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Thursday, July 10, 2014

'Prisoners and Habeas Privileges Under the Fourteenth Amendment'

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

The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes. 

The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment’s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment’s Privileges and Immunities Clause (“PI Clause”) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas power reaches state custody. 

We now know that the common-law habeas writ did not evolve primarily as a security for individual liberty, but in service of judicial power. In Boumediene v. Bush, the Supreme Court blessed this revised writ history. This Article is the second entry in a series exploring the legal implications of those revisions. In the first article, A Constitutional Theory of Habeas Power, 99 VA. L. REV. 743 (2013), I argued that Article III judicial power secured for federal prisoners the habeas privilege identified in the Suspension Clause. The question that I reserved there — and that I answer here — was whether anything about Reconstruction changed the operation of the habeas guarantee embedded in the original Articles of Constitution. 

The answer, in short, is yes. The Fourteenth Amendment PI Clause — not the Due Process Clause — expanded the constitutionally protected scope of the federal habeas privilege. The PI Clause yokes the habeas privilege to national citizenship, the rights of which neither the federal government nor states may abridge. And if, as I have argued, a federally protected habeas privilege requires a corresponding federal habeas power, then the PI Clause entitles state prisoners to a federal habeas forum. 

The first-order question I answer here — whether the Constitution guarantees a state-prisoner privilege — is logically antecedent to second- and third-order questions about the privilege’s scope. Because the Constitution entitles state prisoners to a federal habeas forum, the legal community ought to hit reset on basic assumptions about Congressional power to restrict the habeas remedy, particularly in postconviction cases.

July 10, 2014 in Prisons and Prisoners | Permalink | Comments (0)

Wednesday, July 9, 2014

'Obama should say no to a religion-based exemption on hiring discrimination'

The LATimes released this notable editorial today, which states:

Last month President Obama announced that he was drafting an executive order prohibiting federal contractors — which employ about 20% of the American workforce — from discriminating on the basis of sexual orientation or gender identity. But now the president is being beseeched to exempt religious employers from the order. He should decline the invitation.


The planned executive order is a response to the failure of the House to follow the Senate's lead in approving the Employment Non-Discrimination Act, or ENDA, which bars discrimination against gay, lesbian and transgender people by public and private employers alike. Obama is following a well-established tradition of presidents who used federal contracting authority to compensate (to a limited extent) for Congress' inaction on civil rights.


But in a letter to the president, several religious leaders — including mega-church pastor Rick Warren, who delivered the invocation at Obama's first inauguration — have warned that an order that didn't contain a religious exemption would threaten "the common good, national unity and religious freedom." That is unholy hyperbole.


It's doubtful that a large number of agreements with religious organizations would be affected by Obama's order, because most federal transactions with such groups take the form of grants. Still, if a religious organization does choose to enter into a contract to provide services for the federal government, it shouldn't be allowed to discriminate in hiring on the basis of sexual orientation or gender identity, any more than it should be allowed to engage in racial or gender discrimination.


The signers of the letter to Obama suggest that an exemption in the executive order be modeled on language in the Senate's ENDA bill. That provision says ENDA wouldn't apply to religious organizations that are free under the 1964 Civil Rights Act to discriminate in favor of employees of their own faith. But, as we noted in a previous editorial, the provision concedes too much. There is a huge difference between a church preferring to hire members of its own denomination and refusing to hire gay or transgender people.


Nor does the 1st Amendment support an exemption of the kind Warren and the others are seeking. A church that believes homosexual conduct is a sin has a constitutional right to insist that its clergy and religious teachers share that view and live by it. That doesn't give the church a right to refuse to hire a gardener or cafeteria worker because he or she is gay.


That sort of discrimination is unjustified in any circumstance, but it's exponentially more objectionable when it is subsidized by the taxpayers. Obama should say no to the request for a religious exemption.

July 9, 2014 | Permalink | Comments (1)

'The Hitchhiker's Guide to the Fourth Amendment: The Plight of Unreasonably Seized Passengers Under the Heightened Factual Nexus Approach to Exclusion'

The title of this post comes from this recent paper by Professor Nadia B. Soree, the abstract of which states:

Over thirty years ago, the Supreme Court, in Rakas v. Illinois, made it abundantly clear that “mere passengers” do not have “standing” to contest the searches of the cars in which they are riding. However, the Court offered a glimmer of hope to passengers in California v. Brendlin, by holding that passengers, like drivers, are seized when the police effectuate a traffic stop. Theoretically, then, unlawfully seized passengers can seek suppression of the evidence found in the stopped vehicles as fruit, not of the search of the vehicle, but of their unlawful detentions. Three circuits, however, have expressly adopted a heightened factual nexus test in determining whether passengers can successfully move to suppress evidence discovered in cars that are initially stopped lawfully, but whose occupants are then unlawfully detained, for example, when the duration of the stop exceeds the stop’s lawful scope. The Sixth, Ninth, and Tenth Circuits utilize a counterfactual hypothetical, typically to reach a finding that because the passenger is unable to demonstrate that the evidence would not have been found but-for her and only her detention, the passenger fails to establish the causal relationship between the constitutional violation and the discovery of evidence necessary to trigger the exclusionary rule. These courts force the passenger defendant to prove the following unlikely scenario: that had she asked the police for permission to leave, the police would have permitted her not only to leave, but to take the car (not belonging to her) as well. This Article surveys the relevant case law in the circuits that have considered and either adopted or rejected this approach and argues that the heightened factual nexus approach is inconsistent with the Court’s holdings in Brendlin and its other decisions defining seizures, particularly with respect to automobile passengers. Further, this Article posits that the heightened factual nexus approach creates a no-win situation for passenger defendants, where the very fact of their unlawful detention, necessary for standing to seek suppression, seems to preclude their success in doing so. Further, this Article argues that the subjective motivations of officers who prolong a seizure beyond its lawful scope should be taken into account when making exclusionary rule determinations, and that the Court’s decision in Whren v. United States, holding that when a traffic stop is predicated on objective probable cause, the subjective motivations of the officer are irrelevant in determining the reasonableness of the stop, does not preclude such scrutiny of officer motives in this context. Finally, the Article seeks to illustrate the danger to FourthAmendment rights and values engendered in the heightened factual nexus approach by examining data on traffic stops and motions to suppress arising from such stops.

July 9, 2014 in Fourth Amendment | Permalink | Comments (1)

Monday, July 7, 2014

'On Democracy's Doorstep: The Inside Story of How the Supreme Court Brought "One Person, One Vote" to the United States'

The title of this post comes from this recently released book by J. Douglas Smith, which, according to David Garrow's review in WaPo, is an "excellent and definitive book." According to Garrow:

Remembrances of the 1964 Civil Rights Act often celebrate the crucial roles that Republican legislators Everett Dirksen and William McCulloch played in that bill’s passage, but at the same time that Johnson was signing that landmark statute into law, Dirksen and McCulloch were championing a nationwide effort to enact a constitutional amendment to override the Supreme Court’s redistricting rulings. That crusade, which won widespread corporate backing, has been almost entirely forgotten, and Smith’s impressive research recaptures an otherwise unremembered chapter in U.S. history. He rightly notes that “Dirksen appeared not to fully comprehend that the Supreme Court’s reapportionment decisions had empowered Republican voters in the suburbs every bit as much as they had Democrats in the shrinking cities.”


“On Democracy’s Doorstep” recounts a triumphant story of constitutional reform that dramatically advanced the promise of democracy, yet Smith correctly concludes by emphasizing how the marked escalation of partisan gerrymandering in recent decades, and the Supreme Court’s refusal to confront it, has greatly dulled the promise that “one person, one vote” offered in June 1964.

Here's the summary of the book:

As chief justice of the U.S. Supreme Court, Earl Warren is most often remembered for landmark rulings in favor of desegregation and the rights of the accused. But Warren himself identified a lesser known group of cases—Baker v. Carr, Reynolds v. Sims, and their companions—as his most important work. J. Douglas Smith’s On Democracy’s Doorstep masterfully recounts the tumultuous and often overlooked events that established the principle of “one person, one vote” in the United States.


Before the Warren Court acted, American democracy was in poor order. As citizens migrated to urban areas, legislative boundaries remained the same, giving rural lawmakers from sparsely populated districts disproportionate political power—a power they often used on behalf of influential business interests. Smith shows how activists ranging from city boosters in Tennessee to the League of Women Voters worked to end malapportionment, incurring the wrath of chambers of commerce and southern segregationists as they did so. Despite a conspiracy of legislative inaction and a 1946 Supreme Court decision that instructed the judiciary not to enter the “political thicket,” advocates did not lose hope. As Smith shows, they skillfully used the Fourteenth Amendment’s Equal Protection Clause to argue for radical judicial intervention. Smith vividly depicts the unfolding drama as Attorney General Robert F. Kennedy pressed for change, Solicitor General Archibald Cox cautiously held back, young clerks pushed the justices toward ever-bolder reform, and the powerful Senate Minority Leader Everett Dirksen obsessively sought to reverse the judicial revolution that had upended state governments from California to Virginia.


Today, following the Court’s recent controversial decisions on voting rights and campaign finance, the battles described in On Democracy’s Doorstep have increasing relevance. With erudition and verve, Smith illuminates this neglected episode of American political history and confronts its profound consequences.

July 7, 2014 in Right to Vote | Permalink | Comments (1)

'Dispatches From Freedom Summer'

Beginning tomorrow, July 8, 2014, ProPublica will run a series of reflections on the effort to register African Americans to vote in Mississippi during the summer of 1964. According to ProPublica's announcement: 

Fifty years ago this summer, hundreds of black and white volunteers converged on Mississippi in an effort to, as they put it, make Mississippi a part of America. What became known as Freedom Summer spanned 10 bloody weeks, helped transform the South and aided in the passage of the Voting Rights Act of 1965 that helped ensure black Southerners their constitutional right to vote.


We are assembling a range of reflections on that time in Mississippi, to be called “Dispatches From Freedom Summer” and to be published over the course of the next two months. We plan to hear from the widow of a slain civil rights worker, a reporter whose work led to the prosecution of several former Klan members and a onetime federal judge who as a young lawyer was involved in the often raw racial politics of the time. The pieces — on the impact of Freedom Summer, both then and now — will be published by ProPublica and, we hope, by other news outlets across the country. “Dispatches” will start this Tuesday with a piece by ProPublica’s Nikole Hannah-Jones, who last month visited, for the first time, her father’s birthplace, Greenwood, Miss., a kind of ground zero of Freedom Summer.

July 7, 2014 in Right to Vote | Permalink | Comments (0)

Saturday, July 5, 2014

'Navigating a Post-Windsor World: The Promise and Limits of Marriage Equality'

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

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (e.g., Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws where some states allow marriage, others ban it, and others have created parallel legal categories that grant some or all of the rights of marriage (e.g., civil union, domestic partnership, reciprocal beneficiary).

The post-Windsor complexity and lack of uniformity has left LGBT individuals to navigate an uncertain and rapidly changing legal landscape. With over thirty marriage cases pending in federal courts across the country, and positive decisions from many conservative federal District Courts, it seems that the U.S. is poised for nation-wide marriage equality within the next several years. Although many members of the media have already declared that the struggle for LGBT rights has been won, this article explains why these reports are not only premature, but miss the mark by conflating marriage equality with the larger LGBT rights movement. It details both the promise of marriage equality and its limitations.

July 5, 2014 in Same-sex marriage | Permalink | Comments (1)

Thursday, July 3, 2014

'Justice Scalia's Fourth Amendment Text, Context, Clarity, and Occasional Faint-Hearted Originalism'

The title of this post comes from this intriguing paper by Professor Timothy C. MacDonnell, the abstract of which states:

Since joining the United States Supreme Court in 1986, Justice Scalia has been one of the most prominent voices on the Fourth Amendment, having written twenty majority opinions, twelve concurrences and eight dissents on the topic. Justice Scalia’s Fourth Amendment opinions have had a significant effect on the Court’s jurisprudence relative to the Fourth Amendment. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision for how technology’s encroachment on privacy should be addressed; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed the originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from these commitments; particularly in the areas of the special needs doctrine and qualified immunity. The article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the Fourth Amendment in favor of law enforcement interests.

July 3, 2014 in Fourth Amendment | Permalink | Comments (1)

Police order woman to remove 'Unmarked police car' bumper sticker

Professor Jonathan Turley lays out the basics of this disappointing story:

The two cars pulled over Konchinsky and one officer ordered her to stay in her vehicle. An officer then asked if the minivan was her vehicle and demanded her license and registration.” He then reportedly stated “With that bumper sticker, someone could think you’re impersonating a police officer.’” He then allegedly added that she could even be shot by someone who didn’t like police officers. They ordered her to pile off the bumper sticker if she wanted to go. She was late for work and later contacted the ACLU. She is the mother of one adult and one school-age child.

Read Prof. Turley's full post here.

July 3, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (0)

MO governor vetoes "disrespectful" abortion bill

On Wednesday, Missouri Gov. Jay Nixon vetoed a bill that would have established a 72-hour wait period for all women seeking abortions. According to the governor, the bill was "a disrespectful measure that would unnecessarily prolong the suffering of rape and incest victims and jeopardize the health and wellbeing of women."

Missouri law already requires women to wait 24-hours after their initial visit with an abortion provider before the procedure may be performed. Only Utah and South Dakota currently require women to wait 72 hours.

July 3, 2014 | Permalink | Comments (0)

Monday, June 30, 2014

'LBJ's second great battle: Enforcing the Civil Rights Act'

Wednesday, July 2, marks the 50th Anniversary of the signing of the Civil Rights Act of 1964 by President Lyndon B. Johnson. The title of this post comes from playwright Robert Schenkkan's op-ed 090119_lbj_middletonin yesterday's LATimes examining the president's subsequent efforts to enforce the hard-won law. He writes:

Jim Crow began to die, in part because LBJ well understood that passing laws was one thing and enforcing them quite another. Just as he had been determined to muscle the bill through Congress, Johnson was determined to see the law carried out by every executive power at his command.


Title II (public accommodations) of the act overturned state and local segregation laws, and the Supreme Court helped by upholding its application to the private sector through the commerce clause.


There had been chilling resistance in some quarters. In Jonesboro, La., that summer, the public library and swimming pool remained off-limits to blacks, and when local youths protested, 40 of them, and some of their parents, were arrested. To drive the point home, the Ku Klux Klan paraded through the black neighborhood in full regalia, carrying guns, led by a sheriff's patrol car.


Both sides began to arm themselves, and a very real race war was only averted by a federal injunction and the personal intervention of administration officials, including Humphrey, who by then was vice president.


Title VII (workplace discrimination) created the Equal Employment Opportunity Commission. Women had been given special protection under the new law, not out of any moral imperative but as a poison-pill amendment introduced by Virginia Rep. Howard W. "Judge" Smith, who hoped that Northern senators sensitive to union concerns would not support a bill that granted women equal rights. He was wrong. And to everyone's surprise, Title VII would profoundly alter the legal and cultural landscape for women as well as blacks.


Title VI (discrimination in government-funded activities) was even more immediately successful. Swift directives from the White House to the Department of Health, Education and Welfare to cease giving federal dollars to segregated hospitals transformed facilities overnight. Where moral suasion had failed, the threat of defunding worked wonders.


President Johnson was determined to see the [Civil Rights Act] carried out by every executive power at his command. 


Similarly, a quick ruling by U.S. Commissioner of Education Francis Keppel announced the withholding of federal funds ($4 billion) from school districts in 17 long-segregated states. In one year, there were more public school desegregation commitments than had been achieved over the previous decade. To ensure this was more than lip-service, the Office of Education developed objective, quantifiable measures to evaluate progress.


In 1965, the Voting Rights Act was the final nail in the coffin of Jim Crow. Six days later, Watts erupted in violence, the first in a series of urban riots as the long-simmering frustration of blacks trapped in city slums sought release. At the same time, the white backlash and subsequent political realignment that LBJ had predicted was already underway.


The South, once solidly Democratic, would become a Republican stronghold. And the civil rights movement would meet its Waterloo not in Southern cities but in Boston and Chicago, where Northerners would discover that the limits of their racial tolerance ended in their own neighborhoods. Politicians who could no longer get away with using the vilest excesses of racial language communicated in coded but comfortable phrases like "law and order" and the "intrusive federal government."


Today, even after the election of a black president, men and women of color still suffer disproportionally against almost every measure of American life. So how should we feel about the 1964 Civil Rights Act? We should feel proud of an achievement that brought us closer to the founding ideals of this country. We should feel humbled by the sacrifice of millions of people over decades of hard and painful work to bring that change about. And we should feel challenged because the work is not yet complete.

June 30, 2014 in Civil Rights Act, Civil Rights History | Permalink | Comments (2)

Sunday, June 29, 2014

'The End of End-of-Life Law'

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

“End-of-life decision-making” in the health care arena is increasingly governed by special rules that insist on legally exact, complex documentation, depend on idealized notions of patient autonomy, and may be driven by political ideology rather than concern for patients. These rules — though often well-intended — can impede rather than honor patients’ wishes, values, interests, and relationships. This article analyzes the effects of these special rules through discussion of patient stories, the empirical literature on advance care planning and patient preferences, and state surrogate decision-making statutes and living will forms. It argues that questions about medical care at the end of life should be approached like other important questions about medical care. Reducing the legal distinctions between these types of decisions can bring good legal/ethical practices in caring for patients generally to caring for them when they are dying and also bring important lessons learned from decades of end-of-life law and ethics to the care of patients at any stage of life and health. The article provides a blueprint for reform through eight general principles that should guide the law relating to all health care decisions, including those we now think of as end-of-life decisions.

June 29, 2014 | Permalink | Comments (0)

Saturday, June 28, 2014

'Hobby Lobby and the Pathology of Citizens United'

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

This Essay explores a distinct way Citizens United v. Federal Election Commission promises to influence pending challenges to the Patient Protection and Affordable Care Act (ACA), and a host of cases to come. Specifically, the way Citizens United approached precedent will likely affect, and radiate well beyond, the current ACA challenges. Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. While this is not an entirely new move for the Court, the contribution of Citizens United was to normalize this disconcerting stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains why it is cause for deep concern.

June 28, 2014 | Permalink | Comments (1)

Friday, June 27, 2014

As in Alaska, voters in Oregon will have the opportunity to legalize marijuana this November

Reason's Jacob Sullum has the details here.

June 27, 2014 | Permalink | Comments (0)

'The Supreme Court Was Right to Allow Anti-Abortion Protests'

The LATimes may not have liked SCOTUS's decision in McCullen v. Coakley, but renowned constitutional scholar Laurence Tribe finds the decision "unquestionably" correct. In his NYTimes op-ed, he writes:

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice. In his opinion for the court, Chief Justice John G. Roberts Jr. affirmed the value of these personal conversations: “If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

He later adds:

In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.


Justice Antonin Scalia, the most forceful of the conservatives, correctly criticized this sleight-of-hand in his concurrence with Chief Justice Roberts, arguing convincingly, as did Justice Samuel A. Alito Jr., that the law at issue was anything but neutral toward the content of the speech at issue but represented a form of censorship. Justice Scalia and the justices joining him, Anthony M. Kennedy and Clarence Thomas, worried that a spurious unanimity by the court would encourage other jurisdictions to attempt, and get away with, similar sorts of discrimination favoring some kinds of speech over others.


This is not to say that other rights can never outweigh free speech. In 1992, the court upheld a buffer zone limiting political speech around a polling place. Thursday’s opinion sensibly distinguished between voting booths and abortion clinics, focusing on the difficulty of detecting low-visibility voter intimidation as compared with the “anything but subtle” harassment of women seeking abortions.


It focused as well on the deliberate exclusion of police officers near polling places in order to avoid the reality or appearance of official pressure on voters, an issue absent with abortion clinics, where the police are free to protect women from being pressured by others. The state has many alternative measures available to protect patient safety and autonomy, and the court’s decision rightly insists that the state must exhaust those alternatives before resorting to a blanket restriction of free speech.


Thursday’s opinion in no way restricts the right to choose whether or not to terminate a pregnancy guaranteed by Roe v. Wade, in 1973, and reaffirmed, in 1992, in Planned Parenthood v. Casey. Nor does recognizing a duty to protect freedom of speech in this setting ask us to deny the genuine anguish suffered even by women who are confronted by quiet protesters rather than noisy agitators on their way to use reproductive health services. But neither empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.

June 27, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (0)

LATimes editorial laments SCOTUS decision to strike down buffer zones around abortion clinics

Yesterday, SCOTUS announced its decision in McCullen v. Coakley striking down Massachusetts' law banning anti-abortion protesters from coming within 35 feet of abortion clinics as violative of the First Amendment. The LATimes Editorial Board isn't pleased. It writes:

The 1994 shootings may have been the impetus for Massachusetts to write its first law on the subject, but the Guttmacher Institute, a research organization that supports the right to abortion, notes that clinics across the country continue to report bombings, vandalism, blockades, arson and violent protests. Just because some opponents of abortion are peaceful doesn't mean women don't need protection from others.


You'll hear no argument from us about how vital the right to free speech is. But that does not mean that all other rights must yield to it at all times.

June 27, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (0)

'A Signal or a Silo? Title VII's Unexpected Hegemony'

The title of this post comes from this intriguing paper by Professor Sophia Z. Lee, the abstract of which states:

Title VII’s domination of employment discrimination law today was not inevitable. Indeed, when Title VII was initially enacted, its supporters viewed it as weak and flawed. They first sought to strengthen and improve the law by disseminating equal employment enforcement throughout the federal government. Only in the late 1970s did they instead favor consolidating enforcement under Title VII and its implementing agency, the Equal Employment Opportunity Commission. Yet to labor historians and legal scholars, Title VII’s triumphs came at a steep cost to unions. They write wistfully of an alternative regime that would have better harmonized antidiscrimination with labor law’s recognition of workers’ right to organize and bargain collectively with employers. This chapter explains how these impulses played out during Title VII’s uncertain first fifteen years as advocates, legislators, administrators, and workers pursued a more powerful Title VII on the one hand and one more harmonized with labor rights on the other. Empowering Title VII via dissemination proved more costly and less effective than its proponents expected; achieving a more harmonious regime was more complicated than is currently thought. This history provides a cautionary tale to those today who seek to reinvigorate labor rights by incorporating them into Title VII.

June 27, 2014 | Permalink | Comments (0)

Thursday, June 26, 2014

'Public Assistance, Drug Testing, and the Law: The Limits of Population-Based Legal Analysis'

The title of this post comes from this recent paper by Professor Candice T. Player, the abstract of which states:

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues — not unlike law and economics — as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges courts to recognize population health as an important norm in legal reasoning. What should we do when the insights of public health and conventional legal reasoning conflict? Still in its infancy, population-based analysis offers little in the way of answers to these questions. This Article applies population-based legal analysis to the constitutional problems that arise when states condition public assistance benefits on passing a drug test, thereby highlighting the strengths of the population perspective and exposing its weaknesses.

June 26, 2014 | Permalink | Comments (0)

Tuesday, June 24, 2014

'A SWAT team blew a hole in my 2-year-old son'

The title of this post comes from one mother's horrific tale posted today at, which reads:

After our house burned down in Wisconsin a few months ago, my husband and I packed our four young kids and all our belongings into a gold minivan and drove to my sister-in-law’s place, just outside of Atlanta. On the back windshield, we pasted six stick figures: a dad, a mom, three young girls, and one baby boy.


That minivan was sitting in the front driveway of my sister-in-law’s place the night a SWAT team broke in, looking for a small amount of drugs they thought my husband’s nephew had. Some of my kids’ toys were in the front yard, but the officers claimed they had no way of knowing children might be present. Our whole family was sleeping in the same room, one bed for us, one for the girls, and a crib.


After the SWAT team broke down the door, they threw a flashbang grenade inside. It landed in my son’s crib.


Flashbang grenades were created for soldiers to use during battle. When they explode, the noise is so loud and the flash is so bright that anyone close by is temporarily blinded and deafened. It’s been three weeks since the flashbang exploded next to my sleeping baby, and he’s still covered in burns.


There’s still a hole in his chest that exposes his ribs. At least that’s what I’ve been told; I’m afraid to look.


My husband’s nephew, the one they were looking for, wasn’t there. He doesn’t even live in that house. After breaking down the door, throwing my husband to the ground, and screaming at my children, the officers – armed with M16s – filed through the house like they were playing war. They searched for drugs and never found any.


I heard my baby wailing and asked one of the officers to let me hold him. He screamed at me to sit down and shut up and blocked my view, so I couldn’t see my son. I could see a singed crib. And I could see a pool of blood. The officers yelled at me to calm down and told me my son was fine, that he’d just lost a tooth. It was only hours later when they finally let us drive to the hospital that we found out Bou Bou was in the intensive burn unit and that he’d been placed into a medically induced coma.


For the last three weeks, my husband and I have been sleeping at the hospital. We tell our son that we love him and we’ll never leave him behind. His car seat is still in the minivan, right where it’s always been, and we whisper to him that soon we’ll be taking him home with us.


Every morning, I have to face the reality that my son is fighting for his life. It’s not clear whether he’ll live or die. All of this to find a small amount of drugs?


The only silver lining I can possibly see is that my baby Bou Bou’s story might make us angry enough that we stop accepting brutal SWAT raids as a normal way to fight the “war on drugs.” I know that this has happened to other families, here in Georgia and across the country. I know that SWAT teams are breaking into homes in the middle of the night, more often than not just to serve search warrants in drug cases. I know that too many local cops have stockpiled weapons that were made for soldiers to take to war. And as is usually the case with aggressive policing, I know that people of color and poor people are more likely to be targeted.  I know these things because of the American Civil Liberties Union’s new report, and because I’m working with them to push for restraints on the use of SWAT.


A few nights ago, my 8-year-old woke up in the middle of the night screaming, “No, don’t kill him! You’re hurting my brother! Don’t kill him.” How can I ever make that go away? I used to tell my kids that if they were ever in trouble, they should go to the police for help. Now my kids don’t want to go to sleep at night because they’re afraid the cops will kill them or their family. It’s time to remind the cops that they should be serving and protecting our neighborhoods, not waging war on the people in them.


I pray every minute that I’ll get to hear my son’s laugh again, that I’ll get to watch him eat French fries or hear him sing his favorite song from “Frozen.” I’d give anything to watch him chase after his sisters again. I want justice for my baby, and that means making sure no other family ever has to feel this horrible pain.

June 24, 2014 | Permalink | Comments (1)

Sunday, June 22, 2014

Lawsuit by Texas prisoners seeks accommodations similar to those given to pigs

Prisoners in Texas are claiming the conditions of the state's prisons violate their constitutional rights. It's too hot, their civil rights suit alleges. As CNN reports:

The suit cites internal data from the Texas Department of Criminal Justice which found that over the past three years the mercury topped 100 degrees Fahrenheit. Thermometer-537x358"Stainless steel tables in the inmate dormitories become hot to the touch" the complaint reads and "prisoners have to lay towels down on the table to rest their elbows while sitting."


In addition to the older inmates, the complaint said a number of men have various underlying medical conditions that make them especially vulnerable to heat stroke, like 69-year-old Marvin Yates, who has chronic obstructive pulmonary disease and hypertension.


"I don't know if I will make it this summer. The heat and humidity are so bad inside I have trouble breathing," said Yates, one of three named plaintiffs, in a press release announcing the lawsuit.


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.

The Eighth Amendment prohibits "cruel and unusual punishment," which SCOTUS has long held precludes punishment that degrades human dignity. Prisoners' restricted movement and limited access to prison facilities that have air conditioning - such as the administrative facilities - mean that there is virtually nothing they can do to mitigate exposure to extreme heat. Although Texas law prohibits county jails from allowing facility temperatures to exceed 85 degrees, state facilities are not likewise restricted. Then there's this:

The lawsuit alleges that hogs on Texas Department of Criminal Justice property receive better treatment than the prisoners. "TDCJ policy requires temperatures be kept no higher than 85 degrees to ensure 'pig comfort,'" the suit said, adding that the department begins "to cool the pigs when the temperature goes above 74 degrees to keep the pigs 'comfortable.'"

The lawsuit, filed by the Texas Civil Rights Project and the University of Texas School of Law Civil Rights Clinic, requests that these facilities be made to keep temperatures at 88 degrees or below. 

June 22, 2014 in Prisons and Prisoners | Permalink | Comments (0)

Thursday, June 19, 2014

'Correctional Officer Excessive Use of Force: Civil Liability Under Section 1983'

The title of this post comes from this intriguing study recently published by the The Prison Journal, the abstract of which states:

Despite recent research demonstrating the impact of inmate perceptions of correctional legitimacy on order maintenance, the extant literature has failed to examine the contextual reality of correctional excessive use of force claims. Utilizing legal cases from the U.S. Court of Appeals and U.S. District Courts, this article examines correctional officer excessive use of non-deadly force and identifies recurring themes in these claims. Findings highlight the common occurrence of retaliatory violence, negative attitudes, failure to listen to inmate concerns, inadequate training, and an inability to decipher reliable threat cues consistently present in correctional officer use of non-deadly force claims. Suggestions for future research and policy implications are offered.

June 19, 2014 in 42 U.S.C. § 1983, Excessive Force, Prisons and Prisoners | Permalink | Comments (0)


The Wisconsin State Journal: Prosecutors accuse Scott Walker of running 'criminal scheme'

Prosecutors accuse Gov. Scott Walker of overseeing a sweeping "criminal scheme" to illegally coordinate fundraising and campaign activity among conservative groups in a broad effort to help him -- as well as Republican senators -- fend off recalls targeting them in 2011 and 2012, court documents unsealed Thursday show.


In the documents, which were unsealed by a federal appeals court judge Thursday morning, prosecutors described what they called a "criminal scheme" to circumvent state campaign finance and election laws.

June 19, 2014 | Permalink | Comments (1)

'Police Ignorance of the Law Is No Excuse'

Cato Institute's Ilya Shapiro argues (I think correctly) that a police search violates the Fourth Amendment's reasonableness requirement when conducted based upon a police officer's incorrect assesment that the conduct justifying the search is illegal. Shapiro writes: 

To execute any search or seizure, a police officer must reasonably suspect that a crime has been or is being committed based on the facts available to him at the time he executes the search or seizure. Under this standard, searches can be lawful even if the officer is mistaken in his understanding of the facts before him, as long as his understanding led him to reasonably suspect criminal activity. But what if the officer is mistaken about whether a particular activity is actually criminal?


Nicholas Heien was driving with a broken taillight in North Carolina when he was pulled over by police who mistakenly believed that state law required two working taillights. Upon receiving consent to search the car—note: you don’t have to agree to such requests!—police found cocaine and charged Heien with drug trafficking. At his trial, Heien sought to suppress the evidence arising out of the search by arguing that the officer never had the reasonable suspicion necessary to pull his vehicle over because having one broken taillight is not illegal. The trial court ruled against him, but the appellate court found a Fourth Amendment violation and reversed. The North Carolina Supreme Court reversed in turn, by a 4-3 vote, holding that an officer’s understanding of the state’s taillight requirements could form the basis for reasonable suspicion because that understanding, while incorrect, was reasonable.


There is considerable disagreement among state and federal courts, so the U.S. Supreme Court took the case to resolve the issue. In a brief filed jointly with the National Association of Criminal Defense Lawyers, the ACLU, and the ACLU of North Carolina, Cato argues that the approach taken by the North Carolina Supreme is inconsistent with the logic that applies to factual mistakes committed by law enforcement and erodes civil liberties, all while undermining police authority and safety. The allowance for mistakes of fact in police evaluation of suspicious conduct is justified because facts can be ambiguous and unique to each circumstance, and officers must make quick evaluations based on their own observation and expertise. In contrast, the law is the same regardless of the particular circumstance to which it is applied, and can be ascertained long before the officer needs to enforce it. Officers have no specialized expertise in evaluating law, while ambiguities in the criminal code are typically resolved (by courts) in favor of criminal defendants, or struck down for vagueness. The burden placed on citizens by our accommodation of officers’ mistakes of fact is justified as a means of avoiding the social cost of unlawful conduct. Lawful conduct imposes no such cost, however, so excusing mistakes of law serves no social purpose.


The North Carolina ruling opens citizens up to searches based on all kinds of lawful conduct, as long as law enforcement can have a “reasonable” misapprehension of the law in a given area. To avoid the intrusion of police searches, people will need not only to avoid appearing to participate in criminal activity, but also to avoid appearing to participate in innocent activity which police could construe as criminal. The result is a system in which “ignorance of the law is no excuse” for citizens facing conviction, but police can use their own ignorance about the law to their advantage. Officers are therefore disincentivized from knowing the law, which undermines public confidence in their authority and encourages citizens to dispute it during police encounters—putting both parties in greater danger. The U.S. Supreme Court should make clear that law enforcement mistakes of law preclude lawful searches and seizures under the Fourth Amendment.


The Supreme Court will hear the case of Heien v. North Carolina this fall.

June 19, 2014 in Fourth Amendment, Search | Permalink | Comments (0)

Wednesday, June 18, 2014

Few protections exist for the victims of online harassment

One needs to spend little time online to experience the wrath of easily and oft-slighted morons. Say something about anything on a message board and you're bound to draw the attention of someone looking for space and a target for their frustrations. Such tirades are usually humorous in their Internet_trollsimplicity, but occasionally their authors cross the line. However, as The Atlantic's Noah Berlatsky reports, a notable study by the Center on Law and Information Policy at Fordham Law School finds that victims of online harassment find little relief from the law. Berlatsky writes:

[The study's authors] point to the case of United States v. Alkhabaz, in which the defendant described in detail on a Usenet message board violent sexual acts he imagined performing on one of his classmates. The case was eventually thrown out because the defendant did not email the story to his classmate, and did not intend her to see it. As the authors say, "Alkhabaz demonstrates that the burden to determine a 'true threat' is quite high, and presumably most hostile online speech would fail to meet the standard determined by the Sixth Circuit." In fact, [Alice] Marwick and [Ross] Miller found very few incidents in which a harasser faced criminal penalties. It hardly ever happens.


Despite such difficulties, it's not clear that it would be a good idea to make it easier to criminalize online speech. As the authors say, "People from all sides of the political, social, and economic spectrum use ‘internet vigilantism’ to target and shame those they disagree with, from Men’s Rights activists shaming feminist filmmakers to feminists shaming writers they believe to be sexist." There are already high-profile discussions which frame activism by women of color online as abusive. If online speech is criminalized, it seems likely that the most powerful speakers won't be targeted first.


So, if the police are unlikely to act, and the First Amendment makes most legal remedies impossible, what can you do? 


Practically, the path most victims have taken is to use the legal system not to win a judgment, but to subpoena IP records. Legal proceedings can allow victims to unmask and potentially publicize the names of their anonymous harassers. This is what Lori Stewart eventually did. After going to the police, she was able to discover the harasser's identity; Robin B. King, a 56-year-old Defense Department employee based in the Saint Louis suburbs. (In April, King pleaded guilty to a misdemeanor count of harassment through electronic communication, according to local news reports.)


Unfortunately, even identifying harassers doesn't necessarily stop them. As Marwick told me in an email: "Right now unmasking anonymous users is often seen as the best option by the harassed, often because it's very very difficult to pursue criminal proceedings and service providers are not legally required to remove content or reveal information about their users. However, that doesn't mean it's an effective solution. While the threat of revealing IP addresses and ‘real names’ can deter some harassers, it's certainly not true for all."


Marwick added that Lori Stewart's threat to reveal Robin King's identity didn't end his harassment. Stewart had to actually get a restraining order, and press charges. 


Ultimately, the best way to deal with harassment is probably not legal, but communal. Marwick told me that, "there are places on the internet where such harassment does not happen, whether due to the culture and norms of the site, or aggressive moderation." She pointed to Metafilter "which discusses all manner of controversial and personal issues. It costs $5 to set up an account, and postings can easily be flagged and removed." Another example (that Marwick doesn't mention) is Comic Book Resources, a comics website which revamped its message boards after one of its writers received rape and death threats.


Hiring moderators and policing comments can be expensive, and the logistics become very difficult when you're dealing with something as large as Twitter or Facebook. Still, Marwick and Miller suggest that getting Twitter and Facebook to deal more proactively with harassment is likely going to be easier, and more effective, than trying to pass new laws, or increase prosecutions. And smaller venues, too, have a responsibility to prevent harassment and protect users—all the more so since the government is not likely to do it for them.

June 18, 2014 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

'When it comes to politics, there's no need to outlaw lying'

The Los Angeles Times's editorial board today summarily dismisses the constitutionality of laws criminalizing false statements about political candidates. It claims that such laws chill speech otherwise protected by the First Amendment, writing:

In more than a dozen states it can be a criminal offense to make a false statement about a candidate for public office. But such laws are unnecessary, and open to abuse. On Monday, the Supreme Court handed down a unanimous decision that could be the first step in doing away with them.


The justices ruled in favor of the Susan B. Anthony List, an antiabortion group that wants to challenge an Ohio law making it a crime to utter a false statement "concerning the voting record of a candidate or public official." The issue before the court was whether the group had suffered a sufficient injury to have standing to sue.


During the 2010 election campaign, the Susan B. Anthony List planned to post an ad on billboards accusing then-Rep. Steven Driehaus (D-Ohio) of voting "for taxpayer-funded abortion" when he supported the Affordable Care Act. After plans for the ad were reported in the news, Driehaus filed a complaint with the Ohio Elections Commission, a panel of which determined that there was "probable cause" that the ad was false.


The ad never went up because the owner of the billboard space feared legal reprisals. Driehaus withdrew his complaint after losing the election and before final commission action or referral to prosecutors. But the Susan B. Anthony List persisted in challenging the constitutionality of the law. A federal appeals court ruled that the suit couldn't proceed because the issues were now moot and the plaintiffs no longer faced an "imminent threat" of prosecution.


The Supreme Court's decision to overturn that ruling is welcome because citizens who believe their freedom of speech is being chilled by an unconstitutional law shouldn't have to wait until they are prosecuted to challenge the law. Furthermore, the decision increases the likelihood that the court will eventually rule on whether laws like Ohio's violate the 1st Amendment.


We think they do. No one condones lying about (or by) politicians. But the price of criminalizing false statements in political campaigns is that candidates and citizens alike may be deterred from engaging in the "uninhibited, robust and wide-open" debate that the court has said is protected by the Constitution. And often it will be a matter of debate whether a characterization of a candidate's record is false or merely misleading.


In 2012, the justices struck down a federal law making it a crime for a person to falsely claim to have received military honors. Justice Anthony M. Kennedy wrote: "The remedy for speech that is false is speech that is true." That observation is especially applicable to the cut-and-thrust of a political campaign. The veracity of statements about a candidate's record is best policed by his opponents and by fact-checkers in the media, not by prosecutors.

June 18, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (0)

Saturday, June 14, 2014

'The Civil Rights Act at Fifty: Past, Present, Future'

The title of this post comes from this essay by Professor David Freeman Engstrom, the abstract of which states:

This brief essay introduces the Stanford Law Review issue accompanying the symposium, “The Civil Rights Act at Fifty,” convened at Stanford Law School on January 24-25, 2014. It provides a digestible overview of each of the five written contributions to the symposium – including Sam Bagenstos and Richard Epstein on Title II, Olatunde Johnson on Title VI, and Mary Anne Case and Richard Ford on Title VII – and then offers some thoughts connecting them.

June 14, 2014 in Civil Rights Act | Permalink | Comments (0)

Wednesday, June 11, 2014

'Racial or Partisan Gerrymandering: Supreme Court to Decide'

The National Conference of State Legislatures Blog's Lisa Soronen reported yesterday on two notable voting rights cases scheduled for review by SCOTUS later this term. The title of this post comes from that post, which states:

In many cases, judges disagree about how to apply the law. In some cases, judges disagree about the facts of the case or, more specifically, about what facts are important and what conclusions to draw from the facts. All this and more is what the federal district court majority and dissenters disagree about in two redistricting cases the U.S. Supreme Court will review.  


In Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, the Supreme Court will decide whether Alabama’s redistricting plan violates Section 2 of the Voting Rights Act and the 14th Amendment’s Equal Protection Clause by intentionally packing black voters into districts already containing a majority of black voters. 


The Alabama Legislature’s 2010 redistricting plan maintains the number of House and Senate majority-black districts. But because most of the majority-black districts were underpopulated, the Legislature “redrew the districts by shifting more black voters into the majority-black districts to maintain the same relative percentages of black voters in those districts.” Black voters allege that packing them into super-majority districts limits their potential influence in other jurisdictions.


Section 2 of the Voting Rights Act prohibits vote dilution, where the legislature enacts a voting scheme that intentionally minimizes or cancels out the voting potential of racial or ethnic minorities. The 14th Amendment’s Equal Protection Clause prohibits gerrymandering, or separating voters into districts based on race.


Two district court judges rejected the argument that vote dilution or racial gerrymandering occurred in this case, ruling that race wasn’t the predominate motiving factor in creating the districts. Instead, the judges ruled, the Legislature “maintained the cores of existing districts, made districts more compact where possible, kept almost all of the incumbents within their districts, and respected communities of interest where possible.” 


A dissenting judge disagreed. Judge Thompson opined that the drafters set a quota that they would not decrease the percent of black voters in any district. To achieve these quotas, the Legislature “eliminated existing districts, created conflicts between incumbents, ignored legislators’ preferences, and split of huge volume of precincts.”


Redistricting in compliance with the Voting Rights Act and the U.S. Constitution is a perennial issue for state legislatures.  

CRL&P related posts:

June 11, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Tuesday, June 10, 2014

'Qualified Immunity and Constitutional-Norm Generation in the Post-Saucier Era: 'Clearly Establishing' the Law Through Civilian Oversight of Police'

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

The Supreme Court has prescribed a two-pronged analysis for qualified immunity claims that asks (1) whether the claimant’s allegations state a violation of a constitutional right and (2) whether the constitutional right in question was “clearly established” at the time of the officer’s acts. Over the past decade, the Court has vacillated on the appropriate order of analysis: In 2001, the Court in Saucier v. Katz mandated that lower courts first reach the question of whether the claimant had articulated a constitutional violation, and only then proceed to assess whether the right was “clearly established” at the relevant time; then, in 2009, the Court in Pearson v. Callahan unanimously rejected Saucier’s fixed order of analysis in favor of a discretionary approach. The reason for the Court’s equivocation: The conflict between the role of qualified immunity analysis in developing constitutional norms and concerns for judicial economy and the principle of constitutional avoidance. Despite the Court’s repeated affirmations of the value of constitutional merits adjudication, though, there is ample evidence that the end of mandatory Saucier sequencing threatens to grind the gears of constitutional rights articulation to a halt.

However, a glimmer of hope appears in the Court’s enigmatic approach to “clearly established” law. In a series of cases in early 2000s, the Court signaled its willingness to consider non-decisional law in determining whether a right was “clearly established” and, correspondingly, whether an official had fair notice of the unconstitutionality of her conduct. Consistent with these rulings, lower federal courts have cited to a vast array of non-decisional law in qualified immunity decisions, ranging from internal guidelines to reports of compliance agencies. Identifying this jurisprudential space and recognizing the parallels between the fact-intensive, legally oriented work of police oversight agencies and the non-judicial sources of law endorsed by federal courts, Mr. Meltzer advocates for the findings of civilian external investigatory oversight bodies to assume a prominent role in the qualified immunity analysis. In particular, Mr. Meltzer proposes that the investigative findings and policy recommendations of agencies like New York's Civilian Complaint Review Board (CCRB) be given at least the same weight as internal police regulations and advisory reports by external compliance agencies, and possibly as much weight as regional appellate court opinions, in the assessment of “clearly established” law.

Parts I and II provide the theoretical framework for this proposal: Part I explains the purpose and the structure of constitutional civil rights litigation and highlights the post-Saucier dilemma of constitutional stagnation. Part II describes the process of constitutional-norm generation occurring in civilian external investigatory bodies, taking the CCRB as an exemplar, and explores the jurisprudential foundations for treating the findings of oversight bodies as a source of “clearly established” constitutional law. Part III sketches the proposal, arguing in favor of using civilian external investigatory oversight findings to promote the development of constitutional rights and prove “clearly established” law in a § 1983 claim.

June 10, 2014 | Permalink | Comments (0)

Monday, June 9, 2014

'Wisconsin attorney general files to halt same-sex marriages in state'

As expected, Wisconsin AG J.B. Van Hollen has filed with the Seventh Circuit a request for an emergency stay of the decision issued Friday by U.S. District Judge Barbara Crabb holding that state's ban on same-sex marriage is unconstitutional.

Van Hollen's official statement can be found here.

UPDATE: On Monday, Judge Crabb rejected Van Hollen's request for a stay of her decision pending the state's appeal to the Seventh Circuit. Van Hollen has also requested a stay from the Seventh Circuit.

June 9, 2014 | Permalink | Comments (0)

SCOTUS denies review of decision requiring California to monitor compliance with ADA by local jails

The Los Angeles Times reports today that SCOTUS has rejected California's appeal of the lower court decision requiring the state to ensure that prisoners transferred to county jails receive the accommodations required under the Americans With Disabilities Act. Under Gov. Jerry Brown's leadership, California began transferring state prisoners to local jails after the Court found that overcrowding in state prisons so burdened medical staff that they could not provide adequate medical and mental healthcare. As The Times's David Savage writes:

In 2012, the Legislature decreed that these inmates were the "sole legal custody" of county officials.


But last year, the 9th Circuit Court of Appeals ruled that the state retained the legal duty to make sure that prisoners who have a disability are given the "reasonable accommodations" required under the Americans With Disabilities Act, even if they are held in a county jail.


"These accommodations include the basic necessities of life for disabled prisoners and parolees, such as wheelchairs, sign-language interpreters, accessible beds and toilets and tapping canes for the blind," said Judge Stephen Reinhardt for the 9th Circuit. "The state is not absolved of all of its responsibility for ADA obligations as to the parolees" just because they are now held in county jails, he wrote.


The appeals court upheld a 43-page order by U.S. District Judge Claudia Wilken which said state officials must check with each parole violator who is sent to a county jail and has a disability. She said the state must see to it that the inmate receives the accommodations required under the law.


Brown and Atty. Gen. Kamala Harris appealed to the Supreme Court in March and asked for a review of the 9th Circuit's decision. It "sets a dangerous and sweeping precedent that effectively nullifies the states' 10th Amendment right to delegate powers to local governments," they said. If left standing, it would leave the state "liable for alleged ADA violations in the county jails," they argued.


Late last year, the state said about 26,000 parolees were being held in 200 jails throughout the state, and 1,889 of them had a disability. This number is constantly changing, they said.


In reply to the appeal, lawyers for the prisoners who sued the state said Brown and Harris had exaggerated the impact of the judge's order. "At its core, the injunction merely requires the state to provide disability notifications, collect disability data and issue reports to the counties," they told the court.


After considering the appeal last week, the court said it had denied review in the case of Brown v. Armstrong.

June 9, 2014 in Prisons and Prisoners | Permalink | Comments (0)

Sunday, June 8, 2014

'It is Political: Using the Models of Judicial Decision-Making to Explain the Ideological History of Title VII'

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

Scholars and observers often explain or interpret Supreme Court decisions based on the ideology of the sitting Justices. Many offer a similarly political account of the Court’s decisions in actions brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). Certain events in the history of Title VII do suggest ideological decision-making by the Supreme Court. Dozens of the Court’s Title VII opinions are split between the conservative and liberal Justices. On three separate occasions, including most recently the Lilly Ledbetter Fair Pay Act of 2009, a more liberal Congress amended Title VII in order to override the Supreme Court’s conservative interpretation of the statute. Yet subsequent to each of these amendments, the conservative Justices continued to vote to restrict Title VII, apparently following their political preference over Congressional intent. 

The full history of Title VII, however, does not conclusively establish that the Supreme Court is deciding cases according to ideological viewpoint. Although numerous split decisions fall along ideological lines, other cases, including a number of unanimous decisions, reflect votes contrary to political viewpoint and potentially indicate a different dynamic. The fifty years of Title VII jurisprudence therefore present the opportunity to assess whether Justices’ votes on issues of employment discrimination are determined by their respective ideology. 

To answer this question, this article turns to the work of political science scholars, specifically, the models of judicial decision-making developed by political theorists over the past two decades. These models use sophisticated empirical techniques to test whether the Justices of the Supreme Court vote according to their ideology and to explain the circumstances when Justices vote contrary to their viewpoint. Their work can be divided into three predominant models, attitudinal, strategic and integrated, all of which agree that that ideology influences Supreme Court decisions, but offer different explanations for the exceptions when the Court’s ideological pursuit is apparently constrained. The political science models therefore offer the potential to explain Title VII’s varied jurisprudence. 

This potential, however, is not fully realized. The strategic and integrated models fail to effectively explain a significant portion of the Supreme Court’s Title VII decisions because these models have generally failed to study the effect of statutory overrides on the Court’s decision-making. This article therefore draws on the few studies of overrides that are available, and some of the more context-specific analyses, to draw a more nuanced model for Title VII and to account for the apparent exceptions to ideological decision-making. Ultimately, this article asserts that the history of Title VII is not only political, but particularly so, with the Supreme Court exhibiting strong resistance to any restraint on their ideological voting in the area of employment discrimination.

June 8, 2014 in Civil Rights Act | Permalink | Comments (0)

Saturday, June 7, 2014

'Speed is through the eyes of the beholder.'

WaPo's Katie Zezima recently interviewed Margaret H. Marshall, former chief justice of the Massachusetts Supreme Court and author of Goodridge v. Department of Public Health, the decision that legalized same-sex marriage in Massachusetts. Particularly intriguing is Marshall's response to claims that the success of same-sex marriage has come quickly since her 2003 decision.

It is often people who have had access to these rights and responsibilities who think of it as speed, but for those who have not had access to these rights and responsibilities they may view it differently, and they do view it differently. Because the time between 2003, when the Goodridge case was decided, [and now] -- it did not change the law outside Massachusetts. And now it is a decade later. So think of it through a child’s eyes. A couple wants to adopt and raise a child. And they must wait for 10 years, then file a lawsuit. That’s a long time for a couple to wait. It might be that the woman is 35 and she’s now 45. That’s a biological challenge. It might be that there’s a particular child a male gay couple wants to adopt and the child is 2 or 3 or 4 and the child is now 12 or 13 or 14. Speed is through the eyes of the beholder. And the first legal case raising a right of access to marriage for same-sex couples was filed close to 50 years ago.

According to Freedom to Marry, 19 states now allow same-sex marriages. In eight others, judges have struck down same-sex marriage bans, but marriage equality in those states generally awaits appellate review of those decisions. 

Most recently, U.S. District Judge Barbara Crabb struck down Wisconsin's same-sex marriage ban yesterday as violative of the "liberty and equality" rights of same-sex couples.  She wrote:

I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiff’s right to marry, in violation of the Due Process Clause, and discriminates against plaintiffs on the basis of sexual orientation, in violation of the Equal Protection Clause.

June 7, 2014 in 14th Amendment, Same-sex marriage | Permalink | Comments (0)

Friday, June 6, 2014

'Enforcing Equality: Statutory Injunctions, Equitable Balancing Under eBay, and the Civil Rights Act of 1964'

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

The four-factor test for issuing injunctions under federal laws that the Supreme Court endorsed in eBay, Inc. v MercExchange, L.L.C. requires courts to make quintessentially policy judgments and affords them tremendous discretion to decline to grant relief. Courts face additional challenges in determining whether the eBay standard governs injunctions under laws such as the Civil Rights Act, how it should apply in such circumstances, or whether it should be modified. 

This Article offers a new framework for statutory injunctions. Courts should neither apply a single, uniform standard in determining whether to issue such injunctions, nor vary the standard depending on the nature of the statute being enforced. Rather, the proper approach depends on the nature of the relief a plaintiff seeks — in particular, whether the plaintiff seeks remedial relief, to repair harm she already has suffered, or prospective relief, to prevent further statutory violations. A court should grant a plaintiff’s request for a remedial order, if possible, unless the combined burdens or harm that it would cause for the defendant and third parties overwhelmingly outweigh the benefit to the plaintiff. Conversely, when a successful plaintiff has standing to seek prospective relief, a court automatically should enjoin repeated, ongoing, or impending statutory violations, and wait until subsequent contempt proceedings to determine the propriety of enforcing the injunction under the circumstances. 

While remedial injunctions play a valuable role, Congress should avoid relying on prospective injunctions as statutory remedies. Instead, it should enable courts to directly apply civil and criminal contempt-type remedies for statutory violations, rather than requiring plaintiffs to first take the “intermediate” step of obtaining an injunction.

June 6, 2014 in Civil Rights Act | Permalink | Comments (0)

Thursday, June 5, 2014

'The public’s right to know'

The Boston Globe lauds the First Circuit's recent decision confirming the right of citizens to videotape police officers as falling under the protection of the First Amendment in this editorial, writing:

Given the rash of canceled commencement speeches, it has been a tough season for free speech advocates. So a recent federal appeals court ruling that reaffirmed a First Amendment right to record a police traffic stop is reason to cheer.


The case goes back to the night of March 24, 2010, when Carla Gericke of Lebanon, N.H., was following an acquaintance in another car. A Weare police officer drove up behind them with lights flashing. When the officer started questioning the other driver, Gericke pointed a video camera at him. She was subsequently charged with violating New Hampshire’s wiretapping law, among other offenses.


Gericke was not prosecuted, but she sued the Town of Weare, its police department, and the arresting officers. She argued that police retaliated against her for exercising her First Amendment rights. The officers said they were entitled to immunity because there was no clearly established right to record the traffic stop.


The Court of Appeals for the First Circuit agreed with Gericke, relying on a prior First Circuit case upholding a plaintiff’s right to film police officers who were arresting a man on the Boston Common. In the earlier case, the court ruled that gathering information about government officials “serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’ ” With Gericke, the court said, the key question is whether a traffic stop puts the attempted filming “outside the constitutionally protected right to film police” — and concluded, “It does not.”


The ruling gave Gericke the right to pursue a civil rights action against the police, but, according to her attorney, Seth Hipple, the case was settled. The larger message, however, goes on, and it is encouraging: While police may not like to be filmed or recorded, they can’t use their law-enforcement powers to try to stop it.

(h/t ABA Journal)

June 5, 2014 in First Amendment | Permalink | Comments (0)

'Highly Respected Prosecutor Hides Exculpating Evidence, Man Spends 24 Years in Jail for No Reason'

Brian Doherty summarizes this recent ProPublica report at As the title of Doherty's post suggests, the details of this case are upsetting.

June 5, 2014 | Permalink | Comments (0)


And it only took nearly 48 hours of my time on the phone with Time Warner representatives. That's progress!

June 5, 2014 in Web/Tech | Permalink | Comments (0)

Tuesday, June 3, 2014

"Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death"

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

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences. The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution, but most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

June 3, 2014 | Permalink | Comments (0)

Thursday, May 29, 2014

“It was big enough for me to put my fist in there”

...says an Arizona inmate of her untreated lower abdominal wound.

Regan Clarine had been pregnant, and the prison's medical staff attempted to induce labor. But this failed. So they performed a C-section. However, the sutures that closed the incision made during the procedure came loose hours later while Clarine was back in her cell. She allegedly went untreated for two weeks.

"It was the worst pain I'd ever been through in my life."

Al Jazeera's Abigail Leonard and Adam May report the disturbing details of what happened next: 

When she finally saw medical staff, she said they told her that she was lucky to be alive. They treated her with a wound vacuum. Then, she said, they employed an antiquated medical treatment.


“They decided to use sugar… like McDonald’s sugar,” she said. “They would open it and pour it inside [the wound] and put gauze over and tape it up. And I had to do that for like three weeks.”

The article continues:

Clarine’s story is one of dozens. Two years ago, Arizona privatized its prison health care system like many counties and other states have done. In a six-month investigation, America Tonight found disturbing cases of inadequate treatment, and evidence that Wexford Health Sources Inc., the first private company Arizona contracted to provide prison health care, was aware that it was violating prisoners’ constitutional rights.


Arizona’s system is currently run by Corizon Health, Inc., the largest private prison health care provider in the country. Now, for the first time ever, one of its former employees is blowing the whistle about its failures.

CRL&P related posts:

May 29, 2014 in Prisons and Prisoners | Permalink | Comments (0)

"The Judicialization of Politics: The Challenge of the ALI Principles of Election Law Project"

Professors Steven Huefner and Edward Foley recently released this important paper, which should be required reading for any election law aficionado. The abstract states:

The American Law Institute's "Principles of Election Law" Project is a clear example of the ALI tackling a new and perhaps difficult field. This article elaborates on the main challenges and opportunities that this Project presents. It begins with a brief overview of some of the unique features of election law as a field of American law. In light of these features, it then discusses the Project's work on the subject of disputed elections, and the Project's efforts to develop best practices concerning non-precinct voting. It then offers some concluding thoughts about the development of principles of election law.

May 29, 2014 in Election Law | Permalink | Comments (0)

Federal civil rights claims against Philly police continue rise in 2013

The title of this post comes from this notable article by Dana DiFilippo and David Gambacorta in today's Philadelphia Daily News on the nearly sixty percent increase in 2013 in settlement payments to plaintiffs claiming misconduct by Philadelphia police. The extensive article begins:

ImagesOn a warm night in Overbrook, Askia Sabur spotted his cousin outside a Chinese takeout and pedaled his bicycle over to chat.


Within minutes, Sabur lay bleeding and barely conscious on the sidewalk, as a crowd of cops - several with long histories of brutality complaints - beat him, opening gashes on his head that would require six staples to close.


In West Philadelphia, Stephen Moore was watching TV alone in his bedroom when his home-security system announced his front door was open.


Moore went to investigate, only to be pumped full of lead by a cop who started firing after entering the house without saying a word.


And in Kensington, police who tried to arrest Kahlif Snowden over a suspected drug sale ended up violating policy by Tasing him in the neck three times until he fell unconscious. He was left in a persistent vegetative state.


Sabur, Moore and Snowden were among 128 plaintiffs who received nearly $14 million in settlements from the city last year from civil-rights lawsuits filed against police.


That marked a huge jump from the $8.3 million paid out for such suits in 2012, and an even bigger increase from the $4.2 million paid five years earlier. Those figures don't include the millions paid annually to settle lawsuits from police-involved car accidents or labor and employment claims.

Philadelphia is not alone. For example, The Las Vegas Sun also reported on the substantial increase in federal civil rights claims filed against the city's police department, a trend beginning in 2008.

May 29, 2014 in Civil Rights Litigation, Excessive Force | Permalink | Comments (0)

Monday, May 26, 2014

"The Loyal Opposition"

The title of this post comes from this notable article by Professor Heather Gerken, the abstract of which states:

The term loyal opposition is not often used in American debates because (we think) we lack an institutional structure for allowing minorities to take part in governance. On this view, we’ve found our own way to build loyalty while licensing opposition, but it’s been a rights-based strategy, not an institutional one. Rights are the means we use to build a loyal opposition, and diversity is the measure for our success. 

The story isn’t just wrong. It’s also not nearly as attractive a tale as we make it out to be. An unduly narrow focus on rights, combined with some genuinely ugly history, has also led us to endorse thin, even anemic visions of integration. And it’s led us to adopt a measure of democratic legitimacy that involves relatively little power for those it’s supposed to empower. 

None of this should be news to the academics, particular those in the nationalist camp. Nationalists know we owe our loyal opposition something more. They just can’t tell us what that “something more” is. Worse, they denigrate the “something more” we do offer democracy’s outliers – federalism. Federalism and rights have served as interlocking gears, moving our democracy forward. Yet it’s been all too easy for nationalists to play the role of the critic, simultaneously complaining about national rights and national politics while trotting out outdated complaints about federalism. Those who think that decentralization should be understood as a distinctively American vision of the loyal opposition can fairly ask the nationalists to put something better on the table. To use the unduly blunt vernacular of the playground, the question is whether it’s time for the nationalists to put up or shut up.

May 26, 2014 | Permalink | Comments (0)

Sunday, May 25, 2014

Overdue Programming Note

As readers of CRL&P have undoubtedly noticed, I have posted quite irregularly over the last week or so. That is because I'm currently with my wife en route from Cleveland to our new home in Los Angeles. As it turns out, internet access is not always available when we want it - i.e. between Sioux Falls and Rapid City, SD - which has left us, on occasion, needing to rely on roadmaps instead of iPhones. In any case, I will be posting whenever time and internet availability permit. I will commence blogging regularly on June 1 from my new home in sunny California.

For inquiring minds, here is where we're beginning today's journey.


This is what preceded it:


May 25, 2014 | Permalink | Comments (0)

"Expert Testimony on Interrogation and False Confession"

The title of this post comes from this intriguing new article, the abstract of which states:

This article examines the need and bases for expert testimony on false confessions in criminal cases. Drawing on social science research, the article first briefly assesses the role of false confessions in wrongful convictions, including the nature of the false confession problem and the impact of false confessions in producing false convictions as well as in tainting other evidence and other aspects of police investigations. The article then turns to admissibility standards that govern expert testimony and their application to false confession expert testimony. In particular it sets forth the typical standards used for assessing admissibility of expert evidence and then shows that, when those standards are applied objectively, appropriately framed expert testimony on false confessions should be admissible in most cases. In particular, the article discusses the research on false confessions to highlight the types of facts that experts can provide to juries. The article then addresses the most prominent systemic response to coerced confessions "the Miranda warnings." The article examines psychological research to demonstrate that Miranda provides very little protection against coerced and false confessions, and, therefore, cannot provide justification for dispensing with expert testimony.

May 25, 2014 | Permalink | Comments (0)

Thursday, May 22, 2014

"Coerced Parenthood as Family Policy: Feminism, the Moral Agency of Women, and Men's 'Right to Choose'"

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

Part of what makes human agency moral is the demand that individuals think through their choices and, to the extent that they are choices made freely and unilaterally, that they shoulder most if not all of the consequences that visit upon those choices. It is not uncommon for the state to intervene in this moral field, shifting to choice-bystanders or the entire society the consequences attracted by free and unilateral choices individuals make. However, counter-intuitively, sometimes this burden reallocation operates to discount the moral agency of the individual whose choice was free and unilateral. Indeed, in a world of subtle forms of domination, disrespect for the moral agency of certain groups sometimes takes the form of a privilege that is benign on the surface while profoundly undermining in its long term impact on those groups’ claims to equal moral agency. This article argues that there is an aspect of women’s reproductive privileges that undermine their equal moral agency. Unfortunately, this phenomenon of subjugation-through-rights-guarantees has escaped feminist analysis of reproductive rights.

This article focuses on one instance of this phenomenon. The Supreme Court has established and regulated a basic privacy right to reproductive choices. However, men are not currently given similar choices and are compelled to parent as an effect of state policy that gives women unilateral reproductive choices in several instances, women are deprived of full responsibility for the consequences of those choices and surrender a significant dimension of their moral agency to a type of disempowering paternalism. This article argues that, as a principle of equality, men and women should be given similar choices regarding their reproductive destinies and correspondingly face the consequences for their choices.

May 22, 2014 | Permalink | Comments (0)

Saturday, May 17, 2014

Nothing like the smell of gunpowder in the morning

The controversial executions in Ohio and Oklahoma give you pause? You're questioning the justness of lethal injection? There must be a better way to kill convicted murders? No problem, says one state legislator in Utah. As the AP reports, the remedy to present injustices might come from a method of the past: 

4-posada-firing-squad-grangerState representative Paul Ray, a Republican from the northern city of Clearfield, plans to introduce his proposal during Utah's next legislative session in January. Lawmakers in Wyoming and Missouri floated similar ideas this year, but both efforts stalled. Ray, however, may succeed.


Utah already has a tradition of execution by firing squad, with five police officers using .30-caliber Winchester rifles to execute Ronnie Lee Gardner in 2010, the last execution by rifle to be held in the state.


Ray argues the controversial method may seem more palatable now, especially as states struggle with lawsuits and drug shortages that have complicated lethal injections.


"It sounds like the wild west, but it's probably the most humane way to kill somebody," Ray said.


Utah eliminated execution by firing squad in 2004, citing the excessive media attention it gave inmates. But those sentenced to death before that date still had the option of choosing it, which is how Gardner ended up standing in front of five armed Utah police officers. Gardner was sentenced to death for fatally shooting a Salt Lake City attorney in 1985 while trying to escape from a courthouse.


He was third person to die by firing squad after the US supreme court reinstated the death penalty in 1976. Other death-row inmates have opted to die by gunfire instead of lethal injection in Utah, but they are all several years away from exhausting the appeals of their death sentences, Assistant Utah Attorney General Thomas Brunker said. Ray's proposal would give all inmates the option.

CRL&P related posts:

May 17, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (1)

Thursday, May 15, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 15, 2014 | Permalink | Comments (1)

"Is the NSA Spying Upon Judges?"

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

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


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


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


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


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


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


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

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

Wednesday, May 14, 2014

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

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

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

May 14, 2014 | Permalink | Comments (0)

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

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

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


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


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


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

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

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

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

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


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

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

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

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


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

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

CRL&P related posts:

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