Sunday, November 16, 2014
This paper is the text of the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, which will be delivered in November and subsequently published in the West Virginia Law Review. The article explores the burgeoning doctrine of “compelled commercial speech,” with special emphasis on recent decisions of the United States Court of Appeals for District of Columbia Circuit, including American Meat Institute (“AMI”) v. Department of Agriculture, an en banc decision upholding the mandated labeling of meat products; National Association of Manufacturers (“NAM”) v. SEC, which struck down features of SEC mandated reports about the origins of conflict minerals; and R.J. Reynolds Tobacco Co. v. FDA, which invalidated FDA mandated graphic cigarette warnings.
Commercial speech doctrine was established in order to protect what Central Hudson called the “informational function” of commercial communications. The object of the doctrine was explicitly to protect the capacity of an audience to receive information rather than to safeguard the autonomy of a commercial speaker. The informational function implies a constitutional asymmetry between restrictions on commercial speech and compelled disclosures of commercial speech. The former impair the distribution of information; the latter enhance it. The tendency of many judges to adjudicate compelled commercial speech cases in light of decisions like West Virginia State Board of Education v. Barnette, which defend the autonomy of speakers within public discourse, is deeply misplaced. The article defends the proposition that First Amendment jurisprudence is plural, not unitary.
The Court embraced the plurality of First Amendment jurisprudence in Zauderer v. Office of Disciplinary Counsel, which holds that factual commercial speech can be compelled if it is “reasonably related” to an appropriate government purpose. First Amendment rights of commercial speakers in such circumstances are deemed to be “minimal.” The article discusses the relationship between the Zauderer test for compelled commercial speech and the Central Hudson test for restrictions on commercial speech, which is the object of much unfocused discussion in AMI.
Compelled commercial speech, like government speech, is an effort to affect the content of public opinion. Both compelled commercial speech and government speech raise questions about how a democratic government may constitutionally influence the shape of a public opinion to which it is in theory responsive. The article seeks to explain certain doctrinal restrictions on compelled commercial speech in light of constitutional concerns that arise when government seeks to affect the content of public opinion. It offers an analysis of why government efforts to inform public opinion through the required disclosure of facts is constitutionally distinct from government efforts to shape public opinion through the required disclosure of opinions. The article explores how compelled disclosures of opinion may constitutionally be distinguished from compelled disclosures of fact, a distinction that lies at the heart of decisions like NAM and R.J. Reynolds. The article also discusses the kinds of state interests that may justify compelled commercial speech, which is the subject of great dispute in AMI.
Friday, November 14, 2014
The Obama Administration's contraceptive mandate implicates issues of complicity that run through many aspects of civil society, whether it is the police officer told to protect an abortion clinic or the tax exemption granted even to misogynist, homophobic, anti-semitic and racist religious groups such as the Westboro Baptist Church. How should the contraceptive mandate be framed, as a public health measure or as a turf dispute over the public space?
Thursday, November 13, 2014
The title of this post comes from this paper by Professor Amit K. Chhabra, the abstract of which states:
The April 2013 Boston Marathon attacks, together with Edward Snowden’s June 2013 release of documents revealing expansive U.S. governmental spying practices targeting U.S. citizens, remind us that terror and governmental surveillance lurk in our midst and at times appear inseparable. Small-scale strikes at the American heartland have occurred since the founding of our republic. In response, the Constitution sets forth a treason doctrine to address domestic threats where the underlying acts are construed as "levy[ing] [w]ar" against the United States or in "adhering to [its] enemies, giving them [a]id and [c]omfort." For better or worse, a fear of abuse allowed the doctrine to atrophy though repeated attempts have aimed to better equip the government in its ability to uncover subversion. In the wake of protests against the war in Vietnam and perceived leftist influence, for example, President Richard Nixon patronized domestic monitoring and surveillance. Congress formally authorized these activities in the Foreign Intelligence Surveillance Act of 1978 ("FISA") legislation. After the September 11, 2001 World Trade Center and Pentagon attacks ("9/11"), it further strengthened the Government’s surveillance tools by enacting the USA PATRIOT Act and issuing a joint resolution – the Authorization of Use of Military Force – ostensibly to legitimize the President’s planned use of military force at home and abroad in the so-called War on Terror.
Still, legislation in this regard has traditionally included a carve-out for the free exercise of civil liberties. In this vein – and in light of the PATRIOT Act and AUMF targeting threats to U.S. interests "both domestically and abroad" – we might expect our surveillance apparatus to be uniform and not dependent upon suspect categories of discrimination as alienage status. By example, Americans after the Boston Marathon attack did not first ask whether the perpetrators were citizens or aliens. Rather, they instinctively asked whether global terror was the real culprit behind the two known Chechen perpetrators, the Tsarnaev brothers. Only after it was determined that international terror organizations likely did not play a role, did attention then center on whether they were citizens, permanent residents, or alien non-residents. The outcome would determine whether the Federal Bureau of Investigation ("FBI") or National Security Agency ("NSA") could have more aggressively monitored – and potentially stopped them – even in the absence of a clear nexus with international terrorism. This is because FISA, as amended by the PATRIOT Act, prescribes an exemption to governmental investigations of citizens and permanent residents acting pursuant to the First Amendment’s protections for free expression; there is no comparable exclusion for aliens exercising such rights. Specifically, the FBI may apply for an investigation directed toward "obtain[ing] foreign intelligence information not concerning a U.S. person or protect[ing] against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution (sic.)." In relying on a limited definition of "U.S. person" including only a citizen or lawful permanent resident, FISA thus draws an alienage-based distinction with regard to the Foreign Intelligence Surveillance Court ("FISC")’s substantive ability to authorize monitoring. On the one hand, U.S. citizens and permanent residents ("U.S. Persons") are protected where their actions fall exclusively under the First Amendment’s guarantees of freedom of speech and press; to lose protection, their conduct must evidence completed, current or imminent criminality. Non-citizen, non-permanent residents ("Aliens") ostensibly do not receive these protections.
The plight of the Alien in the context of governmental surveillance is thus particularly fragile and leads to several lines of inquiry: are Aliens and U.S. Persons equally entitled to constitutional safeguards, in particular to due process and protections against unreasonable searches and seizures? Are First Amendment rights properly limited to U.S. Persons, or are they essential to an Alien’s liberty? Should Aliens expect such rights where American citizens themselves are confronted with imminent acts of terror in their own homeland? Does this answer change if the danger is not perceived as imminent? In the absence of a FISA amendment that eliminates separate monitoring standards for U.S. Persons and Aliens, cannot a Public Monitoring Defender at least minimize the potential for prosecutorial and judicial error by attending FISC proceedings on behalf of suspected targets? The Article concludes that such procedural safeguards are more effective at retaining America’s reputation as a beacon of liberty. Additionally, we should learn from our history of depriving civil liberties to blacks and Japanese-Americans on vague national security grounds; we should thus apply monitoring orders aggressively but equally to Aliens without succumbing to the easy temptation of depriving a vulnerable group of basic civil protections.
Tuesday, November 11, 2014
"Tinkering with Alito’s Code to Morse’s Limits: Why Alito’s Concurrence is Crucial to Preserving Tinker and Students’ Right to Free Speech"
The title of this post comes from this paper arguing that student free speech rights under the First Amendment have been receiving less protection than the standards articulated in Tinker v. Des Moines Independent School District. Here's the abstract:
The 2007 Supreme Court decision in Morse v. Frederick threatens the protection of student free speech that was articulated by the Court almost forty years earlier in Tinker v. Des Moines Independent Community School District, the decision in which the Court famously expressed that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
In Tinker, the Court applied the substantial disruption standard, essentially that school officials cannot restrict student speech because school officials disagree with it, but rather, that school officials can restrict content-based student speech only when it could be reasonably forecast that the speech would cause a substantial disruption to the school.
In Morse, the Court upheld the actions of a school principal in demanding students at a school event to take down a banner that read “BONG HiTS 4 JESUS,” and in suspending a student who refused. The Court ruled in favor of the school principal but not by applying Tinker’s substantial disruption standard. Rather, the Court found that school officials may restrict student speech that can reasonably be understood as promoting illegal drug use because protecting students from the dangers of illegal drug use is an important interest.
Although the opinion of the Court applies directly only to student speech encouraging illegal drug use, some lower courts are using the reasoning in Morse to analogize student speech encouraging illegal drug use to other areas of speech, thereby restricting speech that school officials believe students need to be protected from hearing. Thus, speech is restricted even when it would not be reasonable to think that it would cause a substantial disruption. The result is that speech is restricted essentially because school officials disagree with it, the very thing that the Court in Tinker tried to protect students from.
Justice Alito, joined by Justice Kennedy, wrote a concurring opinion in Morse precisely because of the concern that Morse would be read more broadly than applying only to student speech encouraging illegal drug use. This Note sets forth why courts should read Alito’s concurrence as controlling the limits to Morse, as well as other reasons why Morse should be read narrowly.
Friday, November 7, 2014
The Atlantic's Matt Ford explains that the 6th Cir.'s recent decision upholding same-sex marraige bans in Kentucky, Michigan, Ohio, and Tennessee will give SCOTUS another opportunity to consider the constitutionality of such bans. Because this decision created a split between circuits, the likelihood that we will hear arguments on the issue before the nation's highest court is considerable.
Federal judge says enough problems throughout criminal justice system to warrant reconsideration of death penalty
The title of this post comes from this recent paper by Professor Adam Lamparello, the abstract of which states:
Welcome: We’re Glad Georgia is On Your Mind.
Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.
Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled. In 1986, Georgia became the first state to ban executions of the intellectually disabled. It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled.
Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed. Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed. The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.
Monday, November 3, 2014
The title of this post comes from this recent paper from Paul J. Jenkins arguing that criminal liability can be imposed for revenge porn so as not to violate the First Amendment.
For most of our history, only celebrities — presidents, movie stars, professional athletes, and the like — were at risk of having their everyday exploits and activities photographed and shown to the world. But that day is gone. Today, we all face the risk of being made into a celebrity due to the ubiquity of camera-equipped cell phones and the ease of uploading photographs or videos onto the Internet. But a particularly troubling aspect of this phenomenon goes by the name of "revenge porn" — that is, the Internet posting of photographs of naked former wives and girlfriends, sometimes in intimate positions or activities. Revenge porn is an example of malicious conduct that injures the welfare of someone who mistakenly trusted an intimate partner. Tort law traditionally has allowed parties to recover damages for such violations of privacy, and criminal law also can prohibit such conduct, but there are several First Amendment defenses that the responsible parties can assert to fend off liability. This article argues that allowing a victim of revenge porn to recover damages for publication that breaches an implicit promise of confidentiality is faithful to tort and criminal law principles and will not punish or chill the legitimate expression of free speech.
Sunday, November 2, 2014
DOJ and the Albuquerque PD agreed Friday to a consent degree requiring an independent monitor of APD and sweeping reforms to its use-of-force policies. The LATimes's Cindy Carcamo reports:
The main points call for disbanding a problematic tactical investigative unit that became something of an unofficial SWAT team, revision of when and how force should be used and implementation of a civilian police oversight agency to conduct independent investigations of all citizen complaints concerning the police force.
The settlement calls for the Police Department to consider specialized responses that would minimize the need for use of force when officers are dealing with people in mental health crisis. The agreement also requires the department to establish a mental health response advisory committee, provide crisis intervention training to all officers and expand the number of detectives assigned to the crisis intervention unit.
The agreed-to terms were expected. In April, a DOJ report chided APD for "structural and systemic deficiencies -- including insufficient oversight, inadequate training, and ineffective policies -- contribut[ing] to the [pattern and practice of] use of unnecessary force." Shortly before the report's release, a helmet-cam recording surfaced that shows APD officers shooting a homeless man in the back. Protests of course ensued, as did clashes between citizens and APD officers.
In 2014, the constitutional law topic for the International Congress of Comparative Law was “Social and Economic Rights as Fundamental Rights.” This national report on the American system, which responds to the extensive questionnaire circulated to the national reporters, analyzes the protections afforded for the right to social security at the federal level and the right to education at the state level. We demonstrate that unlike a number of other countries, the right to social security is not afforded significant protection: the text of the U.S. Constitution does not expressly contain such a right; the Supreme Court has only recognized a right to non-discrimination against the indigent with respect to certain “fundamental rights” and a right to due process before the termination of government benefits; and constitutional and sub-constitutional norms of legitimate expectations, vested rights, and non-retroactivity do not prevent the state from immediately ending benefits under government programs. By contrast, at the state level, the right to education is recognized in all state constitutions and has given rise to an extensive jurisprudence on issues such as unequal funding of school districts, education for juveniles in detention and the homeless, and education for the children of undocumented workers.
Friday, October 31, 2014
“It is not uncommon for me to pull up at a light and have someone yell something offensive or put up their hands...”
As information regarding the federal government's surveillance program continues to surface (some of which is pretty seedy), there's growing demand for platforms where people can post messages and interact with others anonymously. However, perhaps puzzlingly, what actually constitutes anonymity isn't so easily defined. As WSJ Law Blog's Elizabeth Dwoskin recently wrote:
[T]here has never been more confusion about what the term means. Does it mean a company never knows the identity of its users, or is it enough for users to be anonymous to one another? Does it mean a company erases posts immediately after they appear or stores them internally?
Notwithstanding these questions, what's now clear is that some programs that claim complete secrecy aren't actually forthcoming about the software's limitations -- perhaps even intentionally misleading consumers as to the capability of achieving anonymity. For example, The Federal Trade Commission (FTC) recently settled with Snapchat after charging the company with "deciev[ing] consumers with promises about the disappearing nature of messages sent through the service."
Whisper is a similar service that purportedly doesn't collect data from users -- it even has labeled itself "the safest place on the Internet." But, as Dwoskin explains, The Guardian recently claimed it has been collecting information "on specific users whose posts it deemed potentially newsworthy" -- even on those "who had opted out of the app's location feature." Whisper, of course, disputes these allegations:
The company said its location data was very imprecise, and that it discarded the information after a short time. It pointed out that many users deliberately tag their locations, and that its tracking practices are transparent...
Privacy experts [however] point out that vague information can be used to identify individuals by combining it with other information and zeroing in on patterns of behavior.
Whisper doesn't appear to have caught the FTC's attention quite yet, but making amends with those who demand anonymity -- or, at least, honesty -- will be a long row to hoe. As Professor Deirdre Mulligan told Dwoskin, “They are actively exploiting their access to transactional data to engage in surveillance as a new line of business." But there are ways to limit the disclosure of identifying information -- for instance, writes Dwoskin, by "includ[ing] separating transaction and identity data, truncating numbers such as device IDs and IP addresses that serve as unique identifiers, and blurring location data, as Whisper claims to do."
Whisper can perhaps be forgiven for failing to provide complete anonymity (even though it suggested it had the capability to do just that) -- it would be foolish for one ever to feel free to act with impunity. No program can completely protect users from data inquires by law enforcement, and "[s]oftware bugs can compromise user privacy" as well. Some basic data collection is just completely unavoidable. But, as Dwoskin concludes: "The question is whether companies are making a good-faith effort to protect privacy."
Judge decides law enforcement may compel defendant to unlock cell phone with fingerprint, but not with passcode
As reported in this local article, the Virginia circuit court judge said that the Fifth Amendment's protection against self-incrimination extends to passcodes as communicative evidence. A fingerprint, on the other hand, is like a writing sample or DNA, neither of which receive Fifth Amendment protection.
States executing fewer inmates each year as result of SCOTUS rulings, limited access to lethal injections drugs
The Atlantic's Matt Ford observes that the number of executions in the U.S. each year has steadily decreased over the last decade and half or so. Even Texas -- with its perceived affinity for executions -- is killing convicts less and less. While it executed 40 people in 2000, this year it'll execute only 10. Ford explains:
Since executions peaked nationally in the late 1990s, multiple Supreme Court rulings have limited the death penalty's scope and application. The justices barred executions of the mentally disabled in Atkins v. Virginia in 2002, for example, and eliminated the death penalty for individual crimes other than first-degree murder in their 2008 decision in Kennedy v. Louisiana... This resulted in fewer cases with which the death penalty could be applied, while also imposing new legal hurdles before it could be carried out.
But for Texas, the greatest shift came in 2005. First, the Supreme Court ruled in Roper v. Simmons that executing defendants who were minors when they committed the crime violated the Eighth Amendment...At the same time, legislators gave Texas juries the option to sentence murder defendants to life without parole...
Nowadays states also have less access to lethal injection drugs. Foreign drug manufactures withdrew their drugs from the market, and there are few local suppliers to replace them.
A few related posts:
- SCOTUS stays Missouri execution pending resolution of ineffective counsel allegations
- Oklahoma's botched execution amounted to "medical experimentation" and torture, says inmate's family
- NYTimes editorial board continues its call to end death penalty
- Another botched execution adds to death penalty debate
- Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'
[h/t Doug Berman]
...for the 2012 shooting of Trayvon Martin, reports The Orlando Sentinel's Rene Stutzman. Although it's not yet clear how many witnesses will testify, DOJ has issued a subpoena for Zimmerman's former neighbor, Frank Taaffe, who supported Zimmerman when he faced second-degree murder charges for the killing. Now, however, Taaffe says he believes Zimmerman was motivated by race.
Not long ago, WaPo quoted "three law enforcement officials" as saying there's likely not enough evidence to charge Zimmerman.
It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.
...writes Ted Selker of one Election Day near-disaster at a polling place in Nevada. To demonstrate how "[s]mall design decisions have major consequence," Selker highlights how poll workers there hoped to power 20 voting machines through a single outlet. It didn't work, of course, and when the batteries went kaput shortly thereafter they opted for another outlet that also powered a microwave oven.
After witnessing comparable Election Day fiascoes elsewhere, Selker concluded that these problems are most often ones of design -- polling places are "often hard to navigate and not well thought out." As he explains in this Wired.com post, Selker thought that if polling places accommodated voters the way, say, a Starbucks catered to coffee drinkers then voters' experiences would improve. Voter turnout would increase thereby, a belief later confirmed by physical design methods expert Tom Burchard: "The challenge is to get people feeling like they took part in democracy, in the fulfillment of their citizenship rather than feeling like they just finished the SAT, hoping they filled in all the ovals right under pressure.” But Selker notes:
There’s a whole different organizational structure for voting [than for Starbucks], because...[of t]he autonomy of local governments in polling decisions... So it’s like trying to improve design decisions over tens of thousands of independent, small coffee shops across the country.
Nevertheless, Selker and his crew set out to create -- with the help of an Election Assistance Commission grant -- a software program that could help election officials design more efficient polling places. The result: an app called the Polling Place Support Tool that "works as a visual planner for polling places before election day and helps polling-place staff track glitches and bottlenecks during the big event." It also provides poll workers a forum for discussing improvements to polling place structure and design. As Selker explains:
The app is for voting staff and volunteers. It lets them view paths and bottlenecks as they position registration tables, voting booths, (and even electrical outlets) on a floor plan of their polling place. Then on election day, it helps keep a log by storing photos of potential problems, allowing staffers to post and annotate them with text, and pin them to the floor plan.
The goal is to help election officials learn how to design and administer polling places with the sophistication of top designers of high-throughput stores. Without losing the privacy, security, and integrity of the system, we need to think like the customer and anticipate any potential snafus in the physical space, staff training, digital tools, and the transitions between them.
The program is set to be tested by election officials in Maryland and L.A. county later this year.
"[W]hen you kick someone out of a business or a country or whatever just because that person is exercising their ability to think,...that’s an affront to civil rights.”
...claimed MIT Card Counting Team member/professional poker player, Andrew Bloch, in his defense of card counting. As WaPo's Annys Shin observes in this intriguing post, counting cards is legal but nonetheless will get one booted from a casino. She writes:
Stephen Martino, director of the Maryland State Lottery and Gaming Control Agency, told the Sun that card counting that is done “using intellectual capacity to keep track of cards is not prohibited by state law or regulation.” What would make it illegal is if the gambler has mechanical or electronic help. (Yes, there is an app for that.)
Many professional and amateur gamblers defend card counting, and it has been elevated to a righteous cause for some. Andrew Bloch, World Series of Poker veteran and former MIT Card Counting Team member, said at a conference last year that “our ability to think is what really makes us human, and it separates us from other animals, and when you kick someone out of a business or a country or whatever just because that person is exercising their ability to think, to me that’s an affront to civil rights.”
Not all his fellow gamblers feel that way. Often the folks who catch card counters for casinos are former card counters. Casinos supplement their know-how with hi-tech surveillance systems. Maryland Live alone, as my colleague Josh du Lac reported, has “license plate recognition systems, tracking software to follow certain people through the casino and 360-degree, high-definition cameras that record with so much clarity that surveillance operators can zoom in after the fact.” Card counters, righteous or not, don’t stand much of a chance. Just ask Ben Affleck, who was asked to leave the Hard Rock Hotel & Casino in Las Vegas for card counting. Affleck told Details magazine later, “I took some time to learn the game and became a decent blackjack player. And once I became decent, the casinos asked me not to play blackjack. I mean, the fact that being good at the game is against the rules at the casinos should tell you something about casinos.”
Thursday, October 30, 2014
...writes The LATimes's Abby Sewell. County DA Jackie Lacey commissioned GAINS Center for Behavioral Health and Justice Transformation to come up with a proposal for improving mental health care in the county's jails. While its work will continue into 2015, the center issued a report yesterday finding a need for more resources for training law enforcement personnel in best practices for dealing with people experiencing mental health crises. Reportedly, county law enforcement currently have few good options when finding help for them.
"It's often more time-efficient for law enforcement to book an individual into jail on a minor charge ... rather than spend many hours waiting in a psychiatric emergency department for the individual to be seen," the report said.
The report also recommended expanding an existing county program that places social workers in the courts to identify defendants who might be candidates for diversion, putting a pre-trial release program in place for such defendants, and placing more social workers in the jails.
The county also needs to improve data sharing between mental health professions and law enforcement, which of course raises a variety of difficult legal issues.
Improvement to mental health care is urgently needed as the state continues transferring nonviolent felons to local jails under a 2011 federal court order to reduce overcrowding in the state's prisons. Currently:
The percentage of inmates in county jails who are mentally ill has increased by 89% since 2011 and now stands at 17% of the male population and 24% of the female population...
But resources could become available soon. County commissioners recently promised $20 million for alternatives to prison for mentally ill offenders, and the county plans to establish crisis centers to help law enforcement handle encounters with the mentally ill. Relatedly, some of the $50 to $100 million in savings from the proposed reclassification of several non-violent felonies as misdemeanors under California Proposition 47 would be dedicated to mental health care and drug treatment.
WaPo editorial board calls on Maryland legislature to limit use of solitary confinement in state's prisons
WaPo's editorial board notes that 8% of state's prison population is held in solitary confinement, and that inmates are typically sent there for failing to follow rules. The board questions whether current policy is required to reduce the risk of violence, as some supporters say, and it doubts whether inmates commonly have cellmates. Instead, it recalls one mentally ill inmate who allegedly spent four years in solitary, and argues:
Weeks, months and years of solitary confinement can destroy people’s minds. Stories of healthy inmates leaving solitary with a mental illness are horrible but unsurprising. So are accounts of inmates who enter it with a mental illness and come out worse — if they don’t commit suicide, a particular problem in isolation programs.
Isolation can seem like an easy solution for dealing with a violent or antisocial inmate, but it can be expensive and counterproductive, deepening the psychosis that led to bad behavior. The internal report found that isolated prisoners in Maryland face “heightened risk for worsening physical and mental health outcomes.”
Sadly, the state's general assembly hasn't been any help so far:
[W]e published a letter from Susan Kerin of Interfaith Action for Human Rights noting that Maryland lawmakers recently scuttled a bill calling for an independent analysis of the state’s use of prisoner segregation. The bill merely asked for a report on living conditions and the frequency with which state facilities isolate prisoners. It sought recommendations on how to reduce the number of prisoners in isolation, how to improve conditions and how to manage juveniles and the mentally ill. All of these goals should be priorities for any state that claims to run a humane prison system.
AG Eric Holder said the Ferguson PD required "wholesale change" in order to fix the structural deficit revealed by the unrest following the killing of Michael Brown by Officer Darren Wilson, reports The NYTimes's Mitch Smith and Monica Davey. Holder's comments come as DOJ investigates the white officer's shooting of the black teenager as well as the PD's response to subsequent turmoil. And a grand jury currently is considering whether to indict Officer Wilson for the killing -- local law enforcement have been preparing for possible tumult when the decision is announced.
Some apparently suggested that Ferguson PD chief Thomas Jackson should be ousted from his post. But Jackson saved the city council the trouble by announcing his intention to resign. Another option is giving the St. Louis PD jurisdiction over the town.
...reports this Atlantic Journal-Constitution article. Inmates there allegedly have taken to eating toothpaste and toilet paper.
The local sheriff "categorically reject[s]" any misconduct.
"Removing Malice from Federal 'Malicious Prosecution': What Cognitive Science Can Teach Lawyers About Reform"
42 U.S.C. § 1983 (“§ 1983”) empowers individuals suffering civil rights abuses at the hands of state actors to seek recourse in federal court. The statute was enacted in response to southern states’ failure to control the Ku Klux Klan, and it has increasingly become a vehicle for federal reform of unconstitutional state and local government practices. Nationwide, state criminal justice systems cry out for such ex-post reform, as they continue to generate wrongful convictions at unacceptable rates with no notable preventative measures in place.
“Malicious prosecution” claims brought under § 1983 are a common mechanism for redressing state-driven wrongful convictions, but this article asserts that they are not meeting their full reform potential. A plurality of federal courts erroneously requires plaintiffs to prove malice in support of such claims. While, superficially, the requirement comports with the “malicious” prosecution nomenclature, the nomenclature itself is misleading. Federal malicious prosecution claims are based on the Fourth Amendment, the purpose of which is to hold state defendants accountable for objectively unreasonable acts – not intentional, or malicious, ones.
In abandoning the Fourth Amendment’s purpose, the offending courts have also ignored the real causes of wrongful convictions and, therefore, have failed to further true reform. Research shows that the vast majority of wrongful convictions are driven – not by malice – but by cognitive biases that cause inaccurate perceptions and objectively unreasonable decision-making. Although unintentional and often unconscious, cognitive biases may be ameliorated through education, exposure to divergent views, and reform of systemic factors that trigger and exacerbate bias. Reframing § 1983 relief for wrongful conviction as a question of objective unreasonableness rather than malice would tie liability more closely to: (1) non-malicious cognitive errors that frequently taint state actors’ decisions during criminal proceedings, and (2) states’ failure to implement cognitive error-neutralizing practices. This change to the legal standard, accompanied by close consideration of cognitive science, has the potential to enhance plaintiffs’ access to compensation and to require state reform of the true systemic causes of many wrongful convictions.
Wednesday, October 29, 2014
Police watchdog founder claims NYPD officers roughed him up, stripped searched him after he recorded encounter in which he asked for their badge numbers...
...reported The NY Daily News's Tina Moore earlier this week. Forty-four-year-old Jose LaSalle plans to sue NYC, the NYPD, and the officers involved for $500K for allegedly violating his civil rights.
The inmate is 35-year-old Mark Christesen. He was convicted for the 1998 murders of 36-year-old Susan Brouk and her two children near Vichy, a small central-Missouri town about two hours southeast of St. Louis. The AP reports:
The appeal to the Supreme Court raised several concerns about legal counsel Christeson has received over the years, including the failure of some of his attorneys to meet a 2005 deadline to file for an appeal hearing before a federal court. It is uncommon for someone to be executed without a federal court appeal hearing.
The high court denied a second appeal challenging the state's planned use of a made-to-order execution drug produced by an unidentified compounding pharmacy.
This Sacramento Bee op-ed argues that the $50 to $100 million saved under California's Proposition 47 by recategorizing several low-level felonies as misdemeanors will be reinvested in mental health care and drug treatment, which will reduce the risk of recidivism, thereby lessening the burden on the state's already overflowing prisons and jails.
- "Prop. 47: A simple step toward reducing mass incarceration"
- SCOTUS denies review of decision requiring California to monitor compliance with ADA by local jails
"A Lawyer Looks at Civil Disobedience: How Lewis F. Powell, Jr. Reframed the Civil Rights Revolution"
This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. Powell’s reasons for defending diversity are worth recovering today, not least because courts continue to misinterpret his landmark opinion in Regents v. Bakke, confusing the use of diversity in higher education with the compensatory goals of affirmative action, a project that Powell rejected.
Tuesday, October 28, 2014
Yup, as ACLU's PrivacySos notes, this recent Electronic Frontier Foundation analysis confirms that so-called "sneak and peeks" -- justified as a national security necessity -- more often than not are used to fight to the ridiculous war on drugs. Specifically, these warrants allow police to perform a search without first notifying the suspect.
This post at the Harvard Civil Rights-Civil Liberties Law Review blog argues that punishing victims of sex-trafficking for some crimes committed while they're being trafficked -- which they may have been forced to commit -- institutionalizes and prolongs their trauma. Because these crimes remain on their records, many sex-trafficking victims will have trouble finding employment, which in turn increases the likelihood that they'll be re-victimized.
Reason.com's Robby Soave notes this incredibly disturbing story out of Washington state, in which the local sheriff's department decided to deploy 24 officers and an armored vehicle to collect an $80K judgement from an elderly junkyard owner for violating local zoning ordinances. As Soave notes, one incredulous captain defended the decision: "People may not always understand why, but an armored vehicle is almost a necessity now."
I wonder if these lunatics have a support group.
Justice Brandeis forecasted that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.” In the law enforcement and government surveillance context, technological advances have made it possible to store an individual’s DNA in a national database, and have made it nearly impossible for that same individual to send an email, download a YouTube video, or transmit a text message without knowing that the government might be watching — without having the slightest degree of suspicion of criminal behavior. In any society that values basic civil liberties, such practices are intolerable — and unconstitutional. In Riley, the Court correctly held that, if privacy is to mean anything, it should protect individuals from being monitored without their consent, without a reason, and without a warrant. It is the beginning of principled change and enhanced protections for civil liberties in the digital age.
Monday, October 27, 2014
Professor Martha Minow, dean of Harvard Law School, wrote this op-ed last week in The Boston Globe urging a greater commitment to legal services for people with low-incomes. She writes in part:
Neglected in today’s headlines, blogs, and talk radio is a silent, shameful crisis that inflicts suffering and costs the nation money, legitimacy, and decency. Our justice system has become inaccessible to millions of poor people and so every day, we violate the “equal justice under law” motto engraved on the front of the grand United States Supreme Court. Americans who cannot afford legal help routinely forfeit basic rights as a result. Because the law does not enforce itself, veterans seeking benefits the nation has guaranteed, victims of domestic violence needing legal protection, and tenants and homeowners pursuing their rights since the financial disaster all need advisors and guides through the law and its agencies and courts.
Across the country, nonprofit organizations and private law firms offer civil legal aid to those with limited incomes by handling their legal cases. I serve as vice chair of the federal Legal Services Corporation, which also distributes grants to states based on their low-income populations. When this bipartisan federal effort started in 1974 with legislation signed by President Nixon, 12 percent of the population was qualified but today, due to soaring poverty levels, nearly 21 percent of Americans are eligible. Yet the federal contribution has dropped $35 million in the last 20 years.
The problem is not remote: low-income people denied their legal rights live around the corner from you...
...reports the AP. The law requires doctors at abortion clinics to have admitting privileges at nearby hospitals, even though hospitals aren't required to grant them such access. As result, the future of the state's three remaining abortion clinics is uncertain.
Relatedly, a state judge has upheld the state's law banning abortion-inducing drugs.
....Reuters reports. The lawsuit will allege that New Jersey's mandatory quarantine is overly broad and violates the constitutional right of due process.
New Jersey's mandatory quarantine for certain travelers from Ebola-stricken West Africa will likely face its first legal test this week, after a lawyer for a quarantined nurse said she would file a federal lawsuit within days.
Norman Siegel, a civil rights lawyer, said Kaci Hickox's isolation upon her return from West Africa raised "serious constitutional and civil liberties issues," given that she shows no Ebola symptoms and has not tested positive for the disease.
"We're not going to dispute that the government has, under certain circumstances, the right to issue a quarantine," said Siegel, who was on his way to visit Hickox in a New Jersey hospital. "The policy is overly broad when applied to her.”
The lawsuit would be the first to challenge the 21-day mandatory quarantine imposed by New Jersey for anyone arriving with a high risk of having contracted Ebola from Sierra Leone, Liberia and Guinea, where the epidemic has killed nearly 5,000 people.
The case could also affect similar policies announced by other states including New York and Illinois.
Nurse Hickox has since been released.
SCOTUS decision allowing Texas to implement new voter ID law in coming elections assuredly disenfranchises lifelong voters
The Guardian's Ed Pilkington explores the effect of Texas's severely restrictive voter ID law on the state's citizens. In particular, Pinlkington highlights the disenfranchisement of life-long Texan, Eric Kennie, a man who has never even left his hometown -- Austin, TX. Forty-five-year-old Kennie reportedly has voted consistently ever since he turned 18. But, as with an estimated 600,000 of his fellow Texans, SCOTUS's decision allowing the state to impose the new voter ID law -- notwithstanding the district court decision that the law unconstitutionally discriminates against minority voters -- assures his disenfranchisement in the coming elections.
As Pilkington explains, because he doesn't have any of the required ID cards, Kennie must get an election identification card (EIC), which, sadly, will not happen:
To get an EIC, Kennie needs to be able to show the Texas department of public safety (DPS) other forms of documentation that satisfy them as to his identity. He presented them with his old personal ID card – issued by the DPS itself and with his photo on it – but because it is more than 60 days expired (it ran out in 2000) they didn’t accept it. Next he showed them an electricity bill, and after that a cable TV bill, but on each occasion they said it didn’t cut muster and turned him away.
Each trip to the DPS office involved taking three buses, a journey that can stretch to a couple of hours. Then he had to stand in line, waiting for up to a further three hours to be seen, before finally making another two-hour schlep home.
In one of his trips to the DPS last year they told him he needed to get hold of a copy of his birth certificate as the only remaining way he could meet the requirements and get his EIC. That meant going on yet another three-bus trek to the official records office in a different part of town.
The cost of acquiring a birth certificate in Texas is $23, which may not sound much but it is to Kennie. He is poor, like many of the up to 600,000 Texans caught in the current voter ID trap.
But Kennie is a "scrapper," and his meager income makes the cost of obtaining a new birth certificate quite burdensome.
On a usual day he makes about $15 to $20 from recycling the cans and other scrap. On a good day – after a holiday like Valentine’s Day or Easter when people consume more – his earnings can rise to as much as $40 a day. He has no bank account or credit cards, and no savings – he only deals with cans and cash.
I asked him how much $23 means to him. His said what he does when he feels flush with money is decide to splurge on a special treat for himself and his friends. “I do chicken Tuesday at Popeyes.”
So what passes as a reckless binge for Eric Kennie – a splurge on about $10 worth of fried chicken – is less than half of what he spent getting himself a copy of his birth certificate.
The outcome was perhaps predictable by now: the birth certificate wasn’t up to scratch either. When he took it to the DPS (another three buses there, three buses back, another two hours waiting in line) they told him that the name on the birth certificate didn’t match the name on his voter registration card. The birth certificate has him down as Eric Caruthers – his mother’s maiden name – even though his parents were married at the time he was born.
What options remain available to Kennie? As Pilkington observes, what would be expected of Kennie in order to exercise his right to vote is tragically absurd:
In Eric Kennie’s case, there is no clear way out of the morass. He could go to court and ask for the name on his birth certificate to be changed to correct the error, but that would take hiring a lawyer for a fee that he could not afford.
Or he could swallow his pride and take up the identity given on his birth certificate – turning himself into Eric Caruthers. He doesn’t want to do that – he said it would make his deceased father “turn in his grave”. It would also be profoundly ironic: he would in effect be impersonating someone else in order to get around a law ostensibly designed to root out impersonation at the polls.
This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title VII embodies the fundamental principle, originally found in the Thirteenth Amendment to the U.S. Constitution, that individuals have the right to own and use their own labor free of discrimination, in order to have meaningful economic opportunity. This conclusion is supported by a historical analysis which ties together the Fair Employment Practices Commission (which served as the direct predecessor to Title VII); the work of the Civil Rights Section of Roosevelt's Justice Department; and the Thirteenth Amendment and Anti-Peonage Act jurisprudence to show the connection between Title VII and the principles underlying the Thirteenth Amendment. The "human rights approach" shows that international law also categorizes and interprets employment nondiscrimination provisions in this way. The article uses this analysis to explain why the U.S. Supreme Court's recent moves to categorize and interpret Title VII as a tort are incorrect. Finally, it suggests that, if tort analysis were to be imported into Title VII, the doctrine of duty could be used to argue that Title VII creates an affirmative duty for employers to provide a workplace where all employees have a right to meaningful economic opportunity.
Sunday, October 26, 2014
This recent post by Professor Jonathan Simon at The Berkeley Blog explains the societal and institutional importance of California's Proposition 47, which will appear on the ballot this November. Simon begins:
California Proposition 47...would change the legal classification of many “nonserious and nonviolent property and drug crimes” from felonies to misdemeanors (read the details on ballotpedia.org here.)
This simple change has important consequences. A crime classified as a felony may be punished with a sentence in state prison, while a crime that is classified as a misdemeanor may be punished only with probation or a sentence of one year or less in a county jail. If voters approve Proposition 47, Californians convicted of crimes that pose little or no risk of violence like forging a check or receiving stolen property if the amount involved is worth less than $950 dollars (the existing dollar amount was set in the 1970s), or simple possession of drugs, would no longer end up in state prisons.
Moreover, the law would allow prisoners currently under felony sentence for one of these crimes to be re-sentenced “unless court finds unreasonable public safety risk,” a change that could result in as many as 10,000 fewer prisoners in our dangerously overcrowded and degrading state prisons.
The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are. Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes. Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation.
Opponents, most of the state’s District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).
But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment.
Advancement Project co-director Penda Hair's article at MSNBC.com, which begins:
Voting is the cornerstone of democracy – at least, it should be. But American democracy shifted dramatically on June 25, 2013, when the Supreme Court’s Shelby County v. Holder decision gutted a landmark provision of the Voting Rights Act (VRA). A majority of justices struck down the coverage formula for the VRA’S Section 5, which had required federal pre-approval of new voting practices in mostly southern states, effectively halting its protections. The court acknowledged that “voting discrimination still exists,” and noted that Section 2 bans voting discrimination on the basis of race throughout the land.
This month, the power of Section 2 to combat such wrongs was put to the test in the U.S. Supreme Court, with cases seeking to stop voting restrictions under Section 2 in North Carolina and Wisconsin. The high court’s divergent decisions in these cases – recognizing the harm of unjust policies in one state, but failing to see the damage to voters in another – illustrate how post-Shelby voting rights are in a tensely precarious position.
The Arizona Republic, joined by local and national media outlets, is suing the state's DOC and AG alleging that their refusal to release the identities of the state's sources of lethal injection drugs violates the First Amendment. This current controversy comes just three months after the state's botched execution of James Wood, which lasted nearly two hours. The Republic's Michael Kiefer provides further background:
The issue surfaced in 2010, when the standard drug used in executions since the 1970s became unavailable. The Arizona Department of Corrections invoked a law guaranteeing the confidentiality of executioners' identities to conceal that it was illegally importing the drug from Great Britain.
The Republic exposed the practice, and the U.S. Justice Department subsequently forbade the use of the imported drugs for executions in Arizona and other states.
Since then, the department has switched to other drugs and routinely tried, sometimes successfully, to conceal the sources.
In September, the First Amendment Coalition, an association of media organizations, joined a lawsuit filed by [James] Wood's lawyers requesting the same information as well as demanding the right to witness all stages of the execution as mandated by federal law.
Saturday, October 25, 2014
...according to this local report. The incident in the driveway of the the teenager's home prompted his family to file a civil rights suit against the local Georgia PD for alleged racial profiling, excessive force and false arrest. They're asking for $12.5 million in damages.
LAPD officer's "horrific" attack left man "look[ing] like a rag doll" as he was carried to nearby squad car
Twenty-two-year-old Clinton Alford was riding his bicycle when he heard over his shoulder the command to stop. He says he didn't know who it was, so he ran. Two police officers chased him, and, after a short distance, he surrendered voluntarily, lying down and placing his hands behind his back. An officer reportedly then placed him in handcuffs, which appeared to be the end of the routine encounter. But moments later a second squad car arrived, and Alford soon began "praying...they wouldn't kill me." A nearby security camera captured everything, according to The LATimes's Joel Rubin:
[A] uniformed officer, who the sources described as “heavyset” or “very large,” rushed from the driver’s side, according to sources. The officer moved quickly over to Alford, who was still held on the ground by the other officers, and immediately stomped or kicked...
The officer then dropped to the ground and delivered a series of strikes with his elbows to the back of Alford’s head and upper body, sources said. Alford’s head can be seen on the video hitting the pavement from the force of the strikes, two sources recounted. Afterward, the officer leaned his knee into the small of Alford’s back and, for a prolonged period, rocked or bounced with his body weight on Alford’s back...
Throughout much of the altercation, two officers restrained Alford but eventually they moved away.
When it was over, Alford’s body was limp and motionless, according to sources who viewed the video. It took several officers to carry him to a patrol car, they said.
Police officials confirmed that the video shows an officer, believed to be ten-year LAPD veteran Officer Richard Garcia, "delivering a powerful kick to the suspect's head." They added that Alford hadn't been resisting arrest, according to Rubin. Also:
The sources who reviewed the video of the incident also raised concerns about the officers’ actions following the arrest. Several minutes after Alford is put in the patrol car, they appear to notice the security camera on the building wall. The officer who kicked Alford knocked on the door of the building, which houses a small garment factory, until someone opened the door and he disappeared inside.
What happened after the officer entered the building isn't yet known, but the investigation continues. The officer's attorney disputes claims that his client used excessive force against a defenseless and compliant arrestee.
Alford was taken to a nearby hospital for treatment. He was later charged with drug possession and resisting arrest, but he claims he's not guilty.
Lehigh resolves civil rights investigation into university's handling of incidents of discrimination with voluntary agreement
Friday, October 24, 2014
...this Saturday, Oct. 25 @ 9 a.m. at East L.A. College. The event is free and open to the public, and among the planned topics for discussion is the need for civilian oversight of L.A. County jails. As ACLU's Mark-Anthony Johnson explains, the new year likely will bring a fresh opportunity to institute this needed change. Register here.
Arizona asks federal judge to dismiss ACLU claim that state's revenge porn law violates First Amendment
The Arizona Capitol Times's Howard Fischer reports:
Assistant Attorney General David Weinzweig is arguing there is no legal basis for the lawsuit. He said the state is looking at a series of defenses, including that no one has been charged with breaking the law or is even being threatened.
Weinzweig also told U.S. District Court Judge Susan Bolton there are other legal problems with the claim filed last month by the American Civil Liberties Union on behalf of bookstores. That includes his contention that the lawsuit is about a purely political issue and seeks to involve the courts “in areas of government reserved to the legislative and executive branches.”
But ACLU attorney Lee Rowland said it’s not necessary for a bookstore owner, photographer, librarian or newspaper publisher to get arrested to challenge the law. And she brushed aside Weinzweig’s contention that the question is strictly political and beyond the reach of the courts.
“This is a First Amendment case,” Rowland said. “This is fundamentally about constitutional rights and whether or not our plaintiffs’ rights are being violated by this broad law. That is emphatically a question for the courts.”
The law approved earlier this year makes it a felony to “intentionally disclose, display, distribute, publish, advertise or offer” a photo, video, film or digital recording of someone else who is naked “if the person knows or should have known that the depicted person has not consented to the disclosure.” The legislation covers not just images of nudity but also anyone engaged in any sex act.
Offenders could end up in prison for up to 2 1/2 years — or 3 3/4 years if the person is recognizable.
The National Association of Criminal Defense Lawyers announced this week that it’s getting a “major grant” from Koch Industries Inc. to support the group’s indigent defense training programs and to study how states can do a better job of delivering legal services to the poor.
“We are supportive of the NACDL’s efforts to make the Sixth Amendment’s guarantee of an individual’s right to counsel a reality for all Americans, especially those who are the most disadvantaged in our society,” Charles G. Koch, the chairman and CEO of Koch Industries, said in a statement about the grant, which is believed to be in the six figures.
The grant comes at a time when state spending on legal defense for the poor has slumped, as Law Blog noted earlier.
The Washington Times reports on the outcry from conservative religious leaders over Houston mayor Annise Parker's issuance of subpoenas for the communications of five Houston pastors. The subpoenas come as part of litigation stemming from the disqualification of roughly 70 percent of the signatures on petitions to repeal the city ordinance requiring local businesses to permit transgender persons to use the bathrooms of the gender with which they identify. Mayor Parker claims that the subpoenas are necessary for the discovery of documents pertinent to the controversy, while opponents argue that the subpoenas themselves violate the pastors' First Amendment rights.
Parker already has amended the subpoenas so that the pastors will not be required to turn over copies of their sermons.