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Thursday, May 15, 2014

Prof. Berman calls for re-examination of presumption of finality in sentencing, with implications for federal habeas corpus petitions

In his exciting new essay Re-Balancing Fitness, Fairness, and Finality for Sentences, Professor Douglas Berman considers when a criminal defendant’s final sentence—after exhausting state court Phoenixappeals—may be reviewed or reconsidered by a federal court on account of “subsequent legal developments” pursuant to a writ of habeas corpus. For a writ of habeas corpus to issue, a criminal defendant must first demonstrate by clear and convincing evidence that the state court’s decision violated the defendant’s constitutionally protected rights. If there has been a constitutional violation, the defendant then must prove by “clear and convincing evidence” that the state court’s decision was contrary to constitutional law, or that its decision was unreasonable under the particular facts of the case.

The consideration of “sentence finality,” argues Professor Berman, ought to account for relevant distinctions between habeas corpus petitions for review or reconsideration of convictions and those for sentencing, a difference currently missing from finality discussions by courts and commentators.* He concludes:

I strongly believe that lawmakers and judges should be inclined to reverse the standard finality presumption [when] a defendant is challenging only his extended on-going prison sentence based on consequential new developments… Put another way, I contend that finality concerns ought to presumptively recede when a defendant challenges an extended prison term, especially if and when the relief sought is not reversal of past punishments already endured, but merely a new assessment of significant scheduled future punishments still in the offing.

To begin with, the historical record does not evidence a commitment to finality in sentencing at the time of the nation’s founding. To the contrary, early sentencing practices coupled with various provisions of the federal constitution suggest a desire that judges and correctional officials retain discretion in the imposition of sentences. In fact, the desire for finality is a relatively new phenomenon. Professor Berman observes that discretion was the norm until the 1960s when support for retributive sentencing policies began gaining popularity.

This historical reality should inform consideration of this period’s debate over the finality of criminal judgments in two critical ways: (1) because it was widely understood (and still well-accepted) that all sentences were indeterminate and subject to review and reconsideration by corrections officials, advocates stressing the importance of treating criminal judgments as final were necessarily focused only on finality of criminal convictions; and, (2) any problems or harms resulting from giving too much weight to the interest of finality for criminal convictions were necessarily mitigated by parole mechanisms which allowed reconsideration of any and all criminal sentences that might later be considered unfit or unfair based on subsequent legal or social developments.

Moreover, the conceptual justifications for finality vary depending on the nature of the defendant’s request—whether it pertains to the conviction or the sentence. As reflected by contemporary standards, whereas criminal trials demand determinations about “historical factual issues to be reflected by” the rote decision as to the defendant’s guilt or non-guilt, sentencing requires an examination of a much broader set of considerations to ensure that the outcome of this more nuanced decision reflects “just and effective punishment” for the wrongdoing. As Professor Berman explains:

Put most simply, sentence finality is a concern different in kind from conviction finality, and thus the finality balance struck for convictions, whatever its merits or flaws, should not, in modern times, be unthinkingly applied when a defendant only seeks review or reconsideration of an on-going sentence.

These historical, conceptual, and practical differences ought to affect the way courts analyze challenges to the standard finality presumption. That is, an inmate’s habeas corpus petition ought to receive less exacting scrutiny than a plea to review a conviction.

I’m no expert, but I find Professor Berman’s thesis persuasive. I’ve long been troubled by laws limiting the discretionary authority of those responsible for sentencing decisions, such as mandatory minimum sentencing, which shifts sentencing decisions from decision-makers to prosecutors.  I also worry about faith in the nonexistence of—or perhaps ambivalence to—future circumstances that might provoke just challenges to today’s sentencing decisions—e.g. the disparity in sentencing for possession of crack and powder cocaine. Professor Berman’s bifurcation of finality in convictions and sentencing seems to go a long way towards the creation of doctrine that is more responsive to the demands of justice than the current standard.

* Professor Berman also is committing a series of posts to several issues raised by his article at his renowned legal blog, Sentencing Law and Policy.

May 15, 2014 in Prisons and Prisoners, Reasonableness | Permalink | Comments (0)

"Gideon and the Effective Assistance of Counsel: The Rhetoric and the Reality"

The title of this post comes from this intriguing paper by Professor David Rudovsky, the abstract of which states:

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to provide adequate remedial measures to ensure that appointed counsel have the time and resources necessary to meet their constitutional obligations. 

I propose a litigation strategy as a means of confronting the issues of funding and resources that incorporates both Sixth Amendment and professional responsibility standards to enable courts to order structural relief in cases of systemic deficiencies. The Supreme Courts of Florida and Missouri have recently applied these principles in permitting public defenders to withdraw from cases where excessive caseloads and under-funding have interfered with their ethical obligations to their clients. Recognizing that the Strickland post-conviction test was not the sole means of enforcing Sixth Amendment rights, these courts permitted pre-trial challenges that did not depend on a showing of sub-standard performance or actual prejudice in an individual case. Other courts have permitted pre-trial challenges as well and the United States Supreme Court has recognized the significance of a lawyer’s professional judgments and obligations in fulfilling their ethical and constitutional duties. 

The article concludes by discussing three cases from Pennsylvania that show both the promise and the difficulties of litigation in achieving systemic reform.

May 15, 2014 | Permalink | Comments (1)

"Is the NSA Spying Upon Judges?"

The question posed by the title of this post comes from this Courthouse News Service article on one reporter's lawsuit to compel the NSA to disclose requested documents potentially revealing whether the scope of its surveillance extends into judges' chambers.  It reports:

The 7-page lawsuit tersely summarizes the controversies stirred up by NSA spying on foreign leaders and U.S. citizens, and recent judicial rulings on it.

 

[Jason] Leopold claims that, in a fine example of Orwellian doublespeak, the NSA refused a senator's inquiry on whether it spies upon members of Congress, by replying that it can't tell because it's not allowed to examine its own collection of metadata unless it thinks a specific phone number may be associated with a specific foreign terrorist group.

 

Leopold says in the lawsuit: "The vast scope of the NSA's surveillance program has raised questions about whether the agency has spied on the coordinate branches of the federal government. In response to an inquiry from Sen. Bernie Sanders about whether the NSA spies on members of Congress, NSA director Gen. Keith Alexander responded, 'Nothing NSA does can fairly be characterized as 'spying on members of Congress or other American elected officials[.]' But the response stated that the agency could make no guarantees that representatives or senators have not had their telephone metadata caught in broad government sweeps. Further, Alexander did not rule out the possibility that the NSA would, in the future, examine the telephone metadata of specific members of Congress or other American elected officials. According to Alexander, 'The NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups' and '[f]or that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.' But according to Sen. Feinstein, such a query apparently does not require approval from the FISA court.

 

"Jerrold Nadler, an attorney and congressman on the House Judiciary Committee who attended a secret briefing, relayed that he was told that the contents of a phone call could be accessed 'simply based on an analyst deciding that.' "These revelations beg the question of whether the NSA has spied on the third branch of government, the judiciary.

 

"Little is known about whether the NSA has surveilled judges or their staff. With regard to spying on lawyers in the United States more generally, a recent report published by the National Lawyers Guild, 'Breach of Privilege,' details covert governing spying on the legal profession by federal agencies, including the NSA.

 

"The NSA, and the executive branch more generally, have a powerful incentive in intercepting communications involving judges or their staff. For example, the NSA might desire to learn about deliberations by this court in cases involving Guantanamo detainees, or in cases involving the Foreign Intelligence Surveillance Court. It is not beyond peradventure that the NSA would conclude that such deliberations are relevant to an investigation into foreign terrorism and that a federal judge's phone number could be 'associated' with a foreign terrorist organization, in the broadest sense of that word.

 

"The Department of Justice, one of the defendants in this case, has previously taken the position that it has the legal authority to mislead federal courts on issues involving national security. Islamic Shura Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114, 1117 (C.D. Calif. 2011) ('The Government asserts that it had to mislead the Court regarding the Government's response to Plaintiffs' FOIA request to avoid compromising national security.') To an agency which has taken the position that federal judges cannot be trusted to avoid compromising national security, it would be a logical step to approve, or at least to consider, surveillance of judges who handle national security cases. " 

May 15, 2014 in Fourth Amendment | Permalink | Comments (0)

Wednesday, May 14, 2014

"Unreasonable Doubt: Warren Hill, AEDPA, and Georgia's Unconstitutional Burden of Proof"

The title of this post comes from this recent paper by Professor Adam Lamparello, the abstract of which states:

Georgia’s “beyond a reasonable doubt” standard for determining intellectual disability has led to an absurd — and arbitrary — result. A Georgia state court held that defendant Warren Hill was intellectually disabled, yet still sentenced Hill to death. Seven experts — and the court — deemed Hill disabled under a preponderance of the evidence standard. He remains on death row, however, because Georgia’s “preposterous burden of proof” requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. It “effectively limits the constitutional right protected in Atkins,” and creates a conditional, not categorical, ban. It also highlights a deeper problem: the process for determining who faces execution resides in an abyss of arbitrariness where death is not “different,” and “individualized consideration” is illusory.

May 14, 2014 | Permalink | Comments (0)

"Sallie Mae ordered to pay $96.6M for violating troops’ rights"

The DOJ is ordering the nation's largest loan servicer to pay restitution and penalties for "systematically violating the legal rights of U.S. service members." The title of this post comes from this Air Force News Service article, which explains:

UnknownA 2012 CFPB report found that service members faced serious hurdles in accessing their student loan benefits, including the provisions of the Servicemembers Civil Relief Act that cap the interest rate on pre-existing student loans and other consumer credit products at 6 percent while the service member is on active duty, CFPB officials said. Servicers were not providing them with clear and accurate information about their loan repayment options.

 

The CFPB heard from military borrowers, including those in combat zones, who were denied interest-rate protections because they failed to resubmit unnecessary paperwork. These kinds of obstacles prevent service members from taking advantage of the full range of protections they have earned through their service to this country, officials said.

 

The CFPB has partnered with the Defense Department to create better awareness of the rights and options for service member student loan borrowers. A CFPB guide for service members who have student loans contains clear information on the various ways student loans can be repaid.

 

Officials noted that the CFPB began accepting student loan complaints in March 2012, and added that service members who have an issue with their servicers should submit a complaint to the CFPB.

May 14, 2014 in Department of Justice | Permalink | Comments (0)

Proponents of marriage equality celebrate Arkansas, Idaho decisions while awaiting ruling on Utah, Oklahoma same-sex marriage bans

The success of same-sex marriage proponents continued yesterday as U.S. District Magistrate Judge Candy Dale ruled that Idaho's same-sex marriage ban violated the constitutional rights of same-sex couples. According to the AP:


Supreme-court-protest"The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries," Dale wrote, saying same-sex couples in Idaho have been denied the economic, emotional and spiritual benefits of marriage.

 

"Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love," she wrote.

Of course, Idaho governor C.L. "Butch" Otter plans to appeal the decision, although the futility of such efforts appears evident. Judge Dale's decision is just the latest in a series of successful challenges to state laws banning same-sex marriage since the Supreme Court's decision in United States v. Windsor last summer. In Windsor, the Court held the federal government's definition of marriage under the Defense of Marriage Act (DOMA) as between a man and a woman denied equal protection of the laws to same-sex couples. After Arkansas's top court struck down its ban last Friday, 18 states and D.C. now legally recognize same-sex marriages. This number might soon increase, too. The Tenth Circuit is expected to issue its decision on the constitutionality of Utah's and Oklahoma's bans any day now, although uncertainty clouds expectations for the Fourth Circuit's pending decision as to Virginia's ban.

Meanwhile, advocates continue to raise challenges to laws against same-sex marriages. As The Salt Lake City Tribune's Marissa Lang recently reported:

As of late last week, there were 72 lawsuits pending in state and federal courts of 32 states and territories that challenge state laws banning or limiting same-sex marriage...

 

Alaska — which approved a constitutional amendment banning same-sex weddings in a 1998 referendum and then made it illegal for gay and lesbian couples to achieve any form of civil union or domestic partnership in 2007 — is the only state in the country whose law is not being challenged in court.

Even Alaska no longer can distinguish itself as the only state whose same-sex marriage ban remains unchallenged. Five same-sex couples filed suit yesterday to overturn the state's ban as a violation of the fundamental right to marry. 

CRL&P related posts:

May 14, 2014 in Equal Protection Clause, Same-sex marriage | Permalink | Comments (0)

Tuesday, May 13, 2014

Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'

Today, the Fifth Circuit stayed Texas's scheduled execution of Robert James Campbell for the 1992 rape and murder of a 20-year-old woman. Campbell's attorneys claim the state can't execute him because he's "intellectually disabled," proof of which state officials allegedly concealed. If true, according to SCOTUS precedent, the Eighth Amendment's prohibition on cruel and unusual punishments prevents Campbell's execution. As WaPo's Mark Berman and Karen Brooks Harper report:

The U.S. Court of Appeals for the 5th Circuit in New Orleans ruled Tuesday afternoon that the execution be stayed, saying that although it was regrettable that it took until “the eleventh hour” for the court to review evidence of the inmate’s intellectual disability, that was not the fault of Campbell or his attorneys.

 

“Because of the unique circumstances of this case, Campbell and his attorneys have not had a fair opportunity to develop Campbell’s claim of ineligibility for the death penalty,” Judge James L. Dennis wrote for the court. “In light of the evidence we have been shown, we believe that Campbell must be given such an opportunity.”

 

It’s unclear how long the execution will be stayed. There is no set time for the stay, said Jason Clark, a spokesman for the Texas Department of Criminal Justice.

Campbell's attorneys also have appealed Texas's secrecy as to pharmacy providing the killing drug, which purportedly presents a substantial risk that it could cause Campbell excruciating physical and mental pain. Last month, state officials halted Clayton Lockett's execution in Oklahoma after he appeared distressed, but he died of a heart attack 43 minutes after the procedure began. Unlike Oklahoma's three-drug cocktail, however, Texas only uses pentobaritral, which state officials claim has killed efficiently since its adoption two years ago.

May 13, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

After breathalyzer and blood test, man suspected of drunk driving subjected to forced catheterization

In Indiana, 23-year-old William Clark alleges that local police violated his civil rights by subjecting him to forced catheterization after he failed to provide a urine sample on his own. He had been arrested on suspicion of driving drunk. As this local article reports:

PoliceLightsAccording to his lawsuit, Clark submitted to a blood test at the Dyer hospital that showed his blood alcohol was below the legal limit. It states [Officer Matthew] Djukic, however, became impatient with Clark's inability [sic] to provide a urine sample and made an effort to forcibly get the sample. The suit claims Djukic physically restrained Clark while hospital personnel inserted a catheter to extract the fluid.

Clark says the forced catheterization was "painful, degrading and humiliating." Among other things, he alleges that it amounted to excessive force, and he’s seeking more than $10 million in total damages.

Excessive force claims usually are analyzed under the Fourth Amendment, which protects citizens’ “persons, houses, papers, and effects” from “unreasonable searches and seizures” by law enforcement. A reasonable search or seizure generally is one supported by a warrant issued by a magistrate, although certain circumstances may justify waiving the requirement. Such is the case when the search is likely to produce evidence of criminality, and when the warrant requirement is impractical.

In Schmerberg v. California, the Supreme Court held that warrantless blood testing for alcohol by law enforcement squares with the Fourth Amendment’s prohibition on unreasonable searches. Because the body works to eliminate alcohol as soon as drinking stops, the application of the warrant requirement to drunk driving cases would prevent discovery of needed evidence. Blood testing also is “a highly effective” means of determining one’s level of intoxication.

But a prick of the finger is less invasive than catheterization. Blood testing usually requires only the exposure of one’s finger to momentary discomfort. Forced catheterization requires exposing one’s genitals to medical staff so that a tube may be inserted into the urethra, allowing for the collection of urine directly from the bladder. The procedure could last a minute or more. Because some people experience severe pain, local anesthetic is occasionally used. The propriety of the warrantless procedure is also specious given Grant’s submission to both a breathalyzer and a blood test—less invasive, but effective, alternatives to urinalysis.

As one federal judged argued, unlike blood testing, “the Fourth Amendment’s protection of human dignity and privacy might require a warrant at the very least before government officials could compel a citizen to undergo a catheterization.” Officer Djukic didn't have one, and the existence of exigent circumstances justifying forced catheterization is doubtful.

Still, even assuming the validity of Grant’s excessive force claim, Officer Djukic may nevertheless be immune from legal action if a reasonable officer wouldn’t have known the forced catheterization violated Grant’s rights.

(h/t Debra Cassens Weiss at the ABA Journal Blog)

May 13, 2014 in Excessive Force, Fourth Amendment, Search | Permalink | Comments (1)

"Qualified Immunity and Statutory Interpretation"

The title of this post comes from this recent paper, the abstract of which states:

Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases — now under the Fourth Amendment and 42 U.S.C. § 1983 — inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next.

Part II of this Article describes the evolution of this qualified immunity doctrine and demonstrates how common law immunities were traditionally held to have been incorporated into § 1983 by the Congress of 1871 as a matter of statutory interpretation. It claims that only when the Court began hearing federal Bivens actions and created an immunity doctrine untethered from statutory interpretation, the common-law approach was lost and the modern, nearly insurmountable qualified immunity doctrine was adopted. 

Part II thus establishes the historical importance of common-law interpretation to § 1983 suits. Part III then shows how differently excessive force cases would have to be treated were the court to return to the common law interpretive methods in § 1983 cases. At common law, excessive force actions were quite common and more liberal toward plaintiffs seeking redress; officers were expected to pay damages for any unnecessary force; and it was the province of the jury to determine such questions. Parts IV-V then make the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive-force actions, an approach that would also be far more judicially workable than the current doctrine.

May 13, 2014 in 42 U.S.C. § 1983, Excessive Force | Permalink | Comments (0)

Monday, May 12, 2014

"Too Much Information: How Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this upcoming paper by Professor David Alan Sklansky, the abstract of which states:

Fourth Amendment law today is overloaded with information: not just in the sense that the explosive growth of digitized information requires rethinking traditional rules of search and seizure, but also and more importantly in the sense that a preoccupation with data flows has led to the neglect of important dimensions of privacy. There is no doubt that the control of personal information is an important value and one uniquely threatened by the rise of social media, by the proliferation of technological surveillance, and by the arrival of Big Data. But the reduction of privacy to control over information has made it difficult to think sensibly about the distinctive threats posed by government searches, and it is partly to blame for the growing and unwarranted idea that the Fourth Amendment should be decoupled from privacy - an idea variously motivated by a belief that the concept of privacy is meaningless, by the fear that privacy is dead or dying, and by a sense that the main threats to privacy today are orthogonal to the chief dangers posed by law enforcement. Search and seizure law would be better served by an understanding of privacy rooted in respect for a zone of refuge and informed by privacy’s longstanding associations with enclothement, retreat, and personal sovereignty. This alternative conception of privacy - privacy as refuge - should also be attentive to the relational nature of privacy, the connection between privacy and civility, and the effects of privacy violations on the perpetrators as well as the victims.

CRL&P related posts:

May 12, 2014 in Fourth Amendment, Search, Seizure | Permalink | Comments (2)

"When it Comes to Civil Forfeiture in Texas, You Have No Property Rights"

The title of this post comes from this incredible story by the Texas Observer's Forrest Wilder about Texas v. One 2004 Chevrolet Silverado, a case which demonstrates how local police and prosecutors in Texas have abused the state's civil forfeiture laws. Wilder writes:

A used-car salesman in Houston, Zaher El-Ali, had sold the Silverado, on credit, to another man, who was later arrested for drunk driving and cocaine possession. El-Ali held title to the vehicle while the man paid off the truck. He had nothing to do with the crimes. But that didn’t stop local law enforcement from seizing the vehicle as “contraband” and filing suit against the truck (thus the strangely titled lawsuit). If El-Ali wanted to keep the truck he would have to hire Imagesan attorney and prove that he was an “innocent owner”: a legal standard higher than the one faced by criminal defendants.

 

[...]

 

El-Ali chose to fight the seizure on fundamental grounds. Rather than mount an “innocent-driver” defense, El-Ali challenged the constitutionality of putting the burden of proof on him to prove his innocence. He lost at both the trial and appellate level, and the suit landed last year at the Texas Supreme Court. You’d think that Texas’ highest civil court—overseen by nine conservative Republicans—would be sympathetic to a case that turns so pivotally on property rights and the relationship between individuals and the state. After all, the court has adopted an increasingly fundamentalist view on property rights over the past decade. In rulings on the ownership of groundwater, the power of eminent domain and the right of access to public beaches, a majority of the court has embraced a view that enshrines private property rights as essential to “freedom itself,” as the court put it in one recent ruling.

 

But in El-Ali v. Texas, the court declined to review the case, pointing to a 1957 decision—the last time the court weighed in on civil forfeiture. The collective yawning of the majority didn’t sit well with three of the justices. Justice Don Willett, in a scathing dissent signed by two others, ripped his colleagues for punting. Willett bangs all the conservative gongs, quoting James Madison and Edmund Burke and opining that the case “evokes less Chevy than Kafka.”

 

“Forfeiture 2014-style is not forfeiture 1957-style 21st-century practice merits 21st-century scrutiny,” he wrote, noting that the vast expansion in the use of civil forfeiture occurred after the Legislature broadened the statute’s scope in 1989 to include a grab-bag of felonies and misdemeanors, and allowed cops and courts to split the profits. “In the quarter-century since, we have yet to revisit the protections due in such proceedings.

 

“A generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals. Today, it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong.”

May 12, 2014 | Permalink | Comments (0)

Missouri inmate seeks halt to his upcoming execution

Death row inmate Russell Bucklew is seeking an emergency injunction to prevent Missouri from killing him. Bucklew claims he has a rare medical condition the will cause "tortuous pain" during his execution, in violation of the Eighth Amendment's prohibition against "cruel and unusual punishments." The Courthouse News Service (CNS) tells his story:

Bucklew was convicted in 1997 of first-degree murder, kidnapping, first-degree burglary, rape and armed criminal action. He shot Michael Sanders to death and then kidnapped his ex-girlfriend and raped her before being wounded in a shootout with police.

 

Later, Bucklew escaped from prison and attacked his ex-girlfriend's mother with a hammer. A prosecutor called Bucklew "a homicidal Energizer bunny" because of his persistence in going after his victims, the Southeast Missourian reported.

 

In his lawsuit, Bucklew claims he has a vascular tumor that will cause extreme pain and suffering, violating his Eighth Amendment rights, if he is executed by lethal injection on May 21.

 

"The size of Mr. Bucklew's tumor and the weakness of his distended vessels create a very substantial risk that he will suffer excruciating, even tortuous pain during an execution," the complaint states.

 

"Because the vascular tumor partially obstructs Mr. Bucklew's airway, he is at high risk of choking during an execution, particularly if distended vessels in his mouth or throat rupture and bleed. This will cause gasping and coughing that Mr. Bucklew will experience as suffocation.

 

"There is also a grave risk that, because of Mr. Bucklew's severe vascular malformations, the lethal drug will not circulate as intended, delaying the suppression of the central nervous system and prolonging the execution - which will likely cause excruciating pain to Mr. Bucklew. These risks are heightened by the use of a compounded drug, pentobarbital, in the absence of any disclosure about the drug's safety, purity and potency. In fact, the Department of Corrections will not even confirm whether the drug is subject to any laboratory testing whatsoever."

 

Bucklew claims the state has no protocol for executing a prisoner with a complex medical condition such as his, and that a qualified physician should be in the chamber for the sole purpose of reviving him if the execution is not successful. 

Lethal injection has become the topic of considerable debate since European producers of sodium thiopental withdrew the drug from the market. As a result, some states have turned to drug cocktails produced by domestic compounding pharmacies. They often keep the identity of these pharmacies anonymous, allegedly out of some concern about retaliation from anti-death penalty activists. These secrecy laws have been repeatedly challenged in court.  

The lethal injection itself has drawn considerable attention after two highly publicized executions in Ohio and Oklahoma. In Ohio, Dennis McGuirre's execution lasted 26 minutes, during which he reportedly writhed in pain and gasped for air. Oklahoma executed Clayton Lockett two weeks ago with similar results. Lockett's execution was halted by the on-site doctor after he showed signs of distress, but he died of a heart attack 43 minutes after the procedure began. Following his death, the state agreed to a six-month stay of execution for the inmate who had been scheduled for killing the same night as Lockett so that an investigation can be completed. The NYTimes recently said the United States has "no business putting people to death by any means." It described the death penalty as "barbaric, racist," and it called states' secrecy as to the providers of lethal injection drugs "cowardly."   

Missouri's lethal injection protocol is much like that of Oklahoma.  

CRL&P related posts:

May 12, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (2)

Friday, May 9, 2014

"Race as a Tool in the Struggle for Political Mastery: North Carolina's 'Redemption' Revisited 1870-1905 and 2011-2013"

The title of this post comes from this intriguing paper by Professor Michael Kent Curtis, the abstract of which states:

The article discusses in depth and in historical perspective the use of racial tools to achieve political dominance in North Carolina’s 2011 redistricting. 

Prominent among these 2011 tools has been the use of racial quotas purportedly justified by theVoting Rights Act to add more black voters to districts that have been quite safe for black candidates and to subtract more white and other voters from the purported voting rightsdistricts. These devices serve to disrupt biracial coalitions by packing additional African Americans in selected super-safe districts and removing them from others, undermining multi-racial coalitions and increasing racial polarization. 

The effect, of course, is to deprive blacks of many of their white allies. In the past in North Carolina we have had a black Speaker of the House and black committee chairs. Effective disruption of a biracial coalition has provided a few more black representatives and many fewer white ones — but has helped to leave black representatives as a larger part of a more powerless party in the legislature. This emphasis on disrupting a bi or multiracial coalition and to portray a “black party” and a “white party” is a new chapter in an old story. That earlier history is explored in the article. 

While quotas are increasingly disfavored by the current Court, here the legislature (purporting to follow the law) had two quotas — more 50% black voting age population districts and black representatives in the legislature in proportion to the overall black voting age population of the state. While many justices on the Court have expressed Fourteenth Amendment concerns about entrenching racial districting, the dual quotas have done both. As a means of containing expanding racial districting and its quotas, the article suggests a strategy and tests for containment — at least limiting creation of new districts for no good purpose and protecting multiracial coalitions from decimation to meet dual quotas.

The case discussed here is currently before the North Carolina Supreme Court. If that decision comes out before publication, it can easily be revised to take account of the decision, which seems likely to follow the decision of the trial court which is criticized.

May 9, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Thursday, May 8, 2014

"Oklahoma attorney general agrees to 6-month stay of execution after botched lethal injection"

The AP reports:

Oklahoma's attorney general agreed Thursday to a six-month stay of execution for a death row inmate while an investigation is conducted into last week's botched lethal injection.

 

Attorney General Scott Pruitt's office filed court documents Thursday saying it wouldn't object to a 180-day stay of execution being sought by attorneys for inmate Charles Warner while the investigation is underway.

 

Warner was scheduled for execution on the same night last week as Clayton Lockett in what would have been the state's first double execution since 1937. But Lockett's vein collapsed during his lethal injection, prompting prison officials to halt the execution. He later died of a heart attack.

 

Gov. Mary Fallin then issued a two-week stay of execution for Warner, but his attorneys asked for a six month delay. Pruitt's office agreed in a motion filed with the Oklahoma Court of Criminal Appeals, and if the court agrees, Warner's execution would be postponed until Nov. 13.

The news comes just days after Clayton Lockett's botched execution for the brutal murder of a 19-year-old woman. The execution lasted 43 minutes. While strapped to the gurney, Lockett reportedly writhed in pain. Although officials eventually suspended the execution, he died of cardiac arrest shortly thereafter. 

Lockett's execution came after a failed legal challenge to Oklahoma's secrecy as to the identity of the pharmacy providing the drug cocktail for his execution. Oklahoma is one of several states that protects the anonymity of these sources claiming such measures are necessary to protect the suppliers from retaliation by anti-death penalty advocates. This protection has come under increasing scrutiny as traditional European suppliers of sodium thiopental, the drug formerly employed in executions, have ceased exporting the drug to the U.S.

Several states now employ drug cocktails provided by compounding pharmacies. Lockett's execution, for example, began with an extraordinarily large dose of the sedative midazolam. He then received the paralytic pancuronium bromide, followed by potassium chloride to stop his heart. 

Officials in Oklahoma attribute the procedural problems in Lockett's execution to difficulty locating suitable veins in which to inject the drugs.

Note: The original link to the AP's article reporting Oklahoma's 6-month stay has been replaced with its more substantive follow-up.

May 8, 2014 in Theories of Punishment | Permalink | Comments (0)

Citizens attempt citizen's arrest of Albuquerque police chief following series of deadly shootings

The Albuquerque Police Department has become the object of increasing scrutiny ever since the DOJ issued a report on the joint investigation by the department's Civil Rights Division and the U.S. Attorney’s Office for the District NMalbu1of New Mexico into the police's use of force during arrests. The report found that police conduct evidenced “a pattern and practice of the use of excessive force, including deadly force.” According to the report, the police have been involved in 39 deadly shootings since 2010. It further states: 

We found only a few instances in the incidents we reviewed where supervisors scrutinized officers’ use of force and sought additional investigation. In nearly all cases, supervisors endorsed officers’ version of events, even when officers’ accounts were incomplete, were inconsistent with other evidence, or were based on canned or repetitive language. The department has also failed to implement its force policies consistently, including requirements that officers properly document their use of force, whether by lapel cameras, audio tapes, or in reports. The department does not use other internal review systems, such as internal affairs and the early intervention system, effectively. These internal accountability and policy failures combine with the department’s inadequate training to contribute to uses of excessive force. Additionally, serious limitations in the City’s external oversight processes have allowed many of these deficiencies to continue unabated. 

 

As a result of the department’s inadequate accountability systems, the department often endorses questionable and sometimes unlawful conduct by officers. The prior criminal history and background of individuals who are the subject of police force also typically receive greater scrutiny than the actions of officers. These practices breed resentment in the community and promote an institutional disregard for constitutional policing.

The Albuquerque police recently have been involved in three deadly shootings that have made an already tense situation even worse.

First, police killed a homeless man (see for video of the incident) armed with only a knife. The altercation arose after police confronted the man for camping illegally, and video of the incident appears to show police firing several bullets into the man’s back as he turned away from them. They then fired several ‘non-lethal’ bullets at the limp body, raising the obvious question as to the necessity of using live ammunition in the first place.

Last month, police killed a 19-year-old woman suspected of auto theft after a prolonged pursuit on foot. The police allege the incident ended when the suspect turned and pointed a gun at the officer chasing her, who then shot her in self-defense. 

Then, last weekend, an hours-long standoff between police and a man allegedly holed up inside his home resulted in a third shooting. According to police, the suspect emerged from his home firing two handguns, and an officer on the scene returned fire. The suspect was pronounced dead on the scene.

Unsurprisingly, the recent shootings coupled with the critical DOJ report have exacerbated the already tenuous relationship between police and many of city’s residents. On Monday, protesters attempted a citizen’s arrest of the sitting police chief. As the AP reports:

As the threat of another tense standoff at an Albuquerque city council meeting brews, protesters angry over a series of police shootings are harkening back to the city's long history of civil disturbance and modeling their demonstrations after those including a notorious 1960s citizen raid of a northern New Mexico courthouse.

 

In 1967, protesters contending the US government stole millions of acres of land from Mexican American residents stormed a courthouse to attempt a citizen's arrest of the district attorney. During the raid, the group shot and wounded a state police officer and jailer, beat a deputy and took the sheriff and a reporter hostage.

 

Now a leader of this week's protest cited that episode as the motivation for the city council demonstration in which protesters attempted a citizen's arrest of the police chief

 

"That's where we got the idea for the citizen's arrest," said David Correia, a University of New Mexico American studies professor and a protest organizer. He wasn't advocating violence, but a focus on civil disobedience, saying participants were willing to be arrested.

 

It's an interesting turn of events in Albuquerque, where distrust of the police department is at an all-time high after an officer shot and killed an armed man following a weekend Swat standoff. Police in the city of 550,000 people have been involved in 39 shootings since 2010 and are under tough scrutiny following a harsh report from the US Justice Department over use of force. 

May 8, 2014 | Permalink | Comments (0)

Wednesday, May 7, 2014

"The Evolution of Employment Discrimination Law: Changed Doctrine for Changed Social Conditions"

The title of this post comes from this recent paper by Professor Michael Selmi, the abstract of which states:

Times change, and when they do, the law must as well. Much of the most important employment discrimination case law was established in the 1970s during an era when discrimination was both overt and pervasive. Moving forward forty years, discrimination has receded dramatically and is no longer seen as a default explanation for workplace decisions or statistical imbalances in a workforce. At the same time, the discrimination that remains is more complex, more subtle in nature and more difficult to identify. This article explores how the Supreme Court has navigated the declining but more complex nature of employment discrimination. In a series of recent cases, including the landmark sex discrimination case of Wal-Mart v. Dukes, the Supreme Court has embarked on a judicial updating of the foundation of employment discrimination law with the Court quietly announcing that the old case law no longer fits contemporary claims of discrimination. In other words, what counted as discrimination in the 1970s no longer does today. Despite the criticism the Court has received for its decisions, I conclude that the Court was right to shed its old doctrine as the inferences of discrimination that were permissible during an earlier era fail to account for our changed social conditions. The real problem with the Court’s recent updating of the doctrine is not the shedding of the old but what it has left in its place – the Supreme Court has failed to adapt its doctrine to capture the complexities of modern discrimination, thus leaving a substantial gap between what the law defines as discrimination and what we know about the difficulties of uncovering subtle discrimination. This article also critiques the recent academic emphasis on “implicit bias” and instead offers some suggestions for moving forward in a way that might better adapt the legal doctrine to the complexities of modern discrimination. This includes the use of testers to document workplace discrimination, more emphasis on educating courts and jurors regarding the nature of subtle discrimination (not implicit bias) and the role employer self-interests might play in bringing greater diversity to the workplace.

May 7, 2014 | Permalink | Comments (0)

First Amendment right to post mugshots online?

The First Amendment is the subject of considerable dispute, particularly as it relates to freedom of speech. The Founders left very little guidance as to what qualifies as speech, and thus SCOTUS and academics have been left to debate the merits of certain conduct as speech under the First Amendment on mostly theoretical grounds. Technological advances have drastically changed methods of communication, which, in turn, have made these inquiries even more difficult.

The Internet of course has increasingly drawn the attention of First Amendment scholars. The constitutionality of laws criminalizing revenge porn, for example, appears increasingly as the subject of debate. Many believe that these laws can be written narrowly enough so as to avoid infringing on otherwise valid First Amendment activity, while others feel that the very existence of such laws inevitably chills speech. 

Similarly, the propriety of posting mugshots online is being questioned, which some websites claim is protected First Amendment speech. The websites that publish the mugshots usually don't differentiate between persons convicted of crimes and those whose charges were later dropped. As Fox News's Dan Gallo reports:

At least seven states...recently pass[ed] laws to restrict websites from profiting off mugshots: Georgia, Illinois, Texas, Utah, Oregon, Colorado and Wyoming. Marc Epstein, a lawyer for Mugshots.com, told Fox News that such laws are unconstitutional and violate his client's First Amendment rights.

 

"Unpopular speech, unpopular actions are generally protected under the First Amendment, provided they're not illegal in other ways," Epstein said. "It's uncomfortable, perhaps. But it doesn't rise anywhere near the level of extortion. We threaten nobody."

 

Consumer attorney Brian Kabatek is suing one of the websites, which he accuses of legalized extortion.

 

"They're putting it out there not for some great public purpose," he said. "They're putting it out there for economic gain. And that's the only reason they're doing this."

May 7, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (0)

"Summary Judgment and the Reasonable Jury Standard: A Proxy for a Judge's Own View of the Sufficiency of the Evidence?"

The title of this post comes from this intriguing new article by Professor Suja A. Thomas, the abstract of which states:

Under motions for summary judgment, directed verdict, and judgment as a matter of law, judges employ the reasonable jury standard, deciding whether a reasonable jury could find for the non-moving party. This article explores the propriety of the reasonable jury standard, argues the standard has become a proxy for a judge’s own view of the evidence, and proposes renewed study of the standard.

May 7, 2014 | Permalink | Comments (0)

Monday, May 5, 2014

"Beyond the Opinion: Supreme Court Justices and Extrajudicial Speech"

The title of this post comes from this fascinating paper by Professor Christopher Schmidt, the abstract of which states:

This Article examines how and why Supreme Court Justices venture beyond their written opinions to speak more directly to the American people. Drawing on the history of the post-New Deal Court, I first provide a general framework for categorizing the kinds of contributions sitting Justices have sought to make to the public discourse when employing various modes of extrajudicial speech — lectures, interviews, books, articles, and the like. My goal here is twofold: to provide a historically grounded taxonomy of the primary motivations behind extrajudicial speech; and to refute commonplace claims of a lost historical tradition of Justices refraining from off-the-bench commentary about their work. I then turn to an analysis of the risks and opportunities for Justices who go beyond their written opinion. I argue that our understanding of the extrajudicial contributions of the Justices has too often been clouded by idealized, historically inaccurate assumptions about the Court and by exaggerated assessments of the potential costs of substantive, controversial extrajudicial speech for the Court’s legitimacy. Compared to the typical Supreme Court written opinion, extrajudicial speech allows for, even encourages, more personalized, more accessible, and potentially more effective pathways of communication with a general audience. By identifying the unique value of extrajudicial speech, I intend this Article to serve as an invitation for a more realistic and constructive discussion about the role of Supreme Court Justices in our constitutional democracy.

May 5, 2014 | Permalink | Comments (0)

Sunday, May 4, 2014

Libertarians seek injunction against court ruling removing gubernatorial candidate from Ohio ballot

The Libertarian Party of Ohio has been battling to get its gubernatorial candidate, Charlie Earl, on the state primary ballot next week. After repudiation by both Ohio Secretary of State Jon Husted and the Sixth Circuit, the LPO sought remedy from SCOTUS. The Columbus Dispatch reports:

The Libertarian Party of Ohio asked Justice Clarence Thomas yesterday to delay a ruling by a federal appeals court in Cincinnati that upheld the removal of the party’s candidates for governor and attorney general from the state’s primary ballot.

 

The party made the request in the U.S. Supreme Court a day after Justice Elena Kagan rejected its initial attempt to get a delay. The Libertarians hope Thomas will grant their appeal, a first step in having the high court hear the case before Tuesday’s primary.

Right now, Earl will not appear on next week's ballot because of a new ballot access law signed by incumbent governor John Kasich earlier this year. The law increases the number of signatures candidates and parties must obtain to appear on the ballot. Sec. Husted determined that the LPO's signatures for Earl and the party's candidate for attorney general failed to fulfill the requirements of the law, and the Sixth Circuit later agreed.

May 4, 2014 | Permalink | Comments (0)

"School Surveillance and the Fourth Amendment"

The title of this post comes from this recent paper by Professor Jason Nance, the abstract of which states:

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline. 

Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students’ educational interests. This Article maintains that in these circumstances students’ Fourth Amendment rights should not be abridged, but strengthened.

May 4, 2014 in Fourth Amendment, Schools, Search, Seizure | Permalink | Comments (0)

Saturday, May 3, 2014

"It was clear early on they had already made up their mind."

San Jose State University has sent three students packing and a fourth to counseling for their alleged crimes against their then-freshman classmate. As San Jose Mercury News's Tracy Kaplan reports:

All four had been suspended pending final disciplinary action for allegedly subjecting then-17-year-old Donald Williams Jr. to repeated abuse, including wrestling him to the ground and Unknownfastening a bike lock around his neck, calling him racially derogatory names, locking him in his room and displaying a Confederate flag.

 

The university's move comes after news surfaced in November that the freshman reported being tormented relentlessly for weeks. The revelation sparked community outrage, an internal investigation, an apology from the college president, criminal charges and the creation of a task force. All four suspects have pleaded not guilty to misdemeanor battery and hate crime charges.

An attorney representing one of the students called the university's decision "disappointing," and, as the title of this post notes, questioned whether the decision had even been made in good faith. Another student's attorney rejected that race had been a motivating factor for the students' conduct:

[Attorney Eric] Geffon and others contend the incidents were part of a broader series of pranks that included others in the dorm. Clamping the bike lock around someone's neck, for instance, was something the young men saw on Comedy Central, Geffon said.

 

"The first person in the dorm who had a bike lock put around his neck was my client, who is white," Geffon said. "It wasn't a racially motivated act."

 

Geffon said his client laughed, and the lock was removed. In Williams' case, according to campus police reports, he was told by the suite mates that they had lost the keys.

 

The young men may be involved in the hazing to varying degrees, as their lawyers have suggested. But according to campus police reports and emails between housing officials, the incidents included nicknaming the black student "Three-fifths," a reference to the way the government, for census purposes, once counted blacks as just a fraction of a person. When he protested, they dubbed him "Fraction."

May 3, 2014 | Permalink | Comments (0)

Wednesday, April 30, 2014

"Exorcising the voter fraud ghost"

The title of this post comes from Rick Hasen's commentary today for Reuters, which begins:

When it comes to the fight about voter fraud and voter suppression, how do you prove a negative

 

One key question in the battle over the legality of voter identification laws is whether such laws are necessary to prevent voter fraud and whether they suppress a lot of votes from eligible voters.

 

Though the answer to the second question remains in considerable dispute, after Tuesday’sfederal court decision striking down Wisconsin’s voter ID law, it is time for voter ID supporters to throw in the towel and admit state voter ID laws don’t prevent the kind of fraud they are supposedly targeted for.

 

Federal Judge Lynn Adelman looked at the evidence from Wisconsin and reached a conclusion unsurprising to those of us who study how elections are run. 

 

“Virtually no voter impersonation occurs in Wisconsin,” Adelman wrote, “and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future.”Wisconsin is not alone in lacking such evidence. When the United States Supreme Courtconsidered the constitutionality of Indiana’s voter ID law in 2008, the state conceded there was no evidence, ever, of impersonation fraud in the entire state.

 

This  is not surprising. Voter impersonation fraud is an exceedingly dumb way to try to steal an election. Someone would have to send people into polling places claiming to be others — either dead voters who have not been removed from the rolls, or people who have not yet shown up to vote, or fictitious people pre-registered and getting by any identification requirements when registering. Then the fraudster would have to hope that these imposters vote the way they were paid to.  The fraudster would have to do this in large enough numbers to affect the outcome of an election, while avoiding detection of this conspiracy.

Professor Hasen runs the incredibly helpful Election Law Blog.

(h/t How Appealing)

April 30, 2014 | Permalink | Comments (1)

Justice Stevens says "money is not speech."

The AP reports:

"While money is used to finance speech, money is not speech. Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive precisely the same constitutional protections as speech itself," Stevens said. "After all, campaign funds were used to finance the Watergate burglary, actions that clearly were not protected by the First Amendment."

April 30, 2014 in First Amendment, Freedom of Press | Permalink | Comments (0)

Tuesday, April 29, 2014

"The Obama Administration's Civil Rights Record: The Difference an Administration Makes"

The title of this post comes from this recent essay by Professor Michael Selmi, the abstract of which states:

This essay reviews the Obama Administration’s civil rights record during its first Administration, with a particular focus on the Civil Rights Division of the Department of Justice and the Equal Employment Opportunity Commission (“EEOC”). The review finds that although the Obama Administration has generally been supportive of progressive causes, particularly in the Supreme Court and among issues relating to gay men and lesbians, its enforcement activities have generally been quite limited. On a quantitative basis, the Obama Administration’s civil rights enforcement typically fall at the same or below levels of the prior Bush Administration, and with a few exceptions (mortgage discrimination and voting) the Administration has brought very few major cases. One interesting development is that the EEOC has become a far more aggressive enforcement agency than the Justice Department’s Civil Rights Division, as the EEOC has pursued a number of important and innovative issues that would move the law forward. At the same time, the EEOC’s actual number of cases filed has dropped significantly for the EEOC, as it is now bringing fewer claims than the agency did under the Bush Administration. Finally, the essay concludes that, while civil rights has not been a priority, the path it has taken follows the principles of the Democratic Party.

April 29, 2014 | Permalink | Comments (0)

Friday, April 25, 2014

"Republican Governors Association and The South Carolina GOP Launch Campaign Demonizing Candidate For His Work As A Criminal Defense Lawyer"

Professor Jonathan Turley has it.

April 25, 2014 | Permalink | Comments (0)

End of the Net Neutrality Era

Yesterday the FCC introduced new rules governing Internet service that "may end the Internet as we know it," which HuffPost's Gerry Smith helpfully explains in terms I can understand:

First off, the web could get more expensive. The impact on the average Internet user will likely not be felt right away. But over time, websites would probably pass on to consumers the costs of paying for high-speed access, according to Harold Feld, a senior vice president at the consumer group Public Knowledge.

 

In addition, it could become difficult to view certain websites owned by companies that can't afford to pay for access to an Internet fast lane, Feld said.

 

On top of Internet users potentially paying more, they would also be more confused, Feld said. Under the proposed rules, people would need to make sense of a fragmented Internet landscape where the time it takes to load an online video would depend on whether that website paid extra to their Internet provider. Consumers may start choosing their Internet providers based on which websites they like to visit.

April 25, 2014 | Permalink | Comments (0)

N.Y. limit on contributions by independent groups violates First Amendment, says federal judge

A federal judge in New York did precisely what many knew he would do - he struck down the state's limit on campaign contributions by independent groups. According to the NYTimes:

Money_tunnel2In a five-page opinion, Judge Crotty lamented the influence of outsize donations in today’s political system. He wrote that the voices of regular citizens “are too often drowned out by the few who have great resources,” and disagreed with some of the Supreme Court’s analysis in the recent case, McCutcheon v. Federal Election Commission.

 

But despite his concerns, Judge Crotty wrote that he had no choice but to follow the Supreme Court’s lead in that case and in the landmark Citizens United campaign finance case, as well as the guidance of the Second Circuit.

 

“Our Supreme Court,” he wrote, “has made clear that only certain contribution limits comport with the First Amendment.” 

April 25, 2014 in Election Law, First Amendment, Freedom of Speech | Permalink | Comments (0)

"S. Carolina Lawmakers Propose 'Stand Your Fetus's Ground' Law"

I did a double take to make sure this article didn't come from Wonkette or The Onion, but, alas, it did not. Despite already having a stand-y'er-ground law in South Carolina, the Courthouse News Service reports that the UnknownSenate Judiciary Committee has passed this entirely superfluous bill:

The bill defines an "unborn child" as "the offspring of human beings from conception until birth.

 

People may use deadly force to protect themselves and others against the threat of "imminent peril of death or great bodily injury" under the state's current law.

 

Supporters of the "Pregnant Women's Protection Act" claimed that without this law, pregnant women could face attacks that may cause them to miscarry, but that might not justify the use of lethal force.

April 25, 2014 in Gun Policy | Permalink | Comments (0)

Thursday, April 24, 2014

"The Play in the Joints of the Election Clauses"

The title of this post comes from this intriguing essay by Professor Derek T. Muller, the abstract of which states:

The Constitution delegates election administration to both the federal government and the state governments. But delineating the boundary between these sovereigns has not been a particularly easy task. The Supreme Court has not been inclined to offer precision regarding the proper scope of authority. This essay examines risk of overlapping roles in the Election Clauses among legislatures and executive officials, as litigation over those proper roles looms. It highlights the uncertainty in two recent Supreme Court opinions, Arizona v. Inter Tribal Council of Arizona and Shelby County v. Holder, and notes that the Court's jurisprudence has left considerable "play in the joints," not necessarily because the Election Clauses are in tension, but because of its unwillingness to explain how matters like voter identification and registration should probably be allocated. It identifies some initial solutions for categorizing certain types of election laws, and emphasizes the deep uncertainty in the existing jurisprudence.

April 24, 2014 in Election Law | Permalink | Comments (0)

"'A Sordid Case': Stump v. Sparkman, Judicial Immunity, and the Other Side of Reproductive Rights"

The title of this post comes from this article by Professor Laura T. Kessler, the abstract of which states:

This Article presents a new historical account of Stump v. Sparkman, one of the most controversial Supreme Court decisions in the past fifty years. Stump is the 1978 judicial immunity opinion in which the Supreme Court declared that judges are absolutely immune from liability for their official judicial acts. The case involved the involuntary sterilization of a fifteen-year-old girl pursuant to an ex parte court order issued by a state judge. The basic project of the Article is to show why this largely overlooked case is important in American constitutional law beyond the narrow issue of judicial immunity, recovering it as a canonical decision relevant to contemporary debates about constitutional reproductive rights and procedural due process. 

Stump emerged from an ongoing set of discussions about the nature and scope of then-nascent constitutional protections for reproductive rights, as well as access to the federal courts by civil rights claimants. These issues continue to be a matter of intense debate, as states and courts reign in the scope of reproductive rights, and as federal judges increasingly employ procedural rules limiting the ability of civil rights victims to pursue their claims and receive a decision on the merits in federal court. This Article’s close examination of the historical antecedents to these trends, as reflected in Stump, can help courts envision more just alternatives to the present course on these fundamentally important procedural and substantive questions.

April 24, 2014 | Permalink | Comments (0)

N.Y. Fed did not violate whistleblower laws by firing employee for allegedly refusing to falsify report

After allegeldy refusing to change a critical report on Goldman Sachs, former bank examiner Carmen Segarra claims that the Federal Reserve Bank of New York terminated her in violation of federal whistleblower protections. Yesterday, a federal judge held that she did not qualify as a whistleblower under federal law because she had not disclosed the Fed's alleged wrongdoings to a third party. As ProPublica's Jake Bernstein reports:

ImagesThe law, enacted in 1989 after the savings and loan crisis to protect bank examiners from outside interference, covers an individual who "discloses protected information to a third party, not when she is asked to alter that information," the judge ruled.

 

ProPublica reported Segarra's assertions about Goldman last year. In October, she filed a wrongful termination complaint naming the New York Fed and three of its officials.

 

The judge dismissed the claims against the three officials, saying the law could only be used to file lawsuits against institutions and not individuals. Known as the "depository institution employee protection remedy," it safeguards examiners who "provide information" about "any possible violation of any law or regulation."

 

In her ruling, Abrams also concluded that the Fed guidance Segarra cited — that Goldman Sachs have a firm-wide conflicts-of-interest policy — was only advisory and not a law or regulation. As such, it was not covered under the statute, the judge decided.

April 24, 2014 | Permalink | Comments (0)

NRA hopes for 'national reciprocity' law for traveling gun owners

At its upcoming national convention in Indianapolis, the National Rifle Association plans to promote a federal law permitting gun owners to travel across state lines with lisenced weapons. The LATimes reports:

In the past, the NRA has worked to get a national reciprocity bill, allowing guns that are licensed by one state to be legally carried across state lines. At present, the laws are a patchwork quilt, with about 40 states allowing some form of reciprocity.

 

In 2011, the GOP-controlled House of Representatives approved the National Right-to-Carry Reciprocity Act, intended to allow gun owners to travel more easily from state to state without worrying about whether their permit to carry a concealed weapon is valid. The legislation had bipartisan support, passing 272-154, with 229 Republicans and 43 Democrats voting yes.

 

But since the Senate was not going to take up the measure, the House action was essentially a show vote for lawmakers seeking to curry favor with the NRA and other gun rights advocates.

 

A similar measure failed in 2009 in the Democratic-led Senate, with a 58-39 vote that, although a majority, feel short of the 60 votes needed to overcome a filibuster. The closeness of that vote highlighted the power of the NRA, with its 5 million members, to pressure both parties on gun issues.

April 24, 2014 in Gun Policy | Permalink | Comments (1)

Oklahoma to hold first double execution in 80 years

Well, that didn't take long. Just days after staying the executions of two death row inmates, the Oklahoma Supreme Court announced on Wednesday that the inmates did not have a right to know the source of the 7 scissor tailed flycatchersdrug cocktails that would be used to kill them. The court dissolved the stays and the inmates soon will be executed.

Today, the governor announced that the state plans to carry out the exections of Clayton Lockett and Charles Warner on the same day. According to the AP:

It's rare for multiple executions to happen in one day, with only Arkansas, Illinois, South Carolina and Texas doing so since the death penalty was reinstated in the U.S. in 1976, according to the Washington, D.C.-based Death Penalty Information Center.

 

"I think it's actually becoming less common because states have deliberately spaced things out," said Richard Dieter, executive director of the center, which opposes capital punishment. "It takes a toll on a prison and its personnel."

 

The most recent occurrence of two inmates being executed on the same day was Aug. 9, 2000, in Texas. The last time Oklahoma did it was June 11, 1937, when convicted murderers Charlie Sands and Leon Siler were electrocuted.

 

Arkansas is the only state that has executed three inmates on the same day since 1976: once in 1994 and again in 1997. In both instances, all three executions were carried out in less than three hours, according to the Arkansas Department of Corrections.

April 24, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (4)

"Retired Justice John Paul Stevens: Marijuana Should Be Legal"

NPR's Scott Simon asked retired Supreme Court Justice John Paul Stevens if marijuana should be legalized under federal law:

"Yes," Stevens replied. "I really think that that's another instance of public opinion [that's] changed. And recognize that the distinction between marijuana and alcoholic beverages is really not much of a distinction. Alcohol, the prohibition against selling and dispensing alcoholic beverages has I think been generally, there's a general consensus that it was not worth the cost. And I think really in time that will be the general consensus with respect to this particular drug."

April 24, 2014 | Permalink | Comments (0)

"Election Law's Lochnerian Turn"

The title of this post comes from this upcoming essay by Professor Ellen D. Katz, the abstract of which states:

Part of a discussion on electoral “dysfunction,” this Essay suggests that the Roberts Court has come to view a good deal of contemporary electoral regulation as impermissibly redistributive. The Court, moreover, sees the type of political participation displaced by many contemporary regulations as a neutral baseline against which to gauge challenged regulations rather than itself the product of affirmative regulation. Put differently, this Essay presses the claim that the present Court confronts contemporary efforts to regulate the electoral process much like the Lochner Court approached progressive wage and hour legislation a century ago. It suggests that much of what the Roberts Court has been up to in the electoral arena may be explained by the dominant understanding of the Lochner era.

April 24, 2014 in Election Law | Permalink | Comments (0)

Teacher alleges strip search by school nurse violated Fourth Amendment

A teacher in Virginia has sued school officials for civil rights violations following an alleged strip search. According to her complaint, after the parent of one of her students reported a child with scabies, the assistant principle interrupted the teacher's class and escorted her from her classroom to the nurse's office where she was forced to remove everything but her undergarments. The nurse looked her over, but found nothing. The teacher then "returned to her class to continue teaching though very upset." According to the Courthouse News service:

[She] says the search violated her Fourth and Fourteenth Amendment rights to bodily privacy.

 

"Because a parent or guardian of the student made an unsupported allegation, with no rational connection to the plaintiff, the defendants responded with an intrusive search," she says in the lawsuit. "The search was unjustified at its inception, and the nature of the search as conducted - removing Ms. Anderson's clothes to inspect her body for mites - was not reasonable to the perceived or alleged problem in its scope, and unsupported by any objective facts."

 

Anderson, who says she suffers from severe mental anguish and embarrassment from the search, seeks $622,000 in damages.

April 24, 2014 in Fourth Amendment, Schools, Strip Searches | Permalink | Comments (0)

Wednesday, April 23, 2014

"Missouri executes inmate after Supreme Court turns down stay request"

UPDATE: SCOTUS also has reversed a lower court's decision overturning the death sentence given to a Kentucky man for the kidnap, rape and murder of a teenager in 1997. The AP reports:

Woodall pleaded guilty to kidnapping Hansen on Jan. 25, 1997, from a convenience store in western Kentucky. Woodall acknowledged that he raped the girl and slit her throat twice before taking her body to Luzerne Lake and throwing it in the water. DNA evidence, fingerprints and footprints led to Woodall.

 

A jury imposed a death sentence, but more than a decade later, a federal court found the jury instructions were flawed and overturned that sentence. The 6th U.S. Circuit Court of Appeals upheld that ruling in 2012.

 

Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito, Clarence Thomas and Elena Kagan joined Scalia's opinion reversing the appeals court.

 

To overturn a death sentence, Scalia said, Woodall had to show the decision involved an "unreasonable application" of clearly established federal law. But that standard can be met "only if the error alleged is so obvious that there could be no fairminded disagreement about its existence," Scalia said. In this case, the majority found the trial judge's decision was not unreasonable.

 

Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, said the "normal rule is that Fifth Amendment protections apply during trial and sentencing." Breyer said the high court's precedent was clear in requiring the no-adverse-inference instruction during a sentencing hearing.

---

SCOTUS has denied William Rousan's request for a stay of execution for the 1993 killing of a couple in Missouri by Rousan, his brother, and his son. After rehearsing the gory details of the crime, The Guardian reports:

Brent Rousan pleaded guilty to two counts of first-degree murder and was sentenced to life in prison without the possibility of parole. Robert Rousan co-operated with prosecutors and pleaded
guilty to second-degree murder. He served seven years in prison and was released in 2001.

 

Governor Jay Nixon declined William Rousan's clemency request Tuesday evening, clearing the way for the execution to proceed. In a statement explaining his decision, Nixon said he thought Rousan's sentence was appropriate for his alleged role as the mastermind behind the "cold-blooded plot" that led to the couple's slayings.

 

Earlier Tuesday, the US supreme court turned down Rousan's request to delay his execution.

 

Efforts to spare Rousan's life hinged an argument that has held little sway over the courts — concerns about the secrecy used to obtain the execution drug, and the possibility that a substandard drug could cause pain and suffering in the execution process.

 

Several states, including Missouri, now use compounded execution drugs purchased from unnamed pharmacies. Courts so far have allowed most executions to move forward. However, on Monday, the Oklahoma supreme court stayed the executions of two death row inmates who challenged the secrecy surrounding the process of procuring execution drugs.

 

Missouri has executed one death row inmate each month since November. Another Missouri inmate, Russell Bucklew, is scheduled for execution on May 21. Only Texas, with seven executions, has executed more inmates than Missouri's four so far in 2014. Florida has also executed four inmates this year.

April 23, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

DOJ announces clemency initiative to address crack and powder cocaine sentencing disparity

The DOJ announced today that thousands of non-violent drug offenders will be eligible for early release. Eligibility will depend on whether:

  • Crack_150-642c6bf99d87d6d0198d845e957b99ba980cecba-s6-c30They are currently serving a federal prison sentence that is longer than current mandatory sentences for the same offense.
  • They are nonviolent, low-level offenders without "significant ties to large scale criminal organizations, gangs or cartels.
  • They have served at least 10 years of their sentence.
  • They do not have a "significant criminal history."
  • They have demonstrated good conduct in prison.
  • They have no history of violence before or during their current imprisonment."

The new clemency guidelines reflect the DOJ's ongoing effort to mitigate sentencing disparities between crack and powder cocaine as a result of mandatory minimums before the 2010 Fair Sentencing Act.

NPR reports:

Inmates, the administration said, will be notified in coming days about the expedited clemency program, and how to access pro bono lawyers through a working group called Clemency Project 2014. The group, formed after Cole asked lawyers to help with the clemency initiative, includes federal defenders, as well as representatives from groups including the American Civil Liberties Union and the American Bar Association.

 

While the move has been hailed by groups working for fairness and sentencing, and also additional changes to mandatory minimum drug sentences – including bipartisan efforts on Capitol Hill – some prosecutors have expressed skepticism about the clemency initiative.

 

"Americans want to rest assured knowing that 10 years means 10 years, and life in prison means life in prison," says Scott Burns, head of the National District Attorneys Association. "Prosecutors' fears are that our low level of serious crime in America will begin to rise – and nobody will monitor the cost of re-arresting and re-prosecuting offenders when they commit new crimes."

April 23, 2014 in Theories of Punishment | Permalink | Comments (0)

Tuesday, April 22, 2014

Shelby County attorney sets sights on Texas apportionment scheme

Texas Observer reports that the Project for Fair Representation has a new project--diluting minority representative power in Texas's legislature. The one-man group represented Shelby County, Alabama in its successful challenge to the Voting Rights Act's preclearance requirement, which the Supreme Court struck down last year. Now, it aims to amend the way Texas apportions its representative districts. As the Observer's Christopher Hooks reports: 

The conservative group’s legal challenge objects to the fact that that number includes many people who can’t vote, including children, convicted felons and, most important, non-citizens—both undocumented migrants and permanent residents who are foreign nationals. The suit argues that counting people who aren’t eligible voters is a violation of the Fourteenth Amendment. The Project on Fair Representation wants the Legislature to attempt to draw senate districts Texasthat have an identical number of eligible voters, or citizen voting age population (CVAP.) Under that method, each senate district would be drawn to have about 502,000 eligible voters.

 

That might sound like a relatively innocuous change, but it would dramatically alter the political landscape in Texas. Redrawing districts under the new rules might decrease the political polarization in the state Senate—creating more ideologically-similar districts—but at the same time it would dramatically lessen the voice non-white voters have in the political process. Those who are too young to vote, or legally unable to vote, wouldn’t be counted as people when it comes to distributing representation in the state Senate. And urban areas like Houston, which have a large number of non-voting residents, would be effectively disadvantaged in the Senate.

 

The state senate districts with the highest number of non-voters are represented by state Sen. Sylvia Garcia (D-Houston) state Sen. Rodney Ellis (D-Houston) and state Sen. Eddie Lucio (D-Brownsville), all of whom currently represent both a large number of children and non-citizens. They’re also among the most progressive members of the Senate.

 

If the conservative group’s plan were adopted today, all three would have their districts redrawn to include more eligible voters. That would mean, especially in Houston, likely pulling from the region’s pool of Anglo voters, according to Li. And those senators would also represent more people than others. Poor and young residents of the district would effectively have their voices in the Senate diluted, as their elected senator found themselves with many more constituents than before.

 

Meanwhile, the senators who represent districts with fewest non-voters would include state Sen. Bob Nichols (R-Jacksonville) and state Sen. Craig Estes (R-Wichita Falls) who have whiter electorates. Their districts might not change much.

 

Li says the conservative group’s effort, if successful, might make certain Democratic-leaning districts more politically competitive. But asked specifically about Ellis’ and Garcia’s districts—the biggest outliers—he said the changes might be less about political affiliation than which voices are represented. “I don’t think the risk is that it becomes a Republican district per se,” he said. “But there clearly is a political benefit here, and the benefit doesn’t favor African-Americans and Hispanics.”

 

Moreover, he says, such a plan would be difficult to implement. The true number of voting eligible residents in a given area would be “very difficult to tabulate.” The Census doesn’t ask about citizenship status. And to exclude voting-age felons, you’d need to ascertain and track their status. “It’s really hard to do this on a state level,” he says, “especially in a state that’s as complicated as Texas.”

CRL&P related posts:

April 22, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Persuasion in Civil Rights Advocacy Symposium Michigan State University College of Law Call for Papers

MSU has issued this call for papers for its upcoming and exciting symposium titled Persuasion in Civil Rights Advocacy. Here's the information:

1240085Are you writing an article that addresses civil rights controversies from a perspective of persuasive methods in legal or social context? Are you looking for a venue for presentation and publication? 

 

We are delighted to announce this call for papers for a symposium examining Persuasion in Civil Rights Advocacy. The symposium is scheduled for Friday and Saturday, April 10-11, 2015, at Michigan State University College of Law. It is sponsored by the Michigan State Law Review and conceived, coordinated, and co-sponsored by the Research, Writing, and Advocacy program of Michigan State University College of Law. Presenters will speak at the symposium and publish their papers in a special edition of the Michigan State Law Review.

 

Your presentation and paper should examine persuasive methods used by either side or both sides in civil rights disputes. Selections from responses to the call for papers will add to a lineup of already-confirmed presenters, including the following scholars:

 

Keynote –  Erwin Chemerinsky: University of California, Irvine School of Law
Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law

 

Linda Berger: University of Nevada, Las Vegas, William S. Boyd School of Law
Family Foundation Professor of Law
Topic:  The Color-Blind Constitution: Unanticipated Consequences of Past Brief-Writing for Shaping Future Decisions Regarding Racial Classifications in Public Schools

 

Charles Calleros: Arizona State University, Sandra Day O’Connor College of Law
Topic:  Viewing Same-Sex Rights in the Context of the Evolution of Other Civil Rights

 

Nora Demleitner: Washington and Lee University School of Law
Dean, and Roy L. Steinheimer, Jr. Professor of Law

 

Linda Edwards: University of Nevada, Las Vegas, William S. Boyd School of Law
E.L. Cord Foundation Professor of Law
Topic:  Hearing Voices: Legitimate Uses of Non-Party Narratives in Abortion and Gay Rights Litigation

 

Matthew Fletcher: Michigan State University College of Law
Director of the Indigenous Law & Policy CenterTopic:  Advocacy and Candor before the Court; Inter-Tribal Complications

 

David Frakt: Office of Military Commissions, Defense Counsel at Guantanamo
Topic:  Representing Guantanamo Detainees

 

Luis Fuentes-Rohwer: University of Indiana, Maurer School of Law
Harry T. Ice Faculty Fellow
Topic:  Changing Conceptions of Racial Discrimination in Voting Rights

 

Michael Olivas: University of Houston Law Center
William B. Bates Distinguished Chair of Law, and Director of Institute of Higher Education Law & Governance
Topic:  Who Gets to Control Civil Rights Case Management?

 

Ruth Anne Robbins: Rutgers University School of Law - Camden
Director of Lawyering Programs
Topic:  Right to Counsel at Domestic Violence Restraining Order Hearings: Working with Student-Written Amicus Briefs

 

Pamela Wilkins: University of Detroit Mercy School of Law
Associate Dean for Academic Affairs
Topic:  Jury Instructions and Defense Arguments on Race Switching: What the Evidence Shows in Cross-Racial Criminal Cases

 

In addition, the Radicalism Collection of the Michigan State University Library will have an exhibition of pamphlets and other items.

 

The deadline for submissions is Friday, October 10, 2014, 5:00 PM Eastern Time.  Michigan State Law Review anticipates notifying applicants in November, 2014 about acceptance of proposals for the April, 2015 symposium.

 

To submit a proposal for the symposium, please send the following items in a Word file e-mail attachment to William Cox, Senior Symposia Editor of the Michigan State Law Review, with the subject line “spring 2015 symposium.”  His e-mail address is: cox.will05@gmail.com

 

An abstract summarizing your article. 

  1. two-page excerpt from your article.
  2. An estimate of the anticipated final length of your article.  Final papers should be equivalent in length to 20-60 typeset pages.
  3. A copy of your CV.
  4. An indication of whether your presentation would differ significantly from your article – such as whether the presentation would address only one particular section of a multi-section paper.

 

We look forward to receiving your submissions!

 

Questions can be directed to:


Bruce Ching
, Assistant Clinical Professor, 
Michigan State University College of Law, 
chingbru@law.msu.edu

April 22, 2014 | Permalink | Comments (0)

Oklahoma court stays executions pending challenge to state's secrecy of source of execution drugs

The New York Times reports that the Oklahoma Supreme Court has delayed the executions of two inmates challenging the state's law protecting the identity of its source of lethal injection drugs. The inmates' attorney said they were "relieved" that the court has granted them the opportunity "to fully adjudicate the serious constitutional issues about the extreme secrecy surrounding [the state's] lethal injection procedures," while the state's attorney general called the court's decision "a constitutional crisis for our state."

The Times reports:

0,,15858458_303,00The case for a delay had seemed airtight to many legal experts. Last month, a state district court declared that a 2011 supplier-secrecy law, which officials said they needed to coax companies to supply scarce execution drugs, was unconstitutional. In effect, the court agreed that the condemned have a right to know how they will be put to death and to question, at least, whether the untested drug combination the state says it will use, from sources it refuses to reveal, could amount to cruel and unusual punishment.

 

The case is part of a growing legal battlenationally over secrecy in methods of execution, as traditional drugs have become scarce and states have engaged in covert scrambles to find new drug combinations and manufacturers. Oklahoma officials say they must offer secrecy because potential manufacturers fear reprisals for involvement with the death penalty.

 

The decision overturning Oklahoma’s supplier-secrecy law, made March 26 by Judge Patricia Parrish, is now under appeal. But in the meantime, Judge Parrish said, it was up to the state’s Court of Criminal Appeals to issue a stay of execution while the issue plays out.

 

The defendants applied to that court, but it asserted that under its governing statute, it had no jurisdiction because the condemned men had no pending case before their court, such as an appeal of their convictions or sentences.

 

So the lawyers appealed to the Oklahoma Supreme Court. Last Thursday, in the latest of several increasingly pointed go-rounds, the Supreme Court said that the Oklahoma Constitution gave it the authority to decide matters of court jurisdiction and that the Court of Criminal Appeals was misreading its own statute and should handle the request for an emergency stay.

 

On Friday, the criminal court responded with the bureaucratic equivalent of “mind your own business,” saying the Oklahoma Supreme Court does not have the power “to manufacture jurisdiction” in the criminal court “by merely transferring it here.”

Because sources for execution drugs have dried up, states have had to turn to compounding pharmacies subject to less government regulation for substitute drug cocktails. However, due to staunch opposition to the death penalty (and for fear that there will be nowhere else to turn for their fix), states have taken steps to ensure that these sources remain anonymous.

In an editorial earlier this year, The Times called such secrecy "cowardly" and condemned the continued use of the death penalty as "barbaric, racist and arbitrary in its application."

CRL&P related posts:

April 22, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Monday, April 21, 2014

"Scrutinizing Federal Electoral Qualifications"

The title of this post comes from this recent article by Professor Derek T. Muller, the abstract of which states:

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.

This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and scraps of judicial precedents in litigated cases. It concludes that states have no role in evaluating the qualifications of congressional candidates — the matter is reserved to the people, and to Congress. It then concludes that while states do have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power toelection officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns.

April 21, 2014 in Election Law | Permalink | Comments (0)

Saturday, April 19, 2014

"The First Amendment Guide to the Second Amendment"

The title of this post comes from this recent article by Professor David Kopel, the abstract of which states:

As described in Part I of this article, the Supreme Court has strongly indicated that First Amendment tools should be employed to help resolve Second Amendment issues. Before District of Columbia v. Heller, several Supreme Court cases suggested that the First and Second Amendments should be interpreted in the same manner. Heller and McDonald v. City of Chicago applied this approach, using First Amendment analogies to resolve many SecondAmendment questions.

Part II of this Article details how influential lower court decisions have followed (or misapplied) the Supreme Court’s teaching. Of course, precise First Amendment rules cannot necessarily be applied verbatim to the SecondAmendment. Part III outlines some general First Amendment principles that are also valid for the SecondAmendment. Finally, Part IV looks at how several First Amendment doctrines can be used in Second Amendmentcases, showing that some, but not all, First Amendment doctrines can readily fit into Second Amendmentjurisprudence.

April 19, 2014 in First Amendment, Gun Policy | Permalink | Comments (0)

Thursday, April 17, 2014

"We the People: Each and Every One"

The title of this post comes from this intriguing essay by Professor Randy Barnett, the abstract of which states:

In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about "popular sovereignty," "popular consent," "higher law," and "higher-lawmaking." In this essay, I examine these claims and find them to be both highly under-theorized and deeply problematic. Ackerman’s own presentation of what he considers to be an informal process of constitutional amendment illustrates the importance of formality in protecting the rights retained by the people. And he assumes a collective conception of popular sovereignty without considering the serious normative problems raised by majority and supermajority rule. Rule by a majority or supermajority is not the answer to the problem of constitutional legitimacy; it is the problem that requires a normative solution. As an alternative to collective or majoritarian conceptions of popular sovereignty, I identify an individualist conception that yields fundamentally different conclusions about the purpose of a written constitution, including the importance of written amendments in safeguarding the rights retained by a sovereign people, each and every one. Finally, in a Postscript I respond to Professor Ackerman’s reply to this essay.

(h/t Volokh Conspiracy)

April 17, 2014 | Permalink | Comments (0)

Tuesday, April 15, 2014

"Ohio Settles Federal Lawsuit, Will Cut Youth Isolation In State Prisons"

The Crime Report notes that Ohio will limit the time juvenile prisoners spend in isolation. It reports:
 
Drc_logo_smallThe U.S. Justice Department and Ohio officials have reached an agreement that will reduce the amount of time spent in isolation by young people in state juvenile correctional facilities, reports the Sandusky Register. Last month, federal officials filed a lawsuit asserting that youths are being held in seclusion for significant periods of time at four locations. “Numerous national studies have established that seclusion of youth with mental health disorders even for short periods of time can severely harm youth,” said the lawsuit. One youth was in seclusion for 19 days, and another for 21 days.
 
The suit asked a court to end the practice of putting youths in seclusion for long periods of time and to provide better mental health treatment. Erie County Juvenile Court Judge Robert DeLamatre said the number of youth in state juvenile correctional facilities had declined dramatically, from about 2,300 in 2001 to 500 today. Ongoing litigation over the state system probably made some judges more reluctant to send youth into the state system, he said. “Certainly the lawsuit brought a spotlight on conditions, and things in the department that may be a little invisible to [judges.] We don’t know on a day to day business how that youth is being treated,” he said.

April 15, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

"Presidential Constitutionalism and Civil Rights"

The title of this post comes from this paper by Professor Joseph Landau, the abstract of which states:

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting therights of lesbian, gay, bisexual, and transgender (LGBT) persons — most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy fits within a principled commitment to LGBT equality that includes supporting and signing legislation, pursuing regulatory initiatives, filing complaints and other court papers, making formal and informal choices in law enforcement, and using the bully pulpit to sway public opinion. The President’s nondefense of DOMA not only derives normative force from his larger vision regarding substantive equality and individual rights, but it also demonstrates how certain features of the presidency — including accountability and expertise — can be instrumental in promoting equality-based claims. In this way, presidential constitutionalism can engage coordinate institutions — including the Supreme Court — in the development of constitutional law.

April 15, 2014 | Permalink | Comments (0)

Friday, April 11, 2014

"Analyzing the SDNY's Amended 'Related Case' Rule: The Process for Challenging Nonrandom Case Assignment Remains Inadequate"

The title of this post comes from Professor Katherine MacFarlane's latest contribution to the stop-and-frisk debate, the abstract of which states:

Cartman-Cop1On October 31, 2013, the Second Circuit relied on a little-known Division of Business Rule to remove a well-respected and long-serving jurist from two high-profile stop-and-frisk cases. This highly unusual and unexpected move has stirred up an uproar of public support for the judge. But the Southern District of New York’s Division of Business Rule 13, the catalyst for a series of unprecedented procedural twists and turns, has been left unexamined. This essay refocuses the discussion on the overlooked rule at issue in Judge Scheindlin’s removal. First, it explains the consequences of Rule 13’s Division of Business label. Unlike local rules of civil procedure, Rule 13 is not subject to review by the Second Circuit, nor is it open to public comment. Creation and enforcement of a district court’s division of business rules are delegated to the court itself; unsurprisingly, decisions made pursuant to such rules are largely unreviewable. Next, this essay explains that precisely because it was a division of business rule, Rule 13 permitted case assignment decisions that might have raised red flags had they occurred pursuant to a local rule of civil procedure. This essay further argues that Rule 13 was only nominally a rule about relatedness. Instead, it functioned as a mechanism through which judges could pull certain cases onto their docket based on the cases’ subject matter. Rule 13 is the reason so many high-profile stop-and-frisk cases were sent to Judge Scheindlin, as opposed to being divvied up at random amongst all S.D.N.Y. judges. The essay also tracks how the stop-and-frisk cases were assigned, their odd procedural history on appeal, and recent hints of settlement. 

On December 18, 2013, the S.D.N.Y adopted amendments to Division of Business Rule 13, seemingly in reaction to the circumstances that caused Judge Scheindlin’s removal. This essay ends with an analysis of the amendments, concluding that they do not do enough to explain why a judge decides to deem a case related to an earlier-filed matter. The amendments also do not create meaningful motion practice through which parties can challenge a relatedness decision. Rather, the district’s case assignment procedures remain shrouded in secrecy, and, most disturbingly, are still easy to manipulate. If a judge wants to overcome random case assignment and engage in subject matter-specific case shopping, the S.D.N.Y.’s Division of Business rules will not stop it.

CRL&P related posts:

April 11, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

CRL&P Daily Reads: Apr. 11, 2014

Obama expected to use today's civil rights speech at the National Action Network to address voting rights. He should unequivocally state that the right to vote is political speech under the First Amendment.

UnknownJudge rules California's use of pepper spray on mentally ill prisoners violates their constitutional rights.

Celebrating the 50th Anniversary of the Civil Rights Act; and, LBJ gets lots of love. Others wonder whether SCOTUS's recent decisions signal danger for the Civil rights Act.

Federal judge rejects man's civil rights claim alleging that police cited him on suspicion of violating San Diego's anti-nudity ordinance because he was gay.

Teacher fired after making racist comments on Facebook claims his termination violated the First Amendment. What will the district court in the Fifth Circuit do with this Fourth Circuit decision?

April 11, 2014 | Permalink | Comments (1)

Oregon judge holds flashing headlights to alert other drivers of law enforcement is protected under First Amendment

The AP reports that an Oregon judge has ruled that the First Amendment protects drivers who flash their headlights to alert other drivers of the presence law enforcement as free speech. According to the judge,  "The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct." 

Speed-trapAs the article explains:

Hauling a truckload of logs to a Southern Oregon mill last fall, Chris Hill noticed a sheriff's deputy behind him and flashed his lights to warn a UPS driver coming the other way.

 

The deputy pulled over Hill on U.S. Highway 140 in White City and handed him a $260 ticket for improperly using his headlights, saying another deputy had seen the flashing lights from behind the UPS truck and alerted him to stop the log truck because of the signaling.

 

Outraged, Hill decided to fight the ticket, and on Wednesday, a Jackson County Justice Court judge dismissed the citation, finding that motorists flashing their headlights amounts to speech protected by the Oregon Constitution.

 

Judge Joseph Carter determined the law covering the use of high beams was valid, but was unconstitutional as it was applied by the deputy.

First Amendment protection of such conduct seems entirely reasonable to me. SCOTUS has routinely extended speech protection to generalized expressions, even when the reasoning for such expressions is not known. For example, it has protected signatures on referendum petitions, the wearing of black armbands in protest of the Vietnam War, and political yard signs. The Fourth Circuit recently even granted speech protection to support for a political candidate's campaign on Facebook by clicking the "Like" icon. Flashing one's headlights at another driver (for whatever reason) seems no less worthy of protection. 

The most compelling detail in this story is that the driver who originally received the ticket represented himself.  

As the article notes, Mr. Hill is an experienced driver who decided to fight the citation to protect himself against an increase to his insurance rate. So, he researched the issue and decided the free speech argument was applicable to the conduct for which he was ticketed. And the judge agreed.

Nicely played, sir! Nicely played indeed.

April 11, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (2)