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.
Wednesday, November 11, 2015
"Of Visible Race-Consciousness and Institutional Role: Equal Protection and Disparate Impact after Ricci and Inclusive Communities"
When Ricci v. DeStefano was decided in 2009, I identified three possible reading of that case, one of which would be fatal to statutory disparate impact standards and two of which would not. Inclusive Communities strongly suggests that the fatal reading will not prevail. The two readings that remain viable are the "institutional reading," on which Ricci restricts the freedom of employers to remedy their own disparate-impact problems without similarly restricting the ability of courts to order disparate-impact remedies, and the "visibility reading," on which the key question about any given disparate-impact remedy is the degree to which its race-conscious aspect is publicly visible. Inclusive Communities seems to reinforce the visibility reading and to suggest that visibility will be an important element of the Court's forthcoming decision in Fisher v. Texas.
Saturday, November 7, 2015
"Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities"
At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate impact liability has faced a direct constitutional threat. This paper argues that the Court’s decision this past Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being.
In particular, this paper argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case — which argued that state actions that do not classify individuals based on their race are not constitutionally suspect simply because they are motivated by the purpose of integrating the races. Applying that understanding, Inclusive Communities makes clear that disparate impact need not surrender to equal protection, but that the Constitution demands some limitations on disparate impact liability. Although the limitations should make a difference at the margins, they are not nearly as severe as some may have feared.
The broader goal of this piece is to offer an account of how the principle that Justice Kennedy articulated in Parents Involved, and that the Court seems to have adopted in Inclusive Communities, fits into prior equal protection doctrine. The piece argues that this interpretation of equal protection represents the most attractive approach consistent with the decided cases. But although the Inclusive Communities approach to equal protection represented the best path available to the Court in light of prior cases, it has substantial drawbacks. In addition to ignoring key normative considerations, the Court’s formalistic focus on the existence or nonexistence of a classification as a trigger for strict scrutiny is likely to prove unstable.
Wednesday, November 4, 2015
Ernest Lee Johnson killed three people with a claw hammer in 1994, and he was sentenced to death for it. Since then, however, he has had surgery to remove a tumor on his brain. He now argues that lethal injection could cause him to suffer seizures; thus, his execution would violate his constitutional right not to be cruelly or unusually punished.
A federal district court dismissed Johnson's argument. Yesterday, SCOTUS determined that the execution must wait for the Eighth Circuit to decide whether that dismissal was proper.
See WaPo's report here.
The Atlantic's Russell Berman has this take on the recent vote in Houston, TX repealing a city ordinance aimed at protecting transgender folks from discrimination. Berman begins:
The nation’s fourth-largest city has elected a lesbian mayor three consecutive times without much controversy, and in 2014, its city council approved an ordinance protecting residents from discrimination based on sexual orientation, gender identity, and 13 other factors. But when that same proposal came before the electorate on Tuesday, it lost out to an opposition campaign armed with a startlingly simple message: “No men in women’s bathrooms.” Opponents led 61 to 39, with 66 percent of the precincts reporting on Tuesday night.
After a hard-fought campaign that drew national attention from Hollywood celebrities and presidential candidates, voters rejected the Houston Equal Rights Ordinance, or Proposition 1, handing a victory to conservative critics who argued that its expansive protections for transgender people could endanger women and children.
Championed by the city’s outgoing mayor, Annise Parker, the ordinance represented an early test of the gay-rights movement’s effort to guarantee that Americans who just secured the right to marry would not face discrimination in employment, housing, or public accommodations. Many of the classes listed in the ordinance—race, sex, age, and religion, among others—are already protected under federal law, but sexual orientation and gender identity are not.
Wednesday, August 19, 2015
This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for charters, and b) in light of that, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools would be deemed unconstitutional by the current U.S. Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.
Sunday, July 19, 2015
One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – ‘liberty’ meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient ‘liberty of the subject’? This question could be and was asked with regard to many areas of law. The traditional order of property rights, for instance, was already in disarray thanks to the shocks of monopoly capitalism, labour militancy, the First World War, and the profound crisis of the Great Depression. Yet few rights would more directly test a wartime government's conception of the rule of law than the right of conscientious objection. The refusal of alleged pacifists to participate in the often lawless violence of the Second World War posed fundamental practical and normative challenges for all combatants – but especially for those who understood themselves to be fighting for individual liberty.
Wednesday, July 8, 2015
"Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs"
This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have been many “legal black holes” historically, domains where legal protections did not exist for certain people. Foreign affairs and national security have historically been areas defined by their legal black holes.
In recent years, legal black holes are disappearing, and previously distinct domains are converging. The importance of U.S. citizenship to protection under the Constitution and courts is decreasing, formal barriers to legal protection and judicial review based on geography and war are dissolving, and the dissolution of these categorical boundaries is changing the design and operation of the national security state. National security and foreign affairs law is being domesticated and normalized, as rights protections available in ordinary, domestic, peacetime contexts are extended into what were previously legal black holes. The jurisprudence of categorization and boundary-marking is fading away.
The core of this Essay identifies, names, and discusses these trends, seeking to give a vocabulary and conceptual and historical coherence to current discussions of individual rights protection in national security and foreign affairs contexts. Secondarily, this Essay suggests some factors that might be driving convergence and closing of legal black holes today. Because most of these potential causal drivers are still exerting their force on the shape of the law, this Essay concludes that the future of national security law will likely see more convergence and fewer black legal holes and then offers several specific predictions.
ProPublica has this interesting Q&A on the re-emergence of the Fisher case with Joan Bizkupic, author of “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice.”
Wednesday, June 10, 2015
Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Article explains how this differentiation arose and considers its consequences.
Although there is a certain underlying logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech and due process rights of suspected subversives. Toward this end, they took two terms that had generally been used interchangeably and they created the civil rights-civil liberties distinction. Civil rights would forever after be attached to the struggle for racial equality and subsequent campaigns against other forms of public and private discrimination. Civil liberties would be attached to claims of individual freedom against generally applicable government regulatory power.
The civil rights-civil liberties divide was contested from the beginning, however. In the late 1940s and early 1950s, the radical left condemned the divide as a tool for politically powerful liberal anticommunists to separate themselves from the declining fortunes of their former New Deal allies. In the 1960s, a new generation of critics of the divide made the case that the battles against discrimination and government oppression were indivisible. Some advocated a new label, “human rights,” which would subsume the categories of civil rights and civil liberties, while also recognizing social welfare rights. Despite these revisionist efforts, the civil rights-civil liberties divide survives, still contested, but also reinforced as each new generation puts it to new uses. This Article not only reconstructs the largely forgotten history of the origins of the civil rights-civil liberties divide, it also identifies the ways in which labeling and categorizing the legal landscape can advance or impede legal change.
Monday, June 1, 2015
"The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways'"
Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.”
Thursday, May 7, 2015
The story of our Constitution is a tale of two liberties: individual freedom and collective freedom. The inherent tension between these the two is well known. Judicial protection of individual liberty inhibits the collective from freely arranging society through the democratic process. In contrast, judicial protection of this collective freedom to structure society may infringe on individual liberty, especially for those out of the mainstream. Like a pendulum, over the last century, the rights of free speech and exercise have swung between the individual and the collective, between right and left. This article traces these arcs from individual liberty to collective liberty, and back.
Historically, progressives tended to favor broad conceptions of individual rights, with respect to protecting unpopular speech and minority religious groups. Conservatives, in contrast, often disfavored such rights to the extent they impeded the preservation of traditional social norms and structuring society. In recent years there has been a reversal, as the right has asserted the mantle of individual liberty against claims of governmental intrusion into time-honored institutions. But for the left, a robust freedom of speech and religion — no longer serving progressive causes of social justice and equality — can now more easily be subordinated to what Justice Breyer referred to as "collective" liberty.
By looking at two controversial cases in this arena — McCutcheon v. FEC and Burwell v. Hobby Lobby — this article chronicles the juxtaposition of positions on the right and left between collective, and individual views of rights, and explains what this means for the development of the First Amendment on the Roberts Court, as freedom from government clashes with freedom by government.
Tuesday, May 5, 2015
In the 2014 Term, the Supreme Court is hearing challenges to four state exclusions of same-sex couples from their marriage law and other family law protections. Unlike the circuit judges who have evaluated these claims, the Justices find relevant the original meaning of the Fourteenth Amendment. Many opponents of Marriage Equality for lesbians, gay men, bisexuals, and transgender persons assume that original meaning is hostile to such claims. In this article, Professor Eskridge maintains that the original meaning supports the marriage equality claims. While the drafters of the Equal Protection Clause had no “expectations” that states in 1868 would have to issue marriage licenses to same-sex couples, the term they adopted (“equal protection”) had an established meaning: the state cannot create a caste regime arbitrarily marking a whole class of worthy persons as outside the normal protections of the law. This original meaning has bite today that it would not have had in 1868. In the twentieth century, states created a terrifying anti-homosexual caste regime, whose deep norm was that gay persons are anti-family. In the twenty-first century, much of this caste regime has been dismantled, but new and sweeping family law exclusions such as those before the Court are recent expressions of that regime and should be skeptically examined by the Justices.
Monday, April 6, 2015
Is it possible to be in favor of a constitutional vote and against amending the Constitution to add it? Yes. This paper argues that the amendment game is not worth the candle. There are two stages for ensuring a robust right to vote: amending the Constitution, and enforcing that amendment. As to the first stage, if an amendment enshrining the right to vote looks anything like its cognates in the Constitution, it will be thinly described, maddeningly vague, and pushed forward by self-interested politicians. If the amendment takes this form, the benefits reformers and academics assert we’ll reap are anything but automatic. Once a vague guarantee is embedded in the Constitution (Stage 1), reformers will still have to turn to legislators and courts to get something done (Stage 2).
Making the text more concrete may make Stage 2 easier, but it will complicate efforts to pass the amendment in the first place. After all, if it were easy to enfranchise former felons or block voter ID rules or guarantee a well-administered election system or end partisan gerrymandering, we would presumably have done it already. It’s possible, of course, that reformers could aim for something more than vague language, either by writing their aims explicitly into the text or creating an amendment history so robust that everyone understands what the right embodies. On this view, reformers would build a big tent of supporters by linking the amendment to lots of different reforms. The problem with this strategy is that it will also generate a big tent on the other side. Push for felon enfranchisement, and you’ll run up against the tough-on-crime lobby. Tempt progressives with a ban on voter ID and lose the support of many Republicans. Promise to end gerrymandering and lose the support of most incumbents. That’s why a vague textual guarantee is so tempting an option in Stage 1, even if it creates more work for Stage 2. For these reasons, it makes more sense to pour political resources into more discrete reform projects going forward.
Wednesday, March 25, 2015
This essay grapples with a previously unexamined feature of the death penalty: temporal arbitrariness. How does the circumstance of time affect capital defendants? What might this mean for the stability of our notions of justice? I explore these questions using a 25-year-old death penalty trial as a case study, examining the procedural and factual highlights of the case and situating it in its temporal milieu. I then explore how the roles of doctrine, policy, and cultural attitudes would dramatically alter the nature and probable outcome of the case today, illustrating how temporal arbitrariness further exposes the death penalty’s unsteady administration and indeed, its crumbling legitimacy.
Yesterday, Utah governor Gary Herbert signed into law a bill providing for state executions by firing squad. As AP reports:
Utah lawmakers say they took a pragmatic approach in approving the firing squad as a form of execution if lethal-injection drugs aren't available.
Their thinking: Develop a backup plan in case a nationwide lethal-drug shortage persists.
But critics say bringing back the firing squad in Utah - the only state to use the method in the past 40 years - could tarnish the state's image with visitors.