution cases. This does not transform the results test into a purpose inquiry; rather, it is a question of the fit between the policy and the burden. The strength of the government’s proffered policy justifications goes to the heart of whether the practice imposes a burden and whether that burden is discriminatory. More particularly, in vote denial cases, partisan motivations, regardless of whether they rise to the level of an independent constitutional violation or suffice to prove a racially discriminatory purpose, are tenuous as a matter of law and should impose a burden of justification on a defendant jurisdiction.
Monday, August 22, 2016
Recent legal challenges to state voter ID laws have raised pressing questions about the correct interpretation of the constitutional amendment that guarantees eighteen-year-olds the right to vote. The Twenty-sixth Amendment, which was ratified in 1971, lowered the minimum voting age from twenty-one to eighteen. This Article offers a new, urgently needed comprehensive political history of the amendment's origins. Drawing on exhaustive primary source research, the piece traces the story of eighteen-year-old voting from World War II to the present and demonstrates that the story of eighteen-year-old voting is far more complicated that is commonly thought. This Article argues that the motives and rationales both for and against eighteen-year-old voting shifted over time and were always deeply embedded in their particular historical moments. As such, the history of the Twenty-sixth Amendment poses a challenge to those who would look to original intent to interpret it.
Friday, August 12, 2016
James Lee Wood is scheduled to be executed on August 26 of this year. He has not killed anybody, and nobody disputes that fact. Rather, as set out below, Wood was convicted under a controversial Texas law that allows for trying someone who did not kill anybody with capital murder 1) if he was involved in a plan to commit a crime; and, 2) if he should have realized that the crime would in fact be carried out. The Washington Post's Kristine Guerra explains:
Wood was convicted and sentenced to death under what’s called the law of parties, which has been in effect in Texas since the 1970s. It states that a person who “solicits, encourages, directs, aids, or attempts to aid the other person to commit an offense” is also criminally liable for that offense.
Under the law, prosecutors are not required to prove that a defendant had any part in committing a crime, or even intended to commit it. Jurors only need to find that there was a plan to commit a crime and that the defendant should have anticipated that the crime would occur...
Executions of people who did not directly kill the victim are extremely rare: The Death Penalty Information Center lists just 10 such instances that didn’t involve contract killings. Half were in Texas under the law of parties.
In recent years, there have been efforts to reform Texas law so that someone who didn’t kill won’t be executed. So far, those efforts have failed.
Last year, state Rep. Harold Dutton, a Democrat from Houston, introduced a bill that would ban the death penalty in law of parties cases. The bill, however, did not get a vote on the floor.
Tim Cole, a former Texas prosecutor and defense attorney, said the law of parties erases the distinction between an accomplice and someone who pulled the trigger.
“The legal argument is that, obviously, if you look at moral culpability in terms of who’s most culpable, it’s the person who actually committed the crime,” Cole told The Post. “In most circumstances, most people would think the other person who pulls the trigger should be subject to a higher level of punishment than the other person.”
Cole echoes what the U.S. Supreme Court has said in the past.
In a 1982 case involving the robbery and murder of an elderly Florida couple, the high court threw out the death-penalty sentence of a man who was in a getaway car when the killings happened. Someone who participated in the robbery shouldn’t be treated the same as the person who committed the killings, the court said.
But there are exceptions, Cole said. One example is a murder-for-hire case in which the triggerman was following orders from someone else.
The 1996 killing of convenience store clerk in Kerrville, Texas for which Wood was convicted and sentence to death was not a murder-for-hire scheme. Rather, according to testimony by his then-girlfriend, Wood tried to prevent any violence from happening.
To be clear, Wood is not arguing his innocence. He did agree to help Daniel Reneau rob a convenience store safe. He was an accomplice to the crime; he drove Reneau to the crime scene. However, before committing the crime, Wood apparently pleaded with Reneau to leave the .22-caliber handgun Reneau had with him behind. Without Wood's knowledge, Reneau brought it anyway. He later shot the clerk while Wood waited for him in the car.
In a writ of habeus corpus recently filed by his attorneys with the Texas Supreme Court, Wood now claims that he could not have anticipated Reneau's true intentions. According to Guerra's report, Wood "is borderline mentally disabled with an IQ of 80." Coupled with his emotional immaturity, he was susceptible to manipulation. Put simply, when Reneau relinquished to his request not to bring the gun, Wood did not have the intellectual capacity to understand that Reneau might be lying to him.
Wood also claims that the psychiatrist for the prosecution at his trial--who, it should be added, never met with Wood--gave false and misleading statements about the likelihood that Wood would commit future violent acts. And, this psychiatrist reportedly has a reputation. Because of his penchant for testifying for the prosecution in death penalty cases, this particular psychiatrist carries the nickname "Dr. Death." Also, as Guerra notes:
In 1995, three years before Wood’s trial, [James] Grigson was expelled from the American Psychiatric Association and its Texas branch at that time, the Texas Society of Psychiatric Physicians, for predicting a defendant’s potential threat to society based solely on a hypothetical. The expulsions followed an investigation by the Texas association’s ethics committee, which cited Grigson’s “willfully narrow rendition of psychiatric knowledge.”
In a profile published after Grigson’s death in 2004, the Houston Chronicle cited his unusual willingness to testify against capital murder defendants. A former prosecutor who used Grigson in several trials told the newspaper that he was an “outstanding communicator who really connected with a jury.”
But the psychiatric association saw Grigson as a threat to the profession.
Reneau was executed in 2002. Wood now argues that the death penalty should be reserved for the worst of the worst, and that someone who has not actually killed anybody is not that--he's different from Reneau. However, unless the Texas Supreme Court intervenes, he will meet the same fate.
"California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State (2016 Update)"
This report updates our 2015 study on the enactment and enforcement of anti-homeless laws in California (http://ssrn.com/abstract=2558944) with new ordinance data from cities and updated arrest data from the FBI’s Uniform Crime Reporting Program. We find that California cities are enacting and enforcing anti-homeless laws in record numbers. In contrast with historical post-recession trends, arrests of people who are homeless continue to rise in spite of an improving economy. Further, cities appear to be arresting people increasingly based on their homeless status as opposed to any concrete unlawful behavior.
Wednesday, August 10, 2016
This Article offers a theoretical model that explains the persistence of what I will call “blue-on-black violence.” Six features comprise the model: (1) A variety of social forces converge to make African-Americans vulnerable to ongoing police surveillance and contact. (2) The frequency of this surveillance and contact exposes African-Americans to the possibility of police violence. (3) Police culture and training encourage that violence (mostly implicitly). (4) When violence occurs, a range of legal actors in the civil and criminal process translate that violence into justifiable force. (5) The doctrine of qualified immunity makes it difficult for plaintiffs to win cases against police officers, and when plaintiffs win such cases, police officers rarely suffer financial consequences because their local government indemnifies them. (6) The conversion of violence into justifiable force, the qualified immunity barrier to suing police officers, and the frequency with which cities and municipalities indemnify police officers reduce the risk of legal sanction police officers assume when they employ excessive force. This reduction in the risk of legal liability diminishes the incentive for police officers to exercise care with respect to when and how they deploy violent force. Although the foregoing factors are not exhaustive of the causes of police violence against African-Americans, they suggest that the problem is structural and transcends the conduct of particular officers engaging in particular acts of violence against particular African-Americans.
Wednesday, July 20, 2016
A generation ago, the Supreme Court upended the voting rights world. In the breakthrough case of Thornburg v. Gingles, the Court held that minority groups that are residentially segregated and electorally polarized are entitled to districts in which they can elect their preferred candidates. But while the legal standard for vote dilution has been clear ever since, the real-world impact of the Court’s decision has remained a mystery. Scholars have failed to answer basic empirical questions about the operation of the Gingles framework. To wit: Did minorities’ descriptive representation improve due to the case? If so, did this improvement come about through the mechanisms — racial segregation and polarization — contemplated by the Court? And is there a tradeoff between minorities’ descriptive and substantive representation, or can both be raised in tandem?
In this Article, I tackle these questions using a series of novel datasets. For the first time, I am able to quantify all of Gingles’s elements: racial segregation and polarization, and descriptive and substantive representation. I am also able to track them at the state legislative level, over the entire modern redistricting era, and for black and Hispanic voters. Compared to the cross-sectional congressional studies of black representation that form the bulk of the literature, these features provide far more analytical leverage.
I find that the proportion of black legislators in the South rose precipitously after the Court’s intervention. But neither this proportion in the non-South, nor the share of Hispanic legislators nationwide, increased much. I also find that Gingles worked exactly as intended for segregated and polarized black populations. These groups now elect many more of their preferred candidates than they did prior to the decision. But this progress has not materialized for Hispanics, suggesting that their votes often continue to be diluted. Lastly, I find a modest tradeoff between minorities’ descriptive representation and both the share of seats held by Democrats and the liberalism of the median legislator. But this tradeoff disappears when Democrats are responsible for redistricting, and intensifies when Republicans are in charge. In combination, these results provide fodder for both Gingles’s advocates and its critics. More importantly, they mean that the decision’s impact can finally be assessed empirically.
Thursday, June 9, 2016
Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than ninety percent of those actions were filed pro se. Pro se prisoners frequently use — and in many federal districts are required to use — standardized complaint forms created by the federal judiciary. These standard forms first came into use in the 1970s at the recommendation of a committee of federal judges seeking to more effectively manage prison litigation and reduce its burdens on the federal courts. Although complaint forms have been around for nearly forty years and are now used in almost every federal district, no one, until now, has recognized the extent to which these forms actually diverge from or misrepresent the content of the law.
In this paper, we collect and analyze every form complaint used by the federal district courts. Our results indicate that, while form complaints can be helpful to pro se prisoners, many impose burdens that are inconsistent with governing law. First, many complaints require prisoners to plead facts that the law says they are not required to plead. Second, many complaints prohibit or discourage prisoners from pleading facts necessary to survive a motion to dismiss. Third, some complaints require plaintiffs to plead legal conclusions, using language that may confuse unsophisticated prisoners and cause them to make inadvertent but significant legal errors.
These flaws can impose serious consequences on prisoners, including unwarranted dismissal of their complaints. Prisoners are already uniquely marginalized in our legal system. They should not bear added pleading burdens not faced by other litigants. To address the concerns raised in our study, we provide a model form complaint that is compliant with the law and that attempts to reduce the hurdles prisoners face to filing a factually sufficient complaint.
...as an alleged invasion of his right to privacy. Here's a taste:
By a 3-0 vote, the 4th U.S. Circuit Court of Appeals said Adrian King could pursue claims that officials at Huttonsville Correctional Center illegally threatened him into consenting to the June 2013 surgery, or risk being segregated from other inmates and lose his eligibility for parole.
Circuit Judge Roger Gregory found “overwhelming evidence” that the intrusion was unreasonable, despite the asserted need by prison officials to police the security threat posed by inmates carrying contraband within their bodies.
“The interest in bodily integrity involves the most personal and deep-rooted expectations of privacy, and here, the nature of the surgery itself, surgery into King’s penis, counsels against reasonableness,” Gregory wrote for the Richmond, Virginia-based appeals court.
King had had the marbles implanted in and tattoos drawn on his penis in late 2008, prior to his incarceration, during a “body modification” craze.
Wednesday, June 8, 2016
Tomorrow, California will become the fifth state -- along with Montana, Oregon, Vermont and Washington -- to legalize the right of terminally ill patients to end their own lives. This AP report begins:
California on Thursday becomes the latest state to allow the terminally ill to legally choose to end their lives, raising worries among some people in the state’s large Latino and African-American communities that poor people with serious illnesses could be pressured to take lethal drugs as a cheaper option to long-term care.
California is far more diverse than the other states where the option is available — Washington, Vermont, Montana and Oregon, the first to adopt the law in 1997.
Of the 991 terminally ill people who have decided to take life-ending drugs in Oregon, most have been white, over 65 and well educated, according to a February report from the Oregon Health Authority.
This spring, the national right-to-die advocacy organization, Compassion & Choices, named Latina, African American and Filipina-American women to reach out to minority communities. The group also set up a bilingual hotline explaining the law and held meetings in largely Spanish-speaking areas such as California’s Central Valley...
California has more safeguards than other states. Before a doctor can prescribe lethal drugs, a patient 18 or older must make two oral and one written request. The law also requires a diagnosis that the person has less than six months to live and that the person can take the drugs without help from anyone.
Life-ending drugs will be covered under MediCal, the state’s public insurance plan, but it limits coverage of outpatient palliative care consultations unless the person has stage IV cancer.
A recent study by the Drug Policy Alliance found that African Americans and Latinos are disproportionately arrested for marijuana possession in California. Shortly after the release of the report, the California NAACP announced its support for Proposition 19, the ballot initiative that, if approved this November, would legalize marijuana in the state. Here are excerpts from CNN.com's report:
Police departments in California have made more than 60,000 marijuana possession arrests in 2008, three times more than in 1990, according to a recent study released by the Drug Policy Alliance an organization that says it promotes policies to end the war on drugs. Although blacks and Latinos make up less than 44 percent of the state's population, together both ethnic groups constitute up to 56 percent of arrests that are made for marijuana possession in California, according to the study. Furthermore, the U.S. Department of Health and Human Services has found that African-Americans use marijuana at lower rates than white Americans across the country.
The study said arrests in California are "racially-biased" and have led to a "system-wide phenomenon, occurring in every county and nearly every police department in California, and elsewhere."
Hilary O. Shelton, vice president of advocacy for the NAACP, said these numbers make it a civil rights issue.
"We are usually conservative in terms of the issues that we support, but disproportionate prosecution of [African-Americans for] drug-related offenses for marijuana has called us to fight for decriminalization in our community."
"If the law on drug possession was being enforced correctly, then the number of arrests and prosecutions and prison sentences would be proportionate to our society across the board," Shelton said.
"Sadly, that's not the picture."
But some African-Americans don't think the solution to the problem is to legalize marijuana.
Bishop Ron Allen, an outspoken leader of the International Faith-Based Coalition and member of the NAACP, is outraged by the endorsement.
He, along with 24 other faith- and activist-based organizations held a press conference in California Wednesday, calling for the resignation of Alice Huffman, claiming the California NAACP's endorsement of marijuana legislation is selling out the African-American community.
"If you think you are a civil rights leader, you should know better than anyone not to open the door to laws that will poison our community," Allen said.
Big data and data analytics (“big data”) can produce many social and economic benefits. But they can also generate privacy injuries and harmful discrimination. The governance of big data should, accordingly, focus on balancing benefits and risks. Where the potential benefits outweigh the risks, the big data application should be seen as appropriate. Where the risks outweigh the benefits, it should be seen as inappropriate. This provides a framework for sorting beneficial from harmful uses of big data, and so for figuring out which big data applications are in bounds, and which are not.
Others have advocated a risk-benefit approach to big data. However, the scholarly literature has not yet identified a legal basis on which to ground such an approach. This Article does. It argues that the FTC could use its Section 5 “unfairness authority” to draw the line between those big data uses that are appropriate and fair, and those that are inappropriate and unfair. In this way, it could provide guidance to big data businesses that are struggling to find a coherent, legally-grounded framework for making such calls. It could also take an important step towards protecting privacy and civil rights in the era of big data.
This raises an important legal question. Does the Commission’s unfairness authority encompass the governance of big data? Or does this task lie outside the scope of the FTC's statutory jurisdiction? Here, the essay offers an original reading of FTC v. Wyndham Worldwide Corp., a district court decision (on appeal at the time of this writing) that provides the latest word on the scope of the FTC’s unfairness jurisdiction. It shows that the Wyndham decision both supports the FTC’s authority to govern big data practices and provides guidance on how the Commission could go about doing so.
Tuesday, June 7, 2016
This article demonstrates the close connection between student speech that the First Amendment protects (even for students in grades K-12) and penalties school authorities impose on speech they find controversial or offensive. The penalties include deprivation of instructional time – suspension, expulsion and assignment to alternative school for troubled and disruptive youth. The link between the exercise of First Amendment rights and school discipline that starts young people on the school-to-prison pipeline is even more dramatic when on-site police officers arrest students or schools refer them to the juvenile justice system for violating a school speech code – rules imposed by the school that may restrict expression the First Amendment protects in- and out- of school. Using national and local survey data that show the majority of students suspended from school are charged with nothing more than a code violation, often involving protected speech (such as cursing or criticizing a teacher), as well as reported cases about violations of student speech rights decided long after students had lost educational time, and the stipulations in the prolonged civil rights litigation in Meridian, Mississippi linking race, speech, in-school arrests and incarceration, the article demonstrates a nexus between the exercise of constitutional rights and the school-to-prison pipeline. The article also discusses penalties imposed for off-campus speech by students, especially online expression. The author argues that protected speech should never result in penalties that lead to adjudication as a delinquent or confinement in a juvenile facility.
Monday, June 6, 2016
The AP's Jim Suhr has this report, which begins:
Michael Brown's family will get unredacted transcripts of grand jury proceedings involving the officer who killed the 18-year-old, a federal judge said Monday, marking the first time someone other than a prosecutor or grand juror will see uncensored details of the secret proceedings.
U.S. District Judge E. Richard Webber's protective order spelling out terms of the release requires St. Louis County prosecutors to hand over the testimony and the names of grand jury witnesses to attorneys for Brown's family, which is pressing a wrongful-death lawsuit. The order bars the attorneys designated to see the grand jury items from making any of them public, lest they be jailed for contempt.
The grand jury's November 2014 decision to not indict white Ferguson police officer Darren Wilson for shooting Brown, who was black and unarmed, rekindled often-violent protests that immediately followed Brown's death three months earlier. Wilson later resigned.
St. Louis County Prosecuting Attorney Robert McCulloch publicly released heavily redacted transcripts of the grand jury testimony, but he refused to release the names of witnesses, who were promised anonymity.
An attorney for McCulloch's office, Linda Wasserman, had opposed the disclosure request and later sought to limit it. In a recent court filing, she cited "continued grave concerns, in light of the lives at stake, regarding the efficacy of a protective order in controlling the short-term and long-term threat of personal harm to innocent persons called as witnesses in this case."
Monday's order also calls for authorities to release unredacted transcripts of witness interviews, written statements obtained by St. Louis County police, audio-record transcripts and autopsy and scene photographs not previously disclosed.
“I did my time; I did everything I was supposed to do. I paid the courts, I paid the fines and got my life back on track..."
...explains one woman who hopes to vote this November thanks to an executive order by Virginia Gov. Terry McAuliffe (D) restoring voting rights to former felons. However, Virginia Republicans recently challenged the governor's authority to issue the order. As The New York Times's Sheryl Gay Stolberg explains:
In issuing his sweeping order, Mr. McAuliffe made expansive use of his clemency powers to effectively nullify a Civil War-era provision in the State Constitution that barred convicted felons from voting for life — one of the harshest disenfranchisement policies in the nation. In an interview previewing his announcement, Mr. McAuliffe said his legal authority to do so is “ironclad.” But Republicans say the governor lacks blanket authority to restore voting rights and must instead do so on a case-by-case basis — as his predecessors in both parties have done.
“He’s really put a stick in the legislature’s eye,” said Speaker William J. Howell of the Virginia House of Delegates, the lead plaintiff in the Republican suit [challenging the governor's order]. He said the suit “has nothing to do with” the registration drive, and rejected Democrats’ accusations that Republicans were trying to suppress the black vote: “The governor has whipped them up.”
Still, race is a powerful subtext; African-Americans make up 19 percent of Virginia’s population, but 45 percent of those covered by the governor’s order. The Sentencing Project, a Washington research organization, says one in five African-Americans in Virginia cannot vote because of felony convictions.
“When you look at the fact that of the individuals who are most impacted by this, 45 percent of them are African-American, what conclusion can we draw?” asked State Senator Mamie Locke, chairwoman of the Virginia Black Legislative Caucus, which held “Voices for The Vote” rallies on Saturday in three Virginia cities.
Organizers of the registration drive say they would like to sign up 25,000 new voters in time to cast ballots on Election Day.
“That could make a difference,” said Bob Holsworth, a longtime political analyst in Virginia, noting that some state races in Virginia had been decided by relatively slim margins, of 5,000 or 6,000 votes.
As it stands, Iowa, Florida and Kentucky are the only other states that deny voting rights to felons for life.
The editorial, titled To Stop Bad Prosecutors, Call the Feds, begins:
Prosecutors are the most powerful players in the American criminal justice system. Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.
So why is it so hard to keep them from breaking the law or violating the Constitution?
The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions. It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights. There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.
Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.” Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence. Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases...
This is precisely what happened to Kerry Max Cook, a man who has spent 40 years proclaiming his innocence of the brutal 1977 murder of Linda Jo Edwards. Questions as to his guilt abounded, but one of the most troubling aspects of the case was the prosecutor's decision to withhold an eyewitness account that identified the victim's lover--and not Cook--as leaving the crime scene around the time of the victim's death. In this extensive piece (which is well worth reading), The Texas Monthly's Michael Hall writes:
Earlier this year, the dramatic case got even more drama. In January Udashen [one of Cook's appellate attorneys] filed a motion for the Smith County DA’s office to provide any exculpatory evidence it hadn’t provided before... They found several pieces of evidence they didn’t know about—and one was explosive.
It was a police report filed in 1991 by Tyler PD detective Eric Liptak. Rudolph [the only eyewitness in the case], Liptak wrote, told police she “thought” the man in the apartment was Mayfield [the victim's former lover]. But Liptak went on: “Ms. Rudolph did later state that [t]he man she saw was Mr. Mayfield but that was after extensive questioning by Mr. Thompson, the lead prosecutor in the case.” In other words, according to the report, the lead prosecutor knew that Rudolph originally identified Mayfield as the man in the apartment. But prosecutors never gave Liptak’s report to the defense, as they are required to do. They never corrected Rudolph on the stand when she said she’d never identified Mayfield, nor did they correct her when she identified Cook at the trial as the man she saw in Edwards’ room.
Fortunately for Cook, the newly elected D.A. announced today that he was dropping the charges against Cook.
When it convenes later this month, will the Supreme Court grant David Brown similar reprieve? As The Times explains:
This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard. Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway. Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.
This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing. But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.
Regardless of the Court's decision, prosecutors will remain relatively immune from punishment unless steps are taken to curb their authority.
State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear. Professional ethics boards rarely discipline them. And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of. Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.
This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.
Sunday, June 5, 2016
Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court’s special needs jurisprudence (practices that this article calls “panvasive”). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors — as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection — they should have to engage in notice-and-comment rule-making or a similar democratically-oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented even-handedly, both in each instance and as they are distributed within the agency’s jurisdiction. Further, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.
Wednesday, June 1, 2016
The New York Times's Matt Furber and Richard Perez-Pena have this report, which states in part:
Minneapolis police officers will not face federal charges in the fatal shooting of a young black man in November, an episode that roiled the city with days of demonstrations, federal officials said Wednesday, citing evidence that seemed to bolster the officers’ account of what happened.
Most crucially, the evidence suggested that Jamar Clark, 24, “was not, in fact, handcuffed when he was shot,” despite claims by eyewitnesses that he had been, Andrew M. Luger, the United States attorney for Minnesota, said at a news conference. And he pointed to evidence that could support the officers’ claim that Mr. Clark had been grabbing one officer’s gun.
To prove that the officers had violated Mr. Clark’s civil rights, “the government would have had to establish beyond a reasonable doubt that the use of force was objectively unreasonable,” and that the officers had acted “with the specific intent to do something that the law forbids,” Mr. Luger said. After a lengthy investigation by his office, the F.B.I. and the Justice Department’s Civil Rights Division, he said, prosecutors could not make those claims.
“There are no winners here, and there’s no victory for anyone,” he said. “A young man has died, and it is a tragedy.”
Outside the F.B.I. office where officials announced the decision, a group of protesters, including members of Black Lives Matter, gathered to bitterly contest it...
The federal government’s conclusion largely confirms the findings of the Hennepin County Attorney’s Office, which reported on March 30 that Mr. Clark had not been handcuffed when he was shot, and that he had fought with an officer and grabbed his gun. The county attorney also declined to prosecute the officers.
... writes former President Jimmy Carter in The Washington Post. In "To curb prostitution, punish those who buy sex rather than those who sell it," Carter begins:
It is disturbing that some human rights and public health organizations are advocating the full legalization of the sex trade, including its most abusive aspects. I agree with Amnesty International, UNAIDS and other groups that say that those who sell sex acts should not be arrested or prosecuted, but I cannot support proposals to decriminalize buyers and pimps.
Some assert that this “profession” can be empowering and that legalizing and regulating all aspects of prostitution will mitigate the harm that accompanies it. But I cannot accept a policy prescription that codifies such a pernicious form of violence against women. Normalizing the act of buying sex also debases men by assuming that they are entitled to access women’s bodies for sexual gratification. If paying for sex is normalized, then every young boy will learn that women and girls are commodities to be bought and sold.
There is a much better policy option.
In my 2014 book “A Call to Action: Women, Religion, Violence and Power,” I described the approach known as the “Nordic model,” which is consistent with advancing human rights and healthy societies. Pioneered in Sweden and adopted most recently in Canada and France, this strategy involves decriminalizing prostituted women and offering them housing, job training and other services. Instead of penalizing the victims, however, the approach treats purchasing and profiting from sex acts as serious crimes. Another key component is public education about the inherent harms of prostitution for those whose bodies are sold.
In Sweden, demand for prostitution has fallen dramatically under this model. Conversely,Germany and New Zealand, which have legalized all aspects of prostitution, have seen an increase in sex trafficking and demand for sexual services.
Critics of the Nordic model assert that mature adults should be free to exchange money for sex. This argument ignores the power imbalance that defines the vast majority of sex-for-cash transactions, and it demeans the beauty of sexual relations when both parties are respected.
Sex between people who experience mutual enjoyment is a wonderful part of life. But when one party has power over another to demand sexual access, mutuality is extinguished, and the act becomes an expression of domination. As author and prostitution survivor Rachel Moran explained in her book, “Paid For,” once money has exchanged hands, a woman must deliver whatever service the customer demands.
People with disabilities are the ticking time bomb of the electorate. An estimated thirty to thirty-five percent of all voters in the next twenty-five years will need some form of accommodation. Despite the significant and growing population of voters with disabilities, they do not vote in proportion to their numbers. We can consider voters with disabilities as “the canaries in the coal mine,” the people who are an advanced warning of the structural difficulties in voting not just for themselves, but also for the system as a whole. Solving problems in voting for people with disabilities will strengthen the entire system and will help improve the voting process for everyone, especially people from disempowered communities. Furthermore, although election law scholars have largely ignored the unique voting problems confronting voters with disabilities, virtually every major voting controversy in contemporary American electoral politics directly implicates issues of disability.
This Article examines the state of disability access to voting in the lead-up to the 2016 election, revealing an electoral problem that has been lurking in the background for far too long. Current debates about access to voting and voter restrictions often ignore the current legal landscape’s disparate effect on those with disabilities. The insights in this Article offer another angle of intervention towards ameliorating the problems in the voting process for disempowered individuals. This call for reform is timely in light of the upcoming presidential election. We tend to think of problems of voting and disability, if we think of them at all, as classic issues of physical access. But in fact, the contemporary problems with respect to voting that preoccupy election lawyers are also heavily implicated by disability as well and moreover are central to the inquiry. This Article reveals those hidden disability implications of our contemporary election law problems.
The U.S. Fourth Circuit Court of Appeals yesterday refused a Virginia school board's request to reconsider the court's decision granting transgender students access to the restrooms that correspond with their gender identities. As Reuters' Ian Simpson reports:
The Gloucester County School Board had asked the full U.S. Fourth Circuit Court of Appeals to review the decision by a three-judge panel last month in favor of Gavin Grimm, a student at the local high school.
The request was denied since none of court's 15 judges asked for a vote on the rehearing, the court said. The case has been seen as impacting the national bathroom wars between gay rights activists and social conservatives.
Grimm had filed suit after being barred from using the boys’ bathroom at his school. Grimm was born a female but identifies as a male.
“Now that the Fourth Circuit’s decision is final, I hope my school board will finally do the right thing and let me go back to using the boys’ restroom again,” Grimm said in a statement.
The April ruling sent the widely watched case back to a lower court to re-evaluate Grimm's request for a court order. The ruling was the first by an appeals court finding protections for transgender students under the 1972 Title IX Act, which bars sex-based discrimination by schools receiving federal funding.
President Barack Obama's administration filed a brief in support of Grimm.
Friday, May 20, 2016
SCOTUS ruled yesterday that convicted criminals' Sixth Amendment right to a speedy trial is not violated by lengthy sentencing delays. As The New York Times's Adam Liptak reports:
The case, Betterman v. Montana, No. 14-1457, concerned Brandon T. Betterman, who pleaded guilty to jumping bail in the spring of 2012. He spent the next 14 months in a Montana jail waiting to hear what his sentence would be.
He complained to the judge, saying the delay had put him on an “emotional roller coaster due to the anxiety and depression caused by the uncertainty.” In the summer of 2013, the judge finally sentenced him to seven years in prison, with four years suspended.
The long delay, Mr. Betterman said, had violated his Sixth Amendment right to a speedy trial.
Justice Ruth Bader Ginsburg, writing for the court, rejected the argument. There is a difference between trials, which adjudicate guilt, and sentencings, which determine punishment, she wrote.
“As a measure protecting the presumptively innocent, the speedy trial right — like other similarly aimed measures — loses force upon conviction,” Justice Ginsburg said...
Nor did it matter, she wrote, that a vast majority of criminal prosecutions these days end with guilty pleas rather than trials, making sentencing proceedings more important. That “modern reality,” she wrote, “does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause.”
Notably, Justice Ginsburg added that sentencing delays might be challenged as violations of due process. However, because Betterman did not make such an argument, the Court declined to rule on the issue.
The full opinion is available here.
Tuesday, May 10, 2016
This article surveys three previously unconnected areas of analysis related to internal discipline in U.S. prisons: implicit bias, prison disciplinary rules, and judicial deference to correctional decisions. It traces the possible connections from the statistical evidence on the significance of race to the potential impact of race on prison disciplinary decisions and to the legal validation of these racial norms through judicial deference. In so doing, this Article hopes to begin a dialogue that identifies several entry points for discussing the ramifications of race within correctional facilities.
Part I of this Article discusses how implicit bias could affect prison decision-making. Given the lack of modern psychological studies of correctional officials and implicit bias, this section draws on studies of implicit bias in the population at large as well as implicit bias in the criminal justice system. Part II discusses how courts may facilitate the influence of implicit race bias by requiring discriminatory intent, even in penal facilities where circumstances would favor allowing implicit bias claims. Part III examines the legal standards governing judicial review of prison disciplinary rules and decisions and concludes that judicial deference may validate the improper influence of race on prison-staff decision-making.
Monday, May 9, 2016
Gov. Pat McCrory (R-NC) filed a lawsuit in federal court today requesting clarification as to whether the anti-transgender law he signed earlier this year violates federal civil rights law, as DOJ claims. The Charlotte Observer's Michael Gordon reports:
The governor has a Monday deadline to respond to the Justice Department’s discrimination claim. Instead, McCrory’s attorneys sued the U.S. Justice Department in federal court, seeking a court to overturn federal prosecutor’s assertion last week that HB2 violates Title IX of the Civil Rights Act as well as the Violence Against Women Act...
In a statement issued Monday following the filing of his lawsuit, McCrory, who’s in a tough re-election fight, accused the administration of President Barack Obama of making up federal law in finding HB2 discriminatory. He has said that HB2 is a commonsense law makes bathrooms safer for women and children
“The Obama administration is bypassing Congress by attempting to rewrite the law and set restroom policies for public and private employers across the country, not just North Carolina,” the Charlotte Republican said. “This is now a national issue that applies to every state and it needs to be resolved at the federal level. They are now telling every government agency and every company that employs more than 15 people that men should be allowed to use a women’s locker room, restroom or shower facility.”
Known as H.B. 2, the law seeks to preempt a City of Charlotte ordinance allowing transgender individuals to use the bathroom corresponding to their gender identity. H.B. 2 would require transgender individuals to use the bathroom corresponding to the sex indicated on their birth certificates.
Last week, DOJ sent the governor a letter stating that implementation of H.B. 2 could cost the state billions in federal funding.
The law has already cost the state jobs.
- "Obama plans new push for transgender rights in schools"
- DOJ tells N.C. governor anti-transgender bill could cost state billions in federal education funding
Saturday, May 7, 2016
When DOJ sent a letter to North Carolina Gov. Pat McCrory informing him that the state's anti-transgender law could cost the state billions in federal education funding, some experts saw the move--in conjunction with the EEOC's issuance of a fact sheet confirming that it's a violation of federal civil rights law to deny a transgender individual access to the restroom that corresponds with his/her gender identity--as a more focused effort by the Obama administration to secure greater protections for transgender people. The argument proved poignant. As Caitlin Emma reports in this recent Politico article from which the title of this post comes:
The divisive and politically combustible issue of bathroom access for transgender individuals is about to become further inflamed, as the Obama administration is expected in coming weeks to aggressively reinforce its position that transgender student rights are fully protected under federal law, sources told POLITICO.
With the Justice Department already locking horns with North Carolina over the state’s so-called bathroom bill, the administration plans to reaffirm its view that robust protections for transgender students are within the existing scope of Title IX, a federal law that prohibits sex-based discrimination in federally funded education programs and activities. Multiple agencies are expected to be involved.
It’s a step LGBT advocates have wanted the federal government to take for years. The legal protections include providing transgender students with not just access to bathrooms and locker rooms that align with their gender identity but also affording them protections from bullying, harassment and sexual violence, and a right to privacy concerning their transgender status and transition...
Advocates and legal experts say that Title IX’s lack of clarity could get wrapped up with a host of other legal issues, like the constitutional right to privacy and varying policies at every level of government, and result in transgender rights landing in some capacity before the nation’s highest court — just like what happened in the lead-up to the Supreme Court’s historic gay marriage verdict.
New guidance on Title IX represents a natural outgrowth of the administration’s aggressive agenda on gender equity and civil rights. In April 2014, guidance issued by the Education Department on sexual violence explicitly mentioned that transgender students are protected under Title IX. LGBT advocates saw it as an important moment for the transgender community, but have wanted the administration to go even further in clarifying the law.
Additional guidance will likely raise the ire of many Republicans in Congress, however. Some lawmakers, like Senate HELP Chairman Lamar Alexander (R-Tenn.), have already slammed the administration for federal overreach...
Lower courts have been divided on the issue. A federal district court last year ruled against Gavin Grimm, a transgender male student in Virginia whose attorneys argued that it was his right under Title IX to use the boy’s bathroom at his high school. A federal appeals court overturned that district court’s ruling earlier this year, representing a major legal victory for Grimm and LGBT advocates. The school board is appealing the ruling.
While the appellate court’s decision was a victory, it didn’t explicitly say that the Obama administration’s interpretation of Title IX is the right one. The two-judge majority came close, however, saying the lower court should have deferred to the administration’s guidance on the issue...
If other federal appellate courts show they’re divided, it will likely catch the Supreme Court’s attention, said David Cohen, a law professor at Drexel University.
For more on the battle over North Carolina's law, see here.
Friday, May 6, 2016
This question was inspired by this Atlantic article by Juleyka Lantigua-Williams, titled When a Classmate Is a Former Inmate, discussing how institutions of higher learning have created barriers to education for people with criminal backgrounds. While administrators' concern for their campuses' safety is commendable, some university policies do not appear to serve the purpose for which they were intended--and, in fact, may not even address an actual threat.
These days, American colleges are eager to boast about their number of women enrollees, their percentage of ethnic minorities, even their ratio of low-income students. They’re very proud of their inclusiveness and outreach. But many colleges are mum when it comes to the students on their campuses with criminal records.
To be fair, it’s a very delicate issue, one that requires reassuring students and parents that safety has not been compromised while also ensuring that some students with records are not singled out or treated differently. Finding that balance has proved elusive for some colleges, but others have successfully untangled the complexities created by this increasingly common phenomenon. At hundreds of colleges, students have to disclose any criminal history during the admissions process and may be prescreened by a special committee... At some schools, a formerly incarcerated student’s movements on campus and his or her access to facilities may be restricted. At a number of colleges and universities, students who have committed certain crimes may be jointly monitored by campus authorities and state officials. The measures are set up based on state requirements, school policy, and the institution’s comfort level.
But, in some instances, there are situations that are entirely out of a school’s control. Students with criminal records who want to apply for certain professional programs often hit dead-ends. “People are not rejected solely based on having a criminal record but can end up being excluded from certain academic programs that do not allow those with criminal histories to work in the field,” said Jason Ebbeling, executive director of the Student Success Center at Connecticut State Colleges & Universities. Due to licensure requirements or clinical-rotation guidelines, future teachers, nurses, and others who might work in sensitive areas are not allowed to have past criminal histories.
“Why is someone in a classroom with a record more dangerous than someone sitting next to me in a movie theater or a restaurant?” asked Barmak Nassirian during my conversation with him. Nassirian has worked in higher education for 25 years and is the director of policy analysis at the American Association of State Colleges and Universities. “People do have a responsibility for maintaining safe campuses, I don’t dismiss that.” But he fervently opposes asking students to divulge the information, considering it as part of admissions, and subsequently monitoring students once on campus. “We essentially condemn people to a life of underemployment and poverty if we deny them the one medicine that actually cures criminal behavior: education.”...
College administrators, according to several of the experts I spoke to, try to put in place as many mechanisms and safety precautions as possible to reinforce how safe their campuses are, especially for the peace of mind of prospective families. And yet, there are no statistically valid relationships between asking about criminal histories, the ratio of such students on campus, and the incidences of campus crime. One glaring example of this is sexual assault, one of the most common campus crimes...
Educators want to welcome and serve qualified students. But they are also charged with maintaining safe and conducive atmospheres for learning. And so, for the student with a criminal background who wants an education, it can seem like there is no easy way around having a record—stigmatization now or dismissal later.
One of the leading legal issues decided by the Supreme Court each term, as a proportion of its total docket, is the application of the Fourth Amendment. Despite the extensive amount of attention that the Court’s Fourth Amendment jurisprudence receives in legal scholarship, there has been scant empirical research about how modern Justices have voted in Fourth Amendment cases. This article offers several empirical analyses of the 173 cases in which the Supreme Court addressed Fourth Amendment issues between 1982 and 2015. The analyses show different voting patterns among the Justices depending upon the posture of the case and the nature of the relief sought by the litigants raising Fourth Amendment claims.
The key findings are: (1) the overwhelming majority of Fourth Amendment litigants in the Supreme Court were criminal defendants rather than civil rights plaintiffs, and the overwhelming majority of Fourth Amendment issues addressed by the Court were substantive in nature (i.e., whether the Fourth Amendment had been violated) rather than remedial in nature (e.g., whether, in a criminal prosecution, suppression of incriminating evidence was an appropriate remedy for an unconstitutional search or seizure); (2) Fourth Amendment claims succeeded in slightly less than one in four plenary-review cases; (3) Fourth Amendment litigants were more much likely to succeed concerning substantive issues than remedial issues; (4) civil rights plaintiffs were slightly more likely to succeed than criminal defendants; (5) individual Justices generally voted in Fourth Amendment cases in a manner that reflected their overall ideological dispositions, yet Justices Breyer, Scalia, and Blackmun bucked this trend, resulting in more ideologically mixed voting blocs in Fourth Amendment cases than in several other divisive areas of the Court’s docket, such as abortion rights or voting rights; (6) the Court has granted more certiorari petitions filed by the government than petitions filed by Fourth Amendment litigants, and is much more likely to rule against a Fourth Amendment litigant when the Court has granted the government’s petition than when it has granted a Fourth Amendment litigant’s petition; and (7) the Court’s per curiam cases addressing Fourth Amendment issues generally resembled the Court’s plenary-review cases with respect to the nature of the litigants and the nature of the issues addressed, although the Court always has ruled in favor of the petitioners, whether the government or Fourth Amendment litigants, in its per curiam Fourth Amendment decisions.
DOJ tells N.C. governor anti-transgender bill could cost state billions in federal education funding
On Wednesday, DOJ sent a letter to Gov. Pat McCrory (R-NC) informing him that the anti-transgender law he recently signed violates the Civil Rights Act. The state must confirm by Monday that it will not comply with the law lest it face losing billions in education funding for state schools.
Known as H.B. 2, the bill pre-empted a Charlotte city anti-discrimination ordinance allowing transgender individuals to use the restrooms that conform with their gender identity. Apparently overwhelmed by hysteria and fear, North Carolinian conservatives passed H.B. 2 requiring people to use the restrooms that correspond with the sex identified on their birth certificate--signed by Gov. McCrory, of course.
The Charlotte Observer's Jim Morrill had this extensive report, which states in part:
The letter says HB2, which pre-empted Charlotte’s anti-discrimination ordinance, violates Title IX [of the Civil Rights Act], which bars discrimination in education based on sex, and Title VII of the Civil Rights Act, which bans employment discrimination.
If the finding is upheld, North Carolina could lose federal education funding. During the current school year, state public schools received $861 million. In 2014-2015, the University of North Carolina system got $1.4 billion...
The Justice Department letter came two days after the Equal Employment Opportunity Commission posted a fact sheet reiterating its stance that it’s a civil rights violation to deny transgender employees access to a bathroom based on gender identity.
That fact sheet refers to a 2015 decision in which the EEOC ruled that a civilian transgender woman working for the Army had been discriminated against when she was banned from using the common women’s restroom and forced to use a single bathroom.
Carl Tobias, a University of Richmond law professor who has followed the HB2 legal issues, said the Justice Department letter was similar to one sent by the federal Education Department in the case of the Virginia transgender teen battling a bathroom ban in the Gloucester County school system.
“They might all be coordinating the federal response,” Tobias said...
In the Justice Department letter, Vanita Gupta, the Justice Department’s top civil rights lawyer, said, “HB 2 … is facially discriminatory against transgender employees on the basis of sex because it treats transgender employees, whose gender identity does not match their biological sex, as defined by HB2, differently from similarly situated non transgender employees.”
She went on to say the department “concluded that … the state is engaged in a pattern or practice of resistance to the full enjoyment of Title VII rights by employees of public agencies…”
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.”
Thursday, April 7, 2016
This Article examines the role military automated surveillance and intelligence systems and techniques have supported a self-reinforcing racial bias when used by civilian police departments to enhance predictive policing programs. I will focus on two facets of this problem. First, my research will take an inside-out perspective, studying the role played by advanced military technologies and methods within civilian police departments, and how they have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools, and which automates de facto penalization and containment based on race. Second, I will explore these systems — and their effects — from an outside-in perspective, paying particular attention to racial, societal, economic, and geographic factors that play into the public perception of these policing regimes. I will conclude by proposing potential solutions to this problem, which incorporate tests for racial bias to create an alternative system that follows a true community policing model.
Tuesday, April 5, 2016
Mississippi Governor Phil Bryant on Tuesday signed into law a measure affording wide protections for actions considered discriminatory by gay rights activists.
The far-reaching law allows people with religious objections to deny wedding services to same-sex couples. It also clears the way for employers to cite religion in determining workplace policies on dress code, grooming and bathroom and locker access.
Bryant, a Republican, said in a statement that he signed the law “to protect sincerely held religious beliefs and moral convictions of individuals, organizations and private associations from discriminatory action by state government.”
His decision comes amid national protests over a new law barring transgender people in North Carolina from choosing bathrooms consistent with their gender identity. Meanwhile, the governors of Georgia and Virginia vetoed similar “religious liberty” bills last week.
The American Civil Liberties Union (ACLU) criticized the Mississippi law, which it said is set to take effect in July.
“This is a sad day for the state of Mississippi and for the thousands of Mississippians who can now be turned away from businesses, refused marriage licenses, or denied housing, essential services and needed care based on who they are,” said Jennifer Riley-Collins, executive director of the ACLU of Mississippi.
The U.S. Supreme Court unanimously turned back a legal effort to reinterpret the “one person, one vote” constitutional rule Monday, ruling that states may rely on total population when drawing their legislative districts.
The case, Evenwel v. Abbott, was brought by two Texas voters, Sue Evenwel and Edward Pfenninger, who challenged the apportionment of Texas Senate districts. With the exception of the U.S. Senate, every American legislative body is apportioned by total population under the “one person, one vote” rule first outlined by the Court in the 1960s.
Evenwel and Pfenninger argued that counting non-voters—children, the mentally disabled, disenfranchised prisoners, and non-citizens—broke that rule and diluted their political power in violation of the Fourteenth Amendment’s Equal Protection Cause. Many observers, including my colleague Garrett Epps, noted that Evenwel’s interpretation would redraw the American political map in favor of a whiter, older, and more conservative electorate.
“In agreement with Texas and the United States, we reject appellants’ attempt to locate a voter-equality mandate in the Equal Protection Clause,” Justice Ruth Bader Ginsburg wrote for the majority. “As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts.”
Last Wednesday, the Justice Department announced the resumption of the controversial equitable sharing program, which had been on hold for the past four months. The program allows police departments to seize and retain citizens' personal property without charging them with a crime; and, if one is charged with a crime, the police can retain possession of the seized property even when charges are dropped or the accused is found innocent. The police must only suspect that the property was somehow linked to a crime. The threat of abuse is obvious, and not merely hypothetical.
Of course, the inequalities that pervade the criminal justice system are present in the execution of the program. Indeed, the Center for American Progress recently released this report finding that the program most dramatically (and unsurprisingly?) affects minorities and those living in low-income communities. Here's the abstract:
In the United States, the basic tenet of the criminal justice system is that one is presumed innocent until proven guilty. However, over the past several decades, many thousands of people across the country have had their property seized by the government without being charged with a crime. Regardless of these individuals’ innocence, their cash, homes, cars, and personal property can be taken if law enforcement believes it was involved in a crime or if it is the proceeds of a crime.
This practice, known as civil asset forfeiture, was established as a tool to dismantle criminal organizations. But over the past 30 years, the use—and in many cases abuse—of this practice has spiraled well beyond the purposes for which it was created. In recent years, civil asset forfeiture has come to create perverse incentives that can lead law enforcement agencies to seek profit over justice.
For many years, one of the primary drivers of these perverse incentives has been a federal practice called equitable sharing. Under this practice, state and local law enforcement can have a seizure adopted by the federal government—that is to say, placed under federal jurisdiction—and be allowed to keep up to 80 percent of the proceeds from the adopted seizures, with the remaining 20 percent going to federal agencies. Some $3 billion in seizures were distributed through equitable sharing between 2008 and 2014.
Amid media and public controversy around the program, equitable sharing was curtailed in 2015 by then-U.S. Attorney General Eric Holder. While the new federal policy that Attorney General Holder put in place last year was without question a step in the right direction, it left room for continued abuses. Today, congressional lawmakers continue to work on a bipartisan basis to pass federal legislation to achieve further reform. Moreover, many states still have laws on the books that permit unjust and harmful civil asset forfeiture practices. Without additional reform, innocent people across the United States will continue to face seizure of their cash, vehicles, and even homes—many without ever having their day in court.
In Michigan, for example, an elderly disabled woman had every penny of her savings taken by law enforcement—money she had received from disability payments and a car accident settlement—even though the government had not proven that it was connected to illegal activity. This left her unable to challenge the seizure because she had no funds left to post the bond in court. A low-income Philadelphia grandmother had her house seized because her niece’s boyfriend was accused of selling drugs outside her home. And a Los Angeles taco truck owner had thousands of dollars of earned taco sales taken by law enforcement despite no evidence of criminal activity. While he initially challenged the seizure, he was forced to drop the case because it was too expensive to fight and he feared the legal proceedings would risk the deportation of his relatives.
Although civil asset forfeiture affects people of every economic status and race, a growing array of studies indicates that low-income individuals and communities of color are hit hardest. The seizing of cash, vehicles, and homes from low-income individuals and people of color not only calls law enforcement practices into question, but also exacerbates the economic struggles that already plague those communities.
Making matters worse, these individuals are the least able to shoulder the cost required to regain their property through complicated legal proceedings that are heavily weighted in favor of law enforcement. Moreover, because there is no constitutional right to an attorney in forfeiture cases, property owners who cannot afford legal representation are often left with no choice but to attempt to represent themselves in court.
Fortunately, as bipartisan outrage at unjust civil asset forfeiture practices continues to grow across the United States, policymakers have a unique opportunity to find common ground and enact laws that restore forfeiture to its original purpose. While federal reform is urgently needed, states can do a great deal to protect their residents—and especially vulnerable populations—from the abuse of civil asset forfeiture laws.
This report provides an overview of the rise of civil asset forfeiture abuse by law enforcement, highlights the impact of these abusive practices on low-income individuals and communities of color, and offers steps that state policymakers can take to prevent civil asset forfeiture abuses from pushing already struggling families and communities into or deeper into poverty.
Here's the full report.