Friday, May 6, 2016
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.
Thursday, March 31, 2016
"[P]olice officers traded bigoted text messages...expanding the number of officers accused of making overtly racist, homophobic and sexist statements..."
…begins this local article article detailing the efforts of several San Francisco PD officers to completely undermine the department's image with Bay Area residents. It continues:
District Attorney George Gascón said Thursday that the San Francisco Police Department delivered some 5,000 pages of evidence to his office in late 2015 as part of criminal investigation, and that evidence contained the offensive texts.
“The messages are very clearly talking about African Americans and using the ‘N word’ repeatedly,” Gascón said. “They’re talking about members of the LGBT community also in a very disparaging fashion, and in the context of the conversation, they’re obviously intended to be racist in nature or homophobic. But again, we’ve only scratched the surface.”
Gascón said he couldn’t divulge the details of the criminal investigation that netted the offensive messages or the names of the officers involved...
The earlier batch of messages were made public in a federal court filing concerning former SFPD Sgt. Ian Furminger, and all the messages were recovered from his personal cell phone as part of a federal criminal investigation.
That original scandal was dubbed “Textgate” by a black and minority SFPD officers’ group. One of the text message exchanges targeted the group’s president, Sgt. Yulanda Williams, using slurs for both African-Americans and women.
[SFPD Chief Greg] Suhr attempted to fire eight of the officers involved and discipline others, but nine of them successfully challenged that discipline in superior court. A judge ruled in December that the department had allowed a one-year statute of limitations for disciplining officers to expire before pursuing the case. The officers remain on paid leave as the city appeals the ruling.
Not a good look.
Rape law is largely underenforced. Yet criticism of policing practices has myopically focused on enforcement excesses, thus overlooking the problem of the state withholding protective resources. This neglect is particularly troubling where sexual violence is at issue. Empirical evidence demonstrates the operation of pervasive biases in police officers’ decisions not to pursue an investigation. Over time, law enforcement officers have discriminated against rape victims with immunity. Recently, however, this has changed. This Article is the first to describe a new effort by the Justice Department to hold law enforcement officers accountable for failing to protect victims of sexual assault. In important respects, this turn is unprecedented. But insofar as the latest developments target violence without redress, the assertion of federal power in this domain possesses a venerable historical pedigree. When the Equal Protection Clause was conceived, the framers were chiefly concerned with the state’s failure to provide black citizens with protection from private violence. After passage of the Fourteenth Amendment, the “protection model” of equal protection, along with the federal power to enforce it, lay dormant. Recent events have revived this model and this power, allowing us to glimpse a modern version of what the 39th Congress intended. The Justice Department’s latest deployment of its “pattern or practice” enforcement authority may come as close as any intervention since Reconstruction to addressing the framers’ core concern with underenforcement. Notwithstanding the Supreme Court’s divergent jurisprudential framework, the original meaning of equal protection has begun to resurface.
Tuesday, March 29, 2016
Woman files lawsuit claiming Ohio sales tax on tampons and menstrual pads unconstitutionally discriminates against women
As this local report explains:
A group of women from the Cleveland area are suing the Ohio Department of Taxation. They’re fighting to eliminate the tax on tampons and pads.
The lawsuit states that this kind of tax is discriminatory....
[State Rep. Kristin] Boggs says feminine hygiene products are not only needed for a woman’s livelihood, but also so they can participate in society, like going to school or work. “I think there is a lack of understanding that they are medically necessary products and I think that as such they should not be taxed,” she says.
The lawsuit states that the Ohio Department of Taxation collects approximately $11 million a year just from menstruating women.
According to Boggs, if the court finds that this tax violates the Equal Protection Clause of the Constitution, then she agrees women should be reimbursed.
“Women need these products. They need them every month,” says Boggs.
Many medical items in Ohio are not taxed.
This issue is gaining traction outside Ohio as well. Five states now exempt tampons and menstrual pads from taxation while at least seven more are considering legislation to eliminate the tampon tax. And, President Obama recently addressed the issue.
Here is the 4 minute video titled, "Structural Discrimination: The Unequal Opportunity of Race":
What's most amazing is that school administrators apparently showed this video because a "racist song"--reportedly a "racist parody of the theme song from Disney's Ducktails" that begins, "I hate f*cking n****rs"--had been broadcast just minutes before the school's football team kicked off against a team from a predominately black high school.
As MuckRock.com reports, upon learning of the video, some parents immediately began inanely blathering about our PC culture's "'white guilt' agenda" and other garbage. And, of course, the members of the school board then collectively wet themselves and banned the video.
MuckRock.com's full report is here.
9th Cir. holds federal immigration law unconstitutionally discriminates against "habitual drunkards" on account of "medical condition"
Late last week, the U.S. 9th Cir. Court of Appeals decided that the federal immigration law classifying "habitual drunkards" as immoral, and therefore ineligible for relief from immediate deportation, is unconstitutional under the 14th Amendment. The LATimes's Maura Dolan explains:
Among those the law deems immoral are immigrants who participated in genocide or torture, have been convicted of a serious felony or gambling offenses and who are habitual drunkards.
Salomon Ledezma-Cosino, a Mexican citizen who entered the U.S. in 1997, was deemed an “habitual drunkard.”
Medical records show he drank an average of a liter of tequila a day for 10 years. He also has been diagnosed with acute alcoholic hepatitis, decompensated cirrhosis of the liver and alcoholism, the court said, and he has at least one conviction for driving under the influence.
Ledezma-Cosino also has eight children — five of them U.S. citizens — and has supported his family by working in the construction industry, the court said.
The majority held that the federal law linking drunkenness with poor moral character violates the equal-protection guarantees of the U.S. Constitution.
The full opinion can be found here.
A seemingly obvious statement, but one a Michigan defense attorney must've felt compelled to tell Vice.com's Annamarya Scaccia for this must-read piece on the shameful shortage of feminine hygiene products at many correctional facilities. Scaccia writes:
For women incarcerated in America's prison industrial complex, practicing proper menstrual hygiene is almost impossible. That's because, criminal justice advocates say, inmates are supplied with an inadequate amount of pads or denied feminine hygiene products altogether...
Former Rikers Island inmates have told [one advocate] that jail guards are "consistently inconsistent" with giving incarcerated women access to menstrual products. Sometimes it's because they're not enough of pads to go around. Most times, however, it's because guards want to punish an inmate and reinforce the power structure by denying access—an abuse of power advocates say is rampant across all prison systems.
Inmates could buy tampons, pads and other feminine hygiene products at a facility's commissary. But for the 72 percent of female inmates living in poverty, that's unaffordable. So they're left to ask for more pads from the very people who deny them in the first place, advocates say. And, Miller says, former inmates in New York City have reported being forced to show their soiled pads to their guard just to prove they needed more supplies. Women incarcerated in New York State's prison system have reported much the same...
A 2015 Correctional Association of New York report found that state prison inmates, who receive 24 pads per month, would stretch out their supply for the duration of their period—sometimes using one for the week. Other women said they would double up on pads during heavy days because the pads they would receive are too thin and barely absorbent. The ACLU of Michigan filed a federal class action lawsuit in December 2014 against Muskegon County for "inhumane and degrading policies" on behalf of inmates who reported similar experiences.
These coping practices lead to poor menstrual hygiene, advocates say. And poor menstrual health, research shows, can lead to serious infections like bacterial growth in the vagina or toxic shock syndrome.
In New York City, local lawmakers recently introduced legislation that would require corrections officers to "provide pads immediately upon request." But, some question whether that will make a meaningful difference.
Existing case law reinforces a prisoner's constitutional right to basic cleanliness. Judges in 1989's Carver v. Knox County, Tennessee, 1997's Carty v. Farrelly and 2005's Atkins v. County of Orange all ruled that failing to provide or denying access to sanitary items violates the Eight Amendment, which enshrines a prisoner's right to a "basic human need"—i.e. toilet paper and menstrual products—in its Cruel and Unusual Punishment Clause.
But correctional officers continue to violate the law because they're not punished when they do so, says David Fathi, director of the ACLU's National Prison Project. That lack of accountability—among other reasons—has allowed the problem to become rampant and systemic.
So while legislative efforts are commendable, he says, a mechanism needs to be in place that appropriately reprimands staff for violating the law—and a prisoner's civil rights. "There has to be accountability and consequences," says Fathi.
Saturday, March 26, 2016
When the Supreme Court found a constitutional right to same-sex marriage in Obergefell v. Hodges, many thought the Court was exercising its political will rather than its legal judgment. Noting the absence of same-sex marriage in early American history and assuming that marriage is a relatively static and timeless social institution (a view I call "marriage essentialism"), many believe that Obergefell cannot be grounded in legal precedent.
In truth, however, marriage was itself evolving in numerous ways in the centuries and decades prior to Obergefell. It was evolving from a hierarchically organized relationship of status, which gave certain religious and communal institutions a great amount of de facto control over patterns of marital relation and sexual and reproductive liberty, to a more autonomously governed private relationship, grounded in respect for personal choice and concern for the emotional well-being of partners in intimate relationships. Whereas the early traditions of marriage in America supported two illiberal and inegalitarian caste systems, relating to sex and race, marriage had already become much more egalitarian, libertarian and diverse in function.
Hence, the real legal question in Obergefell was not whether — given a fixed but ultimately mistaken conception of "traditional marriage" — there was any direct legal precedent for same-sex marriage in the United States. The real question was whether — given the recent developments in domestic marriage in America prior to Obergefell — it violated the equal protection clause to give Americans unequal rights to participate in this new and more libertarian form of marriage, based solely on their sexual orientations and resulting romantic choices. The Supreme Court answered this question in the affirmative, but the false premise of marriage essentialism has prevented many from understanding the correct legal grounding for this case.
Friday, March 25, 2016
Forty years into the Title IX game, the score is 253 to 0, religious exemptions recognized versus those denied. Almost no one knows the overall score of the game, who has made points, or who is playing. Prior to the Human Rights Campaign’s release of a report in December 2015, relatively few beyond the participants themselves even knew the game was played. Documented religious exemptions to Title IX largely take place in the dark, in private administrative processes rarely made public, under obscure agency standards and policies. The parameters of religious exemptions to Title IX have never been litigated in court or subjected to judicial review. Virtually no scholarship exists on the subject. Religious exemptions to Title IX pose a particularly urgent question given the flood of new exemptions claims focusing on transgender and homosexuality. This analysis is a first, foundational step in evaluating religious exemptions to Title IX.
On its face, a score of 253 and counting, suggests complete and overwhelming victory for one side, the educational institutions claiming religious exemption to Title IX. In reality, however, the lopsided score hides another story, one much more complex and nuanced than the score reflects. Over time, the government agency charged with Title IX enforcement subtly arrogated to itself power and authority to regulate religious exemption to Title IX. As much as victory, the score reveals a subtle erosion of autonomy as religious educational institutions acquiesce to the administrative state by requesting exemption under regulatory procedures rather than claiming inherent exemption under the Title IX statute itself and the Constitution. I conclude that the administrative regulatory procedures for religious exemption to Title IX have largely failed to accomplish the non-discrimination goals of Title IX, to respect religious liberties, or to facilitate a sustainable engagement between these potentially competing values.
The Daily Beast's Samantha Allen shares this story about The Satanic Temple's (TST) efforts to combat anti-abortion legislation around the country. Recently, several members of Detroit's local chapter travelled to Ann Arbor, Michigan to stage a "Sanctions of the Cross" procession, a performance meant to satirize an anti-abortion group's "Ways of the Cross" protest in which members "kneel outside abortion clinics...and pray for 'victims' of abortion, moving through the twelve stations of the cross." Allen writes:
At the counter-protest, Satanic Temple members walked behind the cross-bearing [chapter director] wearing suits bearing the names of the Michigan legislators who sponsored the recent anti-abortion bills. Behind them, an activist wore a leather jacket emblazoned with a middle finger and held up a grayscale American flag.
The Satanic Temple—especially the Detroit Chapter—has a history of counter-protesting religious displays and anti-abortion protests. In 2014, for example, they displayed a “Snaketivity” on the lawn of the Michigan Capitol building in response to the nativity scene being permitted on government property.
In 2015, they counter-protested anti-abortion Planned Parenthood picketers in Ferndale[, Mich.] with a theatrical display in which men dressed as priests poured milk over bound women kneeling in front of the clinic, resulting in the extraordinary Michigan Live headline: “Detroit-area Satanists doused with milk at Planned Parenthood protest.”
Last May, the group also filed lawsuits challenging anti-abortion legislation in Missouri.
The religious organization filed state and federal lawsuits over Missouri’s mandatory 72-hour pre-abortion waiting period, which is one of the longest in the country. Their legal argument, as Vice reported, borrowed heavily from the Hobby Lobby decision by claiming that they should be permitted to claim a religious exemption from the abortion restriction. The move sparked outrage among anti-abortion activists.
In case you're wondering what TST's all about, here's a brief description from the group's website:
It is the position of The Satanic Temple that religion can, and should, be divorced from superstition. As such, we do not promote a belief in a personal Satan. To embrace the name Satan is to embrace rational inquiry removed from supernaturalism and archaic tradition-based superstitions. The Satanist should actively work to hone critical thinking and exercise reasonable agnosticism in all things. Our beliefs must be malleable to the best current scientific understandings of the material world — never the reverse...
Satan is symbolic of the Eternal Rebel in opposition to arbitrary authority, forever defending personal sovereignty even in the face of insurmountable odds. Satan is an icon for the unbowed will of the unsilenced inquirer… the heretic who questions sacred laws and rejects all tyrannical impositions. Ours is the literary Satan best exemplified by Milton and the Romantic Satanists, from Blake to Shelley, to Anatole France.
The protesting appears to have been entirely peaceful on both sides.
A federal judge has permanently struck down an Alabama law that required abortion doctors to obtain admitting privileges at a local hospital.
U.S. District Judge Myron Thompson entered the order Friday declaring the state abortion law, which had previously blocked the state from enforcing, as unconstitutional. Thompson says the law would make it impossible for a woman to obtain an abortion in much of the state.
State abortion clinics had filed a lawsuit in 2013 challenging the requirement as unnecessary and an undue burden on women's right to access abortion services.
Alexa Kolbi-Molinas, an American Civil Liberties Union, says the ruling protects women's access to legal abortion.
The decision comes as the U.S. Supreme Court considers whether a similar Texas law is constitutional.
Tuesday, March 22, 2016
The title of this post comes from this intriguing paper by Professor Stephen W. Smith, the abstract of which states:
Various legal doctrines have been devised over the years to ensure bureaucratic opacity — state secrets, classified information, executive privilege, legislative privilege, judicial privilege, deliberative process privilege, housekeeping privilege, informer’s privilege, investigative files privilege, and so on. The newest of these is the so-called law enforcement sensitive privilege, now regularly invoked to shield new (and sometimes not so new) techniques and methods used to investigate and prevent crime. In one notable recent criminal case, a federal judge in Arizona invoked this privilege to justify withholding evidence about an electronic device known as the “Stingray”, which the FBI had used to track down a suspect accused of identity theft and tax fraud. Until now, the paternity of this privilege has been obscure, although bits and pieces of the story are well-known and documented.
This article attempts to assemble those pieces into a coherent genealogy. Our tale begins with three fascinating protagonists: a Barnard College alumna recruited as a Soviet spy while working under the government’s nose in the Justice Department; the most brilliant and influential federal judge never to sit on the Supreme Court; and the famously secretive law enforcement icon who built the FBI into the nation’s foremost crime-fighting force. All three came together at a seminal moment in the McCarthy Era, with a combustive force whose impact lingers to this day. This was the moment of conception for the law enforcement privilege.
The balance of the article traces this doctrine’s growth to maturity, including (ironically) the passage of the Freedom of Information Act; subsequent DOJ-sponsored FOIA amendments exempting investigative files; early court decisions adopting a limited surveillance location privilege; and later decisions recognizing a qualified privilege for law enforcement “sensitive” information. Along the way we pause to relate a personal encounter with the FOIA exemption for law enforcement techniques. The article concludes with a handful of critiques, both practical and theoretical, that might curb the prevailing enthusiasm for this youngest member of the government privilege family.
"The Supreme Court strongly suggested Monday that stun guns are protected by the Second Amendment right to bear arms."
...writes NPR's Nina Totenberg today in this report. It continues:
In 2008 the court, by a 5-4 vote, declared for the first time that the Second Amendment guarantees citizens the right to own and keep a handgun in their homes for self defense. But that decision in District of Columbia v. Heller left unresolved many questions about how much the government could regulate that right, and what weapons are included.
Enter Jaime Caetano, a Massachusetts woman who had obtained a restraining order against an abusive ex-partner and carried a stun gun for self-protection. When police discovered the weapon in her purse, she was convicted of violating the state's ban on stun guns. She appealed, contending that the ban violated the Constitution's right to bear arms. The Massachusetts Supreme Judicial Court ruled against her, declaring that stuns guns were not in existence when the Second Amendment was written.
Monday, the Supreme Court overturned that decision, which it said clearly contradicted the specific language of the 2008 ruling. The justices then sent the case back to the Massachusetts court for further unspecified action, but the message looked pretty clear: stun guns are covered by the Second Amendment right to bear arms.
Writing separately, Justices Samuel Alito and Clarence Thomas, delivered a full-throated defense of the right to carry a stun gun, and a broad definition of what weapons are covered by the right to bear arms. They called the unsigned opinion of the court "grudging."
Saturday, December 19, 2015
Recent complaint alleges state health plan for low income Californians discriminates against Latinos
As The LATimes's Soumya Karlamangla reported earlier this week:
Medi-Cal, a joint federal-state program that was greatly expanded under Obamacare last year, has come under fire recently for not ensuring that patients are able to find doctors. Many complain that Medi-Cal's reimbursement rates, among the lowest in the nation, create a shortage of doctors willing to see Medi-Cal patients.
Because Medi-Cal covers a population that is so heavily Latino, the complaint alleges, it fosters a "separate and unequal system of health care" that amounts to a violation of the Civil Rights Act of 1964.
The complaint cites a recent study that found that cancer patients with Medi-Cal were generally less likely to have their cancers caught at early stages, receive recommended treatments and be alive five years after diagnosis, compared to those with other types of insurance.
The complaint also alleges violations of a federal law that requires Medicaid programs offer enough doctors for patients, as well as a section of the Affordable Care Act that prohibits discrimination in health programs that receive federal funding.
The complaint demands an increase in Medi-Cal-provided reimbursement rates and improved monitoring of the Medi-Cal program.
The Atlantic's Matt Ford explains:
New York will enact major changes to its use of solitary confinement in prisons as part of a settlement with the New York Civil Liberties Union, the state announced Wednesday. The announcement from one of the nation’s largest prison systems caps the most successful year yet for solitary-reform advocates.
Under the agreement, about one-quarter of the state’s 4,000 prisoners in solitary confinement will be placed in less isolated housing. New York will also reduce the use of solitary for future inmates by limiting both the reasons they can be placed in it and the time they spend in it. Some of solitary confinement’s more troubling aspects will also be curtailed: Prison officials will no longer be allowed to use food as punishment, and pregnant inmates won’t be placed in solitary “except in exceptional circumstances.”
The agreement, which will needs approval from a federal judge before it goes into effect, was reached after two years of negotiations following a NYCLU lawsuit.
Read the full article here.
Tuesday, December 1, 2015
This Term, the Supreme Court will once again consider whether the University of Texas at Austin is illegally discriminating on the basis of race in its undergraduate admissions program. Most commentators expect the University to lose because it seems to have so little need to consider race as an admissions factor in light of the success generating racial diversity its Ten Percent Plan has had all by itself. This does, indeed, seem to be an easy case. But it is an easy case only because it has been litigated upon on a dubious premise: that the Ten Percent Plan is itself constitutional. The more interesting and important question is whether this premise is false. I think it may be. The Ten Percent Plan was (successfully) designed to replicate the discrimination against whites and Asians that the University had achieved using pervasive racial preferences in the 1990s. If a law is motivated by racial discrimination and has the effect of racial discrimination, isn’t the law racial discrimination? And, if it is, isn’t it constitutionally suspect? The short answers to these questions are yes.
Friday, November 27, 2015
In 2009, the Supreme Court upended the procedures for constitutional litigation. In Pearson v. Callahan, the Court rejected a rigid requirement that in assessing qualified immunity, courts must first address whether a constitutional right was violated and, if so, only then address whether that right was clearly established. After Pearson, where the right is not clearly established, courts have discretion to either dismiss the claim without going further or decide the constitutional question for the benefit of future litigants.
By analyzing over 800 published and unpublished qualified immunity decisions, this Article offers the first comprehensive study on the effects of Pearson in the federal courts of appeals. The results are revealing. Most important, this Article shows that Pearson’s procedural rule may affect the substantive development of constitutional law in at least three ways. First, the data suggests that concerns about “constitutional stagnation” may contain some truth. Specifically, although appellate courts are still deciding constitutional questions most of the time, they may not be deciding certain types of questions. Second, there is disparity among circuits on whether and how courts are reaching constitutional questions after Pearson. Because circuit courts frequently follow each other’s cases, this disparity may give certain circuits an outsized voice regarding constitutional law. And third, it is possible that Pearson may have an asymmetric impact on constitutional doctrine because of the potential overlap between judges’ substantive constitutional views based on their judicial ideologies and their procedural willingness to decide constitutional questions. Over the long run, this asymmetry between judges may shift the substance of constitutional precedent.
All of this suggests that the Supreme Court may be wise to revisit Pearson. To promote a more consistent development of constitutional law, the Article recommends that qualified immunity’s procedural standard evolve once more to require courts to give reasons for their exercise of Pearson discretion — akin to administrative law’s reasoned-decisionmaking requirement. Although Pearson sets forth a number of factors courts should consider when determining whether to exercise their discretion to decide constitutional questions, courts rarely provide their reasoning. This Article demonstrates why that should change.
NYTimes has the story, which begins:
Hundreds of demonstrators on Friday marched down the middle of North Michigan Avenue, the city’s premier downtown shopping district, forcing the police to close the six-lane thoroughfare to vehicles and prompting some businesses to lock their doors for at least part of one of the busiest shopping days of the year.
A mix of ages and races, the protesters marched up and down the avenue, known here as the Magnificent Mile, for several hours, calling for justice in the shooting death of a black teenager by a white Chicago police officer.
“Sixteen shots! Thirteen months!” they chanted, about the number of bullet wounds in the teenager, Laquan McDonald, and the length of time it took to bring charges this week against the officer. The Rev. Jesse L. Jackson and Representatives Danny K. Davis and Bobby L. Rush marched with the crowd as rain fell and a blustery wind swept through.
Groups demonstrated Friday in other cities, including Seattle, Minneapolis and New York, linking their protests over police conduct and the treatment of black people to a day when the nation’s focus is usually on the Black Friday shopping frenzy.
Wednesday, November 25, 2015
The rise of the sharing economy raises important new questions about public accommodations law. Some have argued that the sharing economy has the power to reduce or even eliminate discrimination on the basis of race in traditional public accommodations such as housing rental, transportation, and commerce.
Are these optimists correct? Is discrimination a problem in the new economy? If discrimination is not a problem in the new economy, why is the new economy different from the old economy? If discrimination remains a problem in the new economy, what form does such discrimination take? And what legal mechanisms can we use to address it?
In this Article, I argue that the new economy has not solved race discrimination in public accommodations, and, indeed, that it has raised new concerns that civil rights law must evolve to address. Most obviously, the online platforms that form the basis of many sharing economy businesses often make race salient to both parties to a transaction, which facilitates discrimination without the parties ever coming face to face with one another. Such discrimination may be rooted in either conscious or unconscious bias. Available evidence suggests that this relatively traditional form of discrimination affects the sharing economy to the same extent it affects the traditional economy.
Perhaps more troublingly, the sharing economy also facilitates new forms of discrimination by aggregating the experiences of many economy participants over time. Businesses such as Uber and AirBnb allow service providers (drivers; landlords) to rate service users (passengers; renters). Over time, these ratings aggregate the preferences of many service providers, and to the extent that the service providers are consciously or unconsciously biased, members of disfavored racial categories will gradually average lower ratings than their more favored peers. On the basis of this seemingly objective rating, service users who are members of disfavored racial categories may begin to receive worse service, or, eventually, to be denied service altogether.
The Article proceeds in four parts. Part I traces the history of public accommodations law, from its contested early roots to the Civil Rights Act of 1964 to its uneasy status today. Part II turns to the new economy. It describes the features of that economy, explains the hopes of some that the new economy offers a solution to racial discrimination in public accommodations, and then offers evidence suggesting that such hopes are unfounded. Part III considers available legal mechanisms to combat discrimination in the sharing economy. While such mechanisms offer considerable promise in many situations, they ultimately fail to address completely the unique way in which discrimination operates in the sharing economy. Part IV, then, calls for new antidiscrimination laws to take account of the unique features of the new economy, and briefly describes the form such laws should take.
The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year.
During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.
The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families.
The death penalty is on the decline in America. Executions hit a 20-year low in 2014, and most recently, Nebraska became the first conservative state in 40 years to repeal capital punishment. Several other states, from Pennsylvania to Colorado, have put executions on hold. There are several reasons states are doing this — starting with popular opinion.
Tuesday, November 24, 2015
"EEOC v. Abercrombie & Fitch Stores, Inc.: Mistakes, Same-Sex Marriage, and Unintended Consequences"
In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court held that a job applicant need not notify an employer of a needed religious accommodation in order to bring a claim of religious discrimination under Title VII of the Civil Rights Act. The decision has been heralded as a victory for religious employees and job applicants. Although Abercrombie is certainly a victory for many of these individuals, it is not clear that the decision will always be beneficial to religious employees. Indeed, while the decision enhanced protections for job applicants with clear religious accommodation it may have inadvertently penalized a different class of religious job applicants — those who convey only subtle signs of religious belief.
Soon, SCOTUS will hear oral arguments in Fisher v . University of Texas at Austin II over whether the University of Texas's admission plan is constitutional. Texas residents who finished in the top 10% of their high school class are admitted automatically. This accounts for 80% of admissions. For the remaining 20% of applicants, the university uses a long list of factors in making a determination, one of which is race. Proponents claim that UT's policy is necessary to achieve the legitimate aim of promoting institutional diversity. Opponents, however, allege that it violates the Equal Protection Clause of the Fourteenth Amendment arguing that the goal of diversity can be achieved without taking race into account, and by using race, UT is unfairly advantaging minority students.
Today, the U.S. Commission on Civil Rights announced its support for UT's policy. The commission states in part:
The U.S. Commission on Civil Rights believes that the University’s admissions policy is indeed narrowly tailored to serve the compelling interest of securing the educational benefits of a diverse student body. Accordingly, the 5th Circuit’s determination that the University’s admissions process does not violate the Fourteenth Amendment should be affirmed...
Throughout its history, the Commission has expressed its strong belief in the benefits of diversity in educational settings. In our 1975 report Twenty Years After Brown: Equality of Educational Opportunity, the Commission found it appropriate “to provide the equal educational opportunity that segregation inherently denies and to permit all pupils to develop the understanding and appreciation of each other that inevitably will result in a more equitable society for all Americans.”...
A ruling further restricting the admissions process or eliminating the consideration of race altogether will diminish the vibrant university learning experience. It will have grave consequences for many schools across the nation and students of all backgrounds. The constitutional validity and educational benefits of the University’s admissions process are clear. The Commission supports the University of Texas in this case and encourages the Supreme Court to uphold the University’s admissions process.
The commission's entire statement can be read here.
SCOTUS will hear oral arguments on December 9, 2015.
Wednesday, November 18, 2015
Yesterday, noting this Dallas Morning News article on his blog Sentencing Law and Policy, Professor Douglas Berman asked whether it's appropriate for lawyers to cease representing a death row client because existing "political realities" make a stay of execution extremely unlikely. The Fifth Circuit didn't see a problem with it, but final resolution of the question remains in SCOTUS's hands.
Here are the basics:
From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.
Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.
Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying.
But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.
Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.
UPDATE: A state judge stayed Holiday's execution earlier today citing unresolved legal issues, according to this Reuter's report, which states:
A Texas district judge on Wednesday halted the execution of a 36-year-old man, hours before he was due to be put to death by lethal injection for killing his daughter and two stepdaughters in a mobile home blaze in 2000.
The Texas Attorney General's office appealed, trying to win a ruling that would allow the execution of Raphael Holiday to proceed. It had been planned for 6 p.m. at the state's death chamber in Huntsville.
"The main factors for the decision were some additional issues under the law that had not been addressed previously," Madison County district Judge Hal Ridley told Reuters by telephone.
One of those items was testimony allowed in previous trials that may not be admissible under current standards, he said.
When I opened this article from a NBC-local in the San Fran area, I definitely immediately thought, "Of course you would, San Francisco." But, then I read on:
Lowell resident Lindsay Miller said Friday that she "absolutely loves the history and the story" of Pastafarians, whose website says had existed in secrecy for hundreds of years and entered the mainstream in 2005.
Miller says wearing the spaghetti strainer allows her to express her beliefs, like other religions are allowed to do.
A spokesman for the Massachusetts Registry of Motor Vehicles says policy does not permit head coverings or hats on license photos, but exceptions are made for religious reasons.
So, the Massachusetts RMV is all in for protecting religious liberty, and I apologize to the good citizens of San Fran.
...reads the title of this recent ProPublica article by Lauren Kirchner. Responding to recent calls for increased mass surveillance since the terror attacks in Paris (e.g., here), she lays out reasons to be skeptical about the effectiveness of mass surveillance in the first place.