Sunday, October 5, 2014
Maricopia County's (Ariz.) jails have been under federal oversight since 2008 because they're terrible. County sheriff Joe Arpaio seems to think the feds have no business telling him how poorly he can treat prisoners inside his county's jails - that just wouldn't be right. But a federal judge disagreed and ordered the county to get their jails in order. As Eric Balaban of the ACLU National Prison Project writes at the Blog of Rights:
[O]ver five years ago, federal judge Neil Wake placed the jail under federal oversight and ordered the county and Sheriff Joe to fix their dangerously substandard system. But that order fell on deaf ears, as men, women, and children at Sheriff Joe’s jail have continued to suffer and die. A female detainee who reported a history of cardiac problems and who said she was suffering chest pain was not examined by a physician despite her complaints. Instead of receiving legally mandated care, she died hours later. Two other prisoners died of complications from inadequate treatment for alcohol withdrawal.
Last year, the county tried to get out from under the federal oversight Judge Wake ordered in 2008, claiming that it had done what is necessary to care for detainees’ mental and physical health... [T]his week Judge Wake issued a scathing 66-page decision finding that the jails continue to provide detainees with inadequate medical and mental health care. He ordered the jail to remain under federal oversight until it can meet constitutional standards.
NYPD is investigating renowned civil rights attorney accused of raping a National Action Network official following Rev. Al Sharpton's 60th birthday party
Sanford Rubenstein had been representing the family of Eric Garner, who an NYPD officer had chocked to death earlier this summer. Now that Rubenstein's been accused of the third-degree rape of a high ranking official in Sharpton's group who had passed out in his hotel room after a party, which medical staff reported to the police when she arrived at the hospital the next day complaining of continuous bleeding, his attention likely will be diverted elsewhere.
Saturday, October 4, 2014
The Miami Herald has this excellent article by David Ovalle about lingering questions in the death of an inmate suffering from a variety of mental health and medical conditions. Ovalle writes:
[Karen] Isaacs earlier this month was found slumped over dead inside the van — operated by Tennessee-based Prisoner Transportation Services of America through a contract with the Charlotte County Sheriff’s Office — during a stop at a West Miami-Dade Taco Bell restaurant.
Her case offers a window into the little-publicized world of private inmate-transport companies. And it has now spurred a law enforcement investigation into whether the transport officers provided her with proper care and attention during the grueling two-day road trip.
According to sources with knowledge of the investigation, Isaacs is believed to have acted strangely throughout the trip — apparently suffering hallucinations — while drinking little water and refusing a meal during a stop in Orlando.
And when the two transport officers finally saw that she was unresponsive in the Taco Bell parking lot, they first called their superiors in Tennessee. Only after unsuccessfully trying to revive her did the officers dial 911, sources said.
The cause of death remains unknown. An autopsy of Isaacs has so far proved inconclusive while the Miami-Dade Medical Examiner’s Office awaits the results of more tests.
The Connecticut woman says the treatment she received by the city during her pregnacy violated her civil rights, according to this local article:
Scates alleges the city unfairly disciplined her last year for taking pregnancy-related sick days and then forced her to take an unpaid maternity leave despite providing unlimited paid sick leave for non-pregnancy related physical disabilities.
Scates alleges she was still capable of working when she was placed on leave.
Baltimore's city council and mayor hope the DOJ will review a slue of police brutality claims that continue to cost the city millions of dollars. As Baltimore's local CBS affiliate reports:
Commissioner [Anthony] Batts’ request for a full review by the Department of Justice comes after multiple videos of police brutality surfaced –including one from June, showing an officer brutally beating a man at a bus stop.
The [Baltimore] Sun’s investigations also revealed more than 100 people have won settlements that along with legal fees cost city taxpayers $11.5 million over the years.
“We know there are a few of us who are not in alignment with the philosophy I have set forth for this police agency,” Batts said.
Mayor Rawlings-Bblake says it’s clear the changes are necessary and that a full review by the federal governments into their policies and procedures will help put the past behind them and benefit the entire city.
The Baltimore Sun's full report on the prevalence of claims of police brutatily there can be found here.
"What if the fiancee sues the police officer for interfering with the investigation of the crime of which she was a victim?"
When the Obama Administration sent in a team to investigate civil rights violations in the 2012 shooting death of Trayvon Martin, some of us expressed doubt over the basis for such a charge as well as the timing of the federal move into the case. Indeed, I washighly skeptical of how the case was charged and prosecuted. Now the Washington Post is reporting that, after two years of investigation, Justice officials do not believe that they have sufficient evidence to bring federal charges.
Friday, October 3, 2014
This story out of Georgia is another example of the war on drugs sucking. From Opposing Views:
Dwayne Perry was reportedly woken up on Wednesday morning by the sound of a police helicopter above his home. Officers were waiting for Perry at his door to search his home for drugs after the helicopter spotted what they believed to be marijuana plants growing in his backyard.
“I was scared actually, at first, because I didn't know what was happening,” said Perry. “They were strapped to the gills.”
The helicopter, as it turns out, was part of the Governor’s Task Force for drug suppression, and its purpose was to search areas for domestic cannabis plants. What the helicopter thought was marijuana, however, turned out to be okra.
The voter registration drive in Ferguson is picking up and paying off. More than 3,000 Ferguson residents have registered to vote. Ferguson's total population only amounts to about 21,000 people, the majority of which are black and tend to vote less, resulting in an awfully white city council. But the killing of Michael Brown could change this. As MSNBC's Zachary Roth observes:
Two out of three Ferguson residents are black, but five of the city’s six city council members, as well as its mayor, are white—a disparity that has received widespread attention since the unrest began.
Data suggests turnout among Ferguson’s black residents is far lower than among whites. There are several reasons for that: Blacks tend to be newer arrivals in Ferguson, and more transient, than whites. And Ferguson’s elections are held in April, which almost always correlates with lower black turnout.
Less than two weeks after Brown’s death, Antonio French, a local alderman, set up an office in Ferguson to serve as a headquarters for a voter registration and mobilization effort. Other activists have placed registration tables at the site of Brown’s death, and outside the convenience store on Florissant Avenue where he is said to have stolen cigars not long before being killed.
Not everyone is happy about the drive for increased participation. Matt Wills, the executive director of the Missouri Republican Party, said setting up a registration booth at the site of Brown’s death was “fanning the political flames.”
- Protesters shot with pepper spray and rubber bullets say Ferguson police violated their civil rights
- Ferguson police officers seen wearing 'I am Darren Wilson' wristbands in show of solidarity with officer who killed 18-year-old Michael Brown
- There was a city council meeting last night in Ferguson, Mo.
- "Those lawful, peaceful protesters did not deserve to be treated like enemy combatants.”
The United States (U.S.) does not recognize a formal legal right to housing. Yet, the right to housing is alive in America. Using qualitative interviews and case studies, this article is the first to argue that recent housing rights movements in the U.S., such as the Occupy movements, instantiate a constitutional right to housing in America through private ordering and local law reform, rather than through constitutional adjudication or federal and state legislation. These social movements manifest the right to housing in America when they mobilize through online social networks; occupy and retain vacant and real estate-owned homes; defend home owners and renters from evictions and foreclosures; encourage municipalities to use eminent domain for principal reduction and property acquisition; and create micro-homes for the homeless. Their legal successes reformulate local property law, increase Americans' acceptance of legal arrangements that reflect the right to housing, and advance well-accepted constitutional norms. This article contributes to the popular constitutionalism debate by arguing that social movements can create constitutional meaning through private and local law reform, as well as through constitutional amendments, constitutional adjudication and federal and state legislation. This article also contributes to law and social movement scholarship by outlining how the Internet and social media help these movements avoid the pitfalls of legal mobilization and develop more flexible, informal and democratic organizing structures. Finally, these case studies demonstrate new ways social movements can shape American constitutional law and property law in the Internet Age.
The county jails have been monitored by federal officials for the last 12 years under an agreement requiring improvements in treatment of the mentally ill. On June 4, the Department of Justice announced it would seek court oversight of the jails, citing a dramatic increase in inmate suicides.
In the Sept. 25 letter, federal officials said they hoped to have a draft of a consent decree ready this week. The county's written response to the Justice Department's June 4 letter was not enough to avert federal oversight, given "the severity of the issues" and the failure of the 2002 agreement to sufficiently improve jail conditions, they wrote.
A consent decree would be overseen by a federal judge and probably cost the county millions of dollars to implement.
The June 4 letter described "dimly lit, vermin-infested, noisy, unsanitary, cramped and crowded" living conditions that exacerbated inmates' mental distress. After suicides more than doubled, from four in 2012 to 10 the following year, jail officials did little to address the situation, the letter said, calling many of the suicides preventable.
Thursday, October 2, 2014
Protesters shot with pepper spray and rubber bullets say Ferguson police violated their civil rights
The police used "wanton and excessive force" against protesters who took to the streets following the the killing of 18-year-old Michael Brown by police officer Darren Wilson, say several protesters added to the civil rights complaint against the city of Ferguson and several members of its police force. As Reuters' Cary Gillam reports:
The amended complaint, filed Thursday in U.S. District Court for the Eastern District of Missouri, seeks approximately $60 million and claims police used "wanton and excessive force" as they dealt with protests after the Aug. 9 killing of 18-year-old Michael Brown.
One of the new claimants, Ferguson resident Antawn Harris, said he was recording police as they beat another man when police turned to him and shot him in the face with a rubber bullet. Harris had to be treated at a hospital, the suit claims.
Plaintiff Nathan Burns claims he was sprayed with mace while handcuffed on the ground, and had his head slammed into the pavement.
Other plaintiffs also said they were shot him with rubber bullets, beaten and sprayed with pepper spray with no provocation.
The American Freedom Defense Initiative sued NYC's MTA because it determined that the group's "Hamas Killing Jews" ad couldn't be placed on the city's buses. "When our clients run ads exposing this Jew hatred, all of a sudden the transit authorities are worried about the 'tone' of the conversation or conjure up some threat of violence," said the group's attorney.
Wednesday, October 1, 2014
Yesterday in The Atlantic Professor Dawinder Sidhu examined Holt v. Hobbs, a First Amendment religious freedom case scheduled for oral argument before SCOTUS early next week. Principally, Sidhu questions whether SCOTUS will extend the same broad protection for religious belief it employed earlier this year in Burwell v. Hobby Lobby to the claims of a less sympathetic group – federal prisoners. He sets it up this way:
Religious freedom in the United States has ebbed and flowed between two competing concepts: the principled view that religion is a matter of individual conscience that cannot be invaded by the government, and the practical concern once expressed by Justice Antonin Scalia that accommodating all religious practices in our diverse society would be “courting anarchy.” In June, the Supreme Court ruled in Burwell v. Hobby Lobby that closely held corporations, whose owners objected to contraception on account of sincere Christian beliefs, could not be forced by the Affordable Care Act to include certain contraceptives in their employee insurance plans. In supporting the religious rights of business owners over a national health-care policy predicated on broad participation, the Roberts Court seemed to stake its place on the more protective end of the religious-freedom spectrum.
But the idea that Hobby Lobby creates robust protections will be credible only if the justices are willing to recognize the religious freedom of marginalized religious minorities—not just the Judeo-Christian tradition. The next religious-freedom case to come before the Court, Holt v. Hobbs, will test whether the Roberts Court’s stance on religious freedom includes a minority faith, Islam, practiced by a disfavored member of our society: a prisoner. At stake are both the state of religious freedom in the country and the Court’s reputation.
Holt involves Gregory Holt, an inmate in Arkansas also known as Abdul Maalik Muhammad. A dispute arose between Holt and the state’s Department of Correction when he sought to grow a one-half-inch beard in observance of his faith. According to the department’s grooming policies, inmates may only grow a “neatly trimmed mustache.” In 2011, Holt filed a lawsuit against the director of the department, Ray Hobbs, and other state employees, saying that the prison had violated his religious rights. After decisions by federal trial and appeals courts in favor of the department, Holt filed a hand-written petition to the Supreme Court, which agreed to review the case. The justices are scheduled to hear arguments in Holt on October 7.
This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.
This article examines the role of US real estate agents in redlining, reverse redlining, and greenlining practices. Redlining was the practice of the Federal government, private banks, and other institutions to deny credit to neighborhoods based on race. Reverse redlining is marketing inferior credit and other products to those same neighborhoods. Greenlining is incenting investment in previously redlined neighborhoods. This article argues that although many real estate agents used practices that unjustly excluded access to neighborhoods, all can be faithful agents of inclusion to global, flourishing communities. That is, while real estate agents took leading roles in redlining and reverse redlining in the past, they can now lead in greenlining efforts. Moreover, those who want to effect greater access to global flourishing communities should consider becoming real estate agents.
The Salt Lake Tribune's Tom Harvey reports the circumstances that led the Equal Employment Opportunity Commission to allege the franchise violated both the Americans with Disabilities Act and the Civil Rights Act:
Scott Bonn, who has Down Syndrome, began working at the Farmington restaurant in September of 2011 folding boxes, a task he was able to do with a job coach who was independently employed and insured to assist him, according to the lawsuit filed last week in U.S. District Court for Utah.
Bonn successfully did the job until a partner in the business visited the store, observed Bonn working with the job coach and then moved to have him fired.
The firing violates federal laws that require employers to provide "reasonable accommodations" such as a job coach to persons with disabilities and that the firing violated those laws, the lawsuit alleges.
Texas's prisoner barbecue just one of many routine Eighth Amendment violations taking place behind prison walls
Yesterday I noted several prisoners in Texas allege that extreme temperatures inside the state's prisons violate their Eighth Amendment prohibition on cruel and unusual punishment. Because of their confinement, the prisoners can't readily alleviate the symptoms of long term exposure to the heat without help -- they have limited access to water, few fans, and usually can't open the windows in their cells. The temperatures are especially threatening to the aging prison population, and inmates taking certain medications are also vulnerable. Several of the state's prisoners have died, and now a hearing by an arm of the Organization of American States is scheduled to review these prisons' conditions.
In an op-ed in today's Los Angeles Times, renowned attorney Martin Garbus argues that the Eighth Amendment is routinely violated in prisons throughout the country. That is, Texas is not alone. Garbus writes:
As a litigator and constitutional lawyer, I have heard appalling stories from the nation's prisons and jails. One prisoner described to me how he was handcuffed to the bottom of his bunk in his underwear day after day for months. Another described how his cell was located directly beneath broken toilet pipes, which meant the cell smelled horribly of urine and excrement. I've heard how cells are unbearably hot or cold and how four prisoners are confined to spaces intended for two, with only one set of bunk beds. I've heard about showers that produce only scalding or icy water and about how, when cell toilets overflow, staff are in no hurry to fix them or to clean up.
The health risks in prisons are also unacceptable. MRSA, a bacterial infection whose strains are often resistant to antibiotics, now runs through maximum security prisons. I contracted it myself after visiting such a prison in June and was hospitalized for three days. Sexual assaults and sexual activity are well known to occur in prisons, but prisoners rarely have access to protection, such as condoms, that can help prevent sexually transmitted diseases.
And then there is solitary confinement. It is hard to tell exactly how many prisoners are in solitary each year in the United States. Today, 44 states allow it, but many states do not report how many inmates are held in solitary. A 2005 report from the Vera Institute of Justice estimated the number at 81,622.
Tuesday, September 30, 2014
This paper describes a new model of the relationship between racial ascriptions on an individual level, private racial bias, social disadvantage, and state action, called the cognitive hierarchical model. As the name suggests, it deploys psychological, sociological, and historical evidence to argue that racial hierarchy in the wider culture leaks into our individual cognitions, and vice versa. Status evaluations turn out to be built deep into our racial perceptions.
The state, for its part, exercises a continuing influence on that culture and the cognitions it generates; this gives rise to new grounds for constitutional challenge to state complicity in racial hierarchy. To be ascribed a stigmatized racial identity is to be subject to continuing harm, which this paper calls ascriptive injury. This paper ultimately argues that the state, by participating in the continual creation and reinscription of stigmatized racial identities, causes such ascriptive injuries, and argues for a constitutional remedy.
ICYMI: George Zimmerman allegedly threatened to kill another driver while stopped at a traffic light, then followed him for two days
At the National Conference of State Legislatures blog, Wendy Underhill breaks down the election laws that will appear on state ballots this November.
The title of this post comes from this press release from the University of Texas School of Law's Human Rights Clinic announcing the October 27, 2014 hearing before the Inter-American Comission on Human Rights in Washington D.C. on the extreme heat inside Texas prisons.
Earlier this year, the Texas Civil Rights Project filed a lawsuit against the Texas Department of Criminal Justice (DCJ) on behalf of prisoners in Texas claiming that temperatures inside the state's prisons violate the prisoners' Eighth Amendment rights. CNN's Emma Lacy-Bordeaux reported at the time:
The lawsuit, broadly concerned about the lack of air conditioning across state facilities, centers on a facility in Navasota, Texas, known as the Wallace Pack Unit. Located about 70 miles northwest of Houston, the facility houses about 1,400 men. As of January, the compliant said, 114 men over the age of 70 were housed there. They have no air conditioning, and the windows which do open provide little relief, the suit claims, leading to temperatures inside that often exceed those outside.
The lawsuit alleges some 20 deaths since 1998 and details names, ages and internal body temperatures of the victims, including cases where the body temperature recorded was well over 100 degrees. One man, 45-year-old Rodney Adams, died one day after his arrival. His internal temperature registered 109.9.
Indeed, temperatures in Texas prisons often exceeded 100 degrees, a condition that affects prison staff as well as inmates. Exposure to such extreme temperatures can be particularly dangerous for elderly imates and those with specific health conditions. As NPR's Alisa Roth stated:
[T]he number of inmates prone to this sensitivity has been growing; the elderly prison population has been increasing for years, and people with mental illness make up a disproportionate percentage of inmates in the U.S.
And at least 14 prisoners reportedly have died because of heat related illnesses since 2007.
The DCJ's efforts to alleviate the effects of the heat have been few. It has added a few large fans to several of its prisons, but it doesn't appear to have otherwise substantively addressed the issue. The New York Times's Manny Fernandez reported:
A Texas law requires county jails to maintain temperature levels between 65 and 85 degrees, but the law does not apply to state prisons. The American Correctional Association recommends that temperature and humidity be mechanically raised or lowered to acceptable levels.
A prison agency spokesman, Jason Clark, said that many prison units were built before air-conditioning was commonly installed, and that many others built later in the 1980s and 1990s did not include air-conditioning because of the additional construction, maintenance and utility costs. Retrofitting prisons with air-conditioning would be extremely expensive, he said.
As a result, the agency takes a number of steps to assist inmates, Mr. Clark said, and he disputed the criticisms of inmates and their lawyers about inadequate fans, water and ventilation. On hot summer days, he said, prison officials restrict outside activity, provide frequent water breaks, allow additional showers, permit inmates to wear shorts and increase airflow by using blowers normally used to move warm air in the winter.
(h/t Grits for Breakfast)
Monday, September 29, 2014
Jennifer Jones publishes a newspaper, has run for state office, and just loves dogs. For fun, she likes to sue officials of the town in which she lives - Quartsite, Arizona. She's a troublemaker, but her latest legal foray might actually have some merit. As The Courthouse News Service reports:
Known for its huge outdoor swap meets and gem shows, and as a haven for "snowbirds" in motor homes, the Sonoran desert town of about 3,500 residents entices some 2 million visitors every winter, when the summer's triple-digit temperatures dip down to the 70s.
The crowds were long gone at a town council meeting in June 2011 when Jones received a nod from Mayor Ed Foster to speak during the public-comment portion. About a minute into her criticism of the board, then-councilman Joe Winslow interrupted and made an oral motion to have her ejected for an "unidentified procedural violation." Claiming that a majority of council members supported the motion, Winslow told Jones to leave or be escorted out by police.
Jones said then-Police Chief Jeffrey Gilbert and police officers Fabiola Garcia and Rick Paterson moved toward her, grabbed the microphone out of her hand and forcibly ejected her from the meeting. She was then arrested for disorderly conduct but the charges were later dropped.
Jones sued Quartzsite, Winslow, Gilbert, Garcia, Paterson and others in 2012, but U.S. District Judge James Teilborg ruled found Wednesday that only her First Amendment claim will go forward.
"Even if defendants acted solely to cure plaintiff's unidentified procedural violation, defendants' actions may have run afoul of applicable law because plaintiff alleges that she was speaking peacefully about a matter of town-importance after being duly recognized to speak by the moderator of the meeting," Teilborg wrote.
Ferguson police officers seen wearing 'I am Darren Wilson' wristbands in show of solidarity with officer who killed 18-year-old Michael Brown
David Savage reported in today's Los Angeles Times:
The justices will meet Monday to consider a thick pile of pending appeals, and they have before them gay-marriage cases from five states. In all five, the ban on same-sex marriages was struck down. But unlike most appeals, both sides — the winners as well as the losers — are asking justices to hear the case.
"It's a near certainty the court will decide it this term and definitively answer" whether same-sex marriage is a constitutional right, said Irv Gornstein, a law professor who directs Georgetown's Supreme Court Institute.
Gay-rights advocates who once steered clear of the high court are now eager for a ruling. "There is no question we are winning, but winning is not won," said Evan Wolfson, founder of Freedom to Marry. "It's time for the Supreme Court to finish the job."
First, the justices have to settle on which case, or cases, they will hear, and that may take a few weeks. They could hear cases from Utah, Oklahoma, Virginia, Wisconsin or Indiana. In all but Virginia, the state's top lawyers are fighting to uphold laws banning same-sex marriage.
But state attorneys in four Republican-led states say they are determined to offer the Supreme Court a robust defense of their state laws. They noted that their voters, as well as their lawmakers, had adopted measures in the last decade to define marriage as the union of a man and a woman. They sought to prevent "judicial activism" by defining marriage in the state constitution, said Wisconsin Atty. Gen. J.B. Van Hollen, in a court filing.
At least according to one survey. BuzzFeed's Adam Serwer reports:
A slim majority of whites, 51%, now said they believe the criminal justice system is biased — a smaller percentage than blacks (84%) and Latinos (60%) who said it is, according to the survey.
Majorities identifying as Republicans, tea party members, and and the elderly said they see the criminal justice system as fair, according to the survey. Fifty-seven percent of Republicans and 58% of tea party members said they believe the criminal justice system does not discriminate on the basis of race.
Perceptions about the criminal justice system aside, however, Americans’ perceptions of race and discrimination more broadly break down along racial lines. About as many white Americans who said they think the criminal justice system is racially biased against minorities also believe that anti-white discrimination is as big a problem as discrimination against minorities.
Fifty-two percent of white Americans believe that “discrimination against white Americans has become as big a problem as discrimination against black Americans and other minorities, compared to 35% of Hispanics and 29% of black Americans,” according to the survey. Sixty-one percent of Republicans and 73% of tea party members said discrimination against whites is as big a problem as discrimination against blacks — compared to only 32% of Democrats and 47% of Independents.
Thursday, September 25, 2014
Several jurisdictions in the United States (e.g., Florida and Washington) have recently incorporated the status of “homeless” under the protection of hate crime legislation. This was largely promoted by new data and reports by the National Coalition for the Homeless urging added protection for the homeless. The issue of whether the homeless belong under hate crime provisions raises the following question: What criteria must a group meet to be eligible for its inclusion? What similarities do the homeless have with other protected groups? Finally, what implications does the recognition of economic status have on other economic groups, particularity the top wealthy 1%? In this article, I explore some of the issues raised by including the homeless as a protected group. I survey several rationales offered for the selection of protected characteristics. I argue that the rationales currently offered suffer from descriptive inadequacy by either being under- or over-inclusive. I turn instead to the political conception of “disadvantage” for an identity marker that better explains the link between the various protected groups and identities under hate crime legislation. Moreover, the use of disadvantage allows for the inclusion of the homeless without the need for incorporating other socio-economic identities.
Eric Holder Jr. is expected today to announce his resignation from the U.S. Department of Justice, where he has served since 2009 as the country's first African American attorney general, the White House said. The president is set to speak this afternoon about Holder's resignation.
Holder has long said he did not intend to serve the entirety of President Barack Obama's second term in the White House. Holder in 2012 said "it's been an interesting and tough four years" and that he would ask himself "Do I think that there are things that I still want to do. Do I have gas left in the tank?" NPR first reported the news of Holder's resignation.
Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the legality of the Stop and Frisk policing regime in New York. Under this regime, police record the bases of suspicion using both a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion.
Evidence from 4.4 million stops provide an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops and identify narratives of suspicion that justify their actions beyond the idiosyncrasies of the individual case. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in caselaw governing Fourth Amendment stops.
Wednesday, September 24, 2014
On average, least educated white families still wealthier than most educated black and hispanic families
[W]hite families are much wealthier than black and hispanic families at every education level. More than that, all white families, even those at the lowest education level, have a higher median wealth than all black and hispanic families, even those at the highest education level. The median white family with an education level below high school has a net worth of $51.3k, while the median black and hispanic family with a college degree has a net worth of $25.9k and $41k respectively.
"Digital Security in the Expository Society: Spectacle, Surveillance, and Exhibition in the Neoliberal Age of Big Data"
In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. We have here a completely different structure where men who are placed next to each other on a flat surface will be surveilled from above by someone who will become a kind of universal eye.”
What should we make of those archetypes today? Do they help us better understand our neoliberal digital condition of data collection, mining, and profiling by corporate giants such as Google and Facebook, and the NSA? With neoliberalism and digitization — in the age of digital security — I suggest, we have gone beyond both spectacle and surveillance to a new form: one that is captured best by the idea of exposition or exhibition. Guy Debord spoke of “the society of the spectacle,” Foucault drew our attention instead to “the punitive society,” but it seems as if, today, we live in the expository society. This essay offers an architectural schema to better understand our contemporary distributions of power, one that focuses on the themed space of consumption. It then actualizes the metaphor by exploring one particular manifestation of a fully-digitized themed space, and asks how we have come to embrace and love these new forms of exhibition today.
Monday, September 22, 2014
This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.
Tuesday, September 16, 2014
Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.
This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.
This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.
Monday, September 15, 2014
"Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment"
This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.
Federal judge says judicial role requires upholding death penalty of innocent when procedurally fair
Friday, September 12, 2014
The Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution makes federal voting rights dependent upon participation in state elections. This Article argues that Article I incorporates both state constitutional law governing the right to vote and the democratic norms that existed within the states at the founding as the basis for determining the qualifications of federal electors. The democratic norms governing political participation can be traced to founding-era state constitutions that preserved the fundamental right of citizens to alter or abolish their governments at will, which was similar to the right of revolution exercised by the colonists against the British during the Revolutionary War. It is this understanding of the right to vote in federal elections, parasitic upon the robustly democratic notion of participation that existed at the state level and enshrined in state constitutional alter or abolish provisions, that the framers of the Constitution endorsed in the Voter Qualifications Clause of Article I. Contrary to this provision, the caselaw has divorced state and federal elections, resulting in excessive judicial deference to state regulations that govern the right to vote. As this Article shows, the Voter Qualifications Clause requires that states aggressively safeguard political participation in order to protect federal voting rights, which suggests that courts should apply a higher level of scrutiny in assessing the constitutionality of state election laws.
Thursday, September 11, 2014
The United States shares a number of basic traits with various British settler societies in the non-white world. These include longstanding histories in which colonists and their descendants divided legal, political, and economic rights between insiders and subordinated outsiders, be they expropriated indigenous groups or racial minorities. But Americans rarely think of themselves as part of an imperial family of settler polities and instead generally conceive of the country as quintessentially anti-imperial and inclusive. What explains this fact and what are its political consequences?
This essay, prepared for the Third "Law As..." Symposium, offers an initial response, arguing that a significant reason is the symbolic power of the American Federal Constitution in sustaining a particular narrative of the country as free and equal from the founding. Although this creedal narrative has played a powerful and productive role in creating a more inclusive national community, it has also, paradoxically, made it more difficult for Americans to appreciate the country’s colonial underpinnings and thus to address specific structural grievances. In developing these claims, the essay first explores how universalistic accounts of national identity and constitutional meaning began to take political hold with the country’s emergence onto the global stage following the Spanish-American War. It then analyzes the unacknowledged contemporary costs of creedal narratives by recovering a tradition of radical black critique, which viewed the dominant national identity as truncating dilemmas of race in part by deemphasizing the need for material restitution and symbolic rupture.
On September 25, the U.S. 4th Circuit Court of Appeals will begin oral arguments in the North Carolina voting rights case* over the restrictions the Republican-controlled legislature passed in 2013. As The Raleigh News & Observer's Anne Blythe reports:
The challengers contend that the 2013 election law overhaul discriminates against African-Americans, Latinos and voters younger than 25. They have asked the court to block provisions that end same-day registration, curb the number of days on which people can vote early, prohibit people from casting ballots out of their assigned precincts and end a popular teen preregistration program.
Republican leaders who shepherded the changes through the General Assembly to the desk of Gov. Pat McCrory, who signed the 2013 bill into law, argue that they are trying to ward off the potential for voter fraud, though few cases have been brought forward.
Last month, a federal judge rejected the appellant's request for a preliminary injunction against these laws, which, if approved, would have left the old laws in place through the November 2014 midterm elections. This month, the Fourth Circuit again rejected that request (here) . But, it agreed to expite their appeal.
Voters denied a chance to have their voices heard include a veteran returning from Afghanistan whose registration was incorrectly terminated while he was away; a first-time voter who registered at the DMV, but that registration didn’t reach the local board of elections; a precinct judge assigned to a precinct other than her own who couldn’t leave to vote in her home precinct; a disabled senior who was driven to a friend’s polling place on Election Day; a nurse who temporarily registered her car in a nearby county while working at its hospital for nine months; a college student who registered during a voter drive but her application was not recorded; and a new couple in town who mailed in their registration but it did not reach the county board of elections before the registration deadline.
Missouri legislature likely to override governor's veto of 72-hour waiting period before an abortion requirement
Earlier this year Missouri Republicans passed a bill that would require any woman seeking an abortion to wait 72-hours before having it. Gov. Jay Nixon, a Democrat, vetoed the bill because it had no exception for rape or incest. But the Republican grip on the state legislature appears to have prevailed. As The Los Angeles Times's Alana Semuels reports:
Legislators in the Republican-dominated legislature say they have enough votes to override Nixon's veto...
If the legislature overrides the veto, Missouri will become the third state, after Utah and South Dakota, to require a 72-hour waiting period. Utah's law, passed in 2012, makes an exception for rape and incest.
"Protesting and Policing Boundaries: the Role of Protest in Changing Ethnic Boundaries During the Civil Rights Movement"
The title of this post comes from this recent paper, the abstract of which states:
How are ethnic boundaries altered in the wake of challenges to ethnic hierarchy? While ethnic boundaries may evolve in the longterm, I argue that in moments of rupture boundaries can change quickly. Mass incarceration and police stop-and-frisk policies evidence the fact that the security apparatus of the state can institutionalize racial and ethnic boundaries through the threat of and use of violence. In this paper, I examine how the 1966 Campaign by the Chicago Freedom Movement by Martin Luther King, Jr. and the Southern Christian Leadership Conference altered the police behavior towards, and thus the racial boundary of, the black community in American cities. I use unique data, collected in 1966, on the details of nearly 20000 police-citizen interactions in Chicago, Boston, and DC. In the midst of this data collection, the SCLC began housing demonstrations in Chicago. I exploit this coincidence to test whether the protests led the policing of black communities and the application of state power at the racial boundary, to intensify or abate. By showing how the police responded to protest against the racial status quo, this paper furthers understanding of the intersection of race and criminal law. More generally, this paper employs a strong research design and unique data on ethnic practices at the micro-level to show that the content of ethnic boundaries change quickly during social upheaval.
That's Monica Wehby. Republican U.S. Senate candidate running against incumbent Democrat Sen. Jeff Merkley in Oregon. As The Lost Angeles Times observes, she would join an exclusive class of Republican senators who openly support same sex-marriage were she to win in November.
U.S. Sens. Susan Collins of Maine, Mark Kirk of Illinois, Lisa Murkowski of Alaska and Rob Portman of Ohio are the only Republicans in the Senate to support same-sex marriage.
Poll finds only 35% of people believe government surveillance has "gone too far in restricting civil liberties"
Wednesday, September 10, 2014
The strategy of taking the death penalty battle to the market by ferreting out and campaigning against lethal injection drug suppliers has been wildly successful in shriveling the execution drug supply. The supply-side strategy has not halted executions, however. Rather, the unintended consequences of shrinking execution drug supply are heightened risks of harm as states resort to alternative drugs and a surge of new state secrecy laws to protect remaining supply sources. The new secrecy laws are facing a barrage of legal challenges and a circuit split on how to resolve them. Yet despite the voluminous literature on the rights and wrongs of the death penalty, there is little study of the legal question now besetting the courts regarding execution drug supplier confidentiality. This article fills the need for a study of rise and propriety of the new lethal injection supplier confidentiality laws and the role of such laws in preventing worsening harms and unintended consequences.
The article distinguishes the frequently litigated issue of execution drug supplier confidentiality from concealment of the method of execution. There is a harm prevention rationale for supplier confidentiality, to safeguard remaining licensed drug sources and reduce the need to resort to questionable backroom sources abroad or old methods of execution such as firing squads. In contrast, eleventh-hour drug substitutions lack a harm prevention justification and are far more material contributors to the rising risk of harm. The recent rise of drug supplier confidentiality laws make them a lightning rod for challenges – and unfortunately draws attention away from the real problem: secret execution protocols rather than secret suppliers.