Thursday, September 18, 2014
As a follow-up to our prior post on the Voting Rights Act, here is an interesting article presenting new data regarding restrictive voting laws—“Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act.”
Here is the abstract:
In Shelby County v. Holder, the Supreme Court rendered one of the most potent antidiscrimination provisions of American law a dead letter: the preclearance regime of the Voting Rights Act of 1965 (VRA). Shelby County held that the formula determining which jurisdictions are required to obtain federal approval for voting law changes was outdated and offensive to states’ rights. The Court ignored ample evidence of discrimination in the covered jurisdictions, focusing instead on improvements in voter turnout and registration. We present new empirical evidence that the proposal and passage of restrictive voting laws, such as photo identification requirements and reductions of early voting opportunities, are associated with racial factors such as larger African American populations and increases in minority voter turnout. These results are consistent with the interpretation that restrictive voting laws have been pursued in order to suppress Democratic-leaning minority voters, and they are suggestive that racial discrimination is a contributing factor to this type of legislation. The increases in registration and turnout that Shelby County hailed as evidence that preclearance is no longer needed are actually risk factors for potentially discriminatory voting laws. We suggest opportunities for countering discrimination after Shelby County. The evidence we present is relevant to litigation under remaining provisions of the VRA, especially the prohibition on voting laws with a discriminatory effect under Section 2. Finally, we suggest that our findings should inform the Congressional response to Shelby County: a new coverage formula should include the racial characteristics we identify as risk factors.
Friday, September 12, 2014
Most readers of this blog are probably painfully aware of the fact that a drafter can compose the most beautiful piece of legislation ever, but it won't mean much if it doesn't have the political support needed to pass and get signed into law. Gauging such support can be difficult to do ahead of time. But one thing we do know is that elected officials and their staffers have been known to look to polling data -- even if they sometimes are reluctant to admit it.
Readers who are interested in innovative legislation that affects cities would do well to check out the "State of the City Poll" that the editors of the CityLab blog have been releasing in dribs and drabs in recent days. Yesterday's drib discussed support for local government, and prior drabs have touched on everything from opinions about local charities to support for renewable energy.
Although the wonkish among us might nit-pick the wording of some questions, and wish the CityLab editors would just drop the raw data all at once, rather than releasing it bit by bit, the series is well worth checking out.
I am a proud mother of two incredible, beautiful children. At times, as in everyone's life, somene (usually another kid) is mean or cruel to one of my kids and it raises my hackles. I want to protect my children from everything, and yet I know that is neither possible, nor truly desirable (if they are to learn to be independent, strong, and street-smart).
And then I hear of some horrible tragedy in the news... when a child has been the victim of a horrible crime. I think to myself: what would I do, as a parent, if such a tragedy hit my family? Frankly, I shudder at the dark places that question sometimes takes me.
Recently, a Texas grand jury refused to indict a father who killed a man he found allegedly sexually abusing his daughter. Learn more here. What would I do, I wondered, if I was in the father's shoes? Would I attack her abuser? What more might I do? What is the role of grief, parenting, and restitution when your child is the victim of violence? Does it matter if perpetrator of such violence against a child is an adult?
Today, an article challenged me to consider whether my instincts would change if another child were the perpetrator of such violence. The article considered one parent's effort to pass a new law that would allow victim's families to pursue criminal charges against the parents of a young perpetrator. Is it be a crime to parent a criminal? Should it be?
Of course, being a parent is not simple- for anyone. It is a complex journey with no bright line rules to follow. What should the laws be when a child (how about your child) is a victim of a violent crime? What should the law be when a child (how about your child) is the perpetrator of a violent crime against another child? What is the role of grief, parenting, restitution, blame, and prevention in all of this?
I, for one, am going to go outside to sit in the sun for a while. I know these dark places will continue to shadow me as long as I am so blessed to be a parent of these two incredible, beautiful children.
Tuesday, September 2, 2014
Last week, the California legislature passed an affirmative consent sexual assault bill. Called the "Yes Means Yes" bill, the legislation requires "students engaging in sexual activity [to obtain] 'affirmative consent' from both parties — a clear threshold that specifically could not include a person's silence, a lack of resistance or consent given while intoxicated." Further, the bill requires colleges to help victims of sexual assault seek medical care, counseling, legal assistance, and other services.
The Department of Education is currently investigating 55 colleges and universities over their handling of sexual abuse crimes.
For more information, see NPR.
Saturday, August 30, 2014
According to the National Coalition for the Homeless (NCH), in 2013 there was a 23.8% increase in number of violent attacks on people experiencing homelessness. Of the 2013 attacks, 16% resulted in the death of the homeless individual.
Attacks against persons experiencing homelessness is not isolated to one area. As the NCH report notes, these attacks occurred in 47 states as well as Washington, DC and Puerto Rico.
Sadly, the frequency – and severity – of these attacks appears to be continuing in 2014. According to a report by Al Jazeera America:
“A 12-year-old accused of shooting a 54-year-old homeless man on July 28 in Jacksonville, Florida.
In Syracuse, New York, two young teenagers accused of throwing rocks at a homeless woman on July 31 after ripping open a tent she shared with others.
In Cape Coral, Florida, a 13-year-old held without bond after a homeless man was stabbed to death Aug. 5.
And in Albuquerque, New Mexico, two homeless Navajo men, unrecognizable and beaten to death on July 19, with three teens being held on $5 million bond each after being charged with murder and a range of other crimes.”
In light of the recent wave of violent attacks against persons experiencing homelessness, many advocates are encouraging states to add homeless to hate crime laws. Most hate crime laws protect race, class, religion, and sexual orientation; if person attacks another because of one of these characteristics, the perpetrator will receive an increased sentence.
Seven states, Alaska, California, Florida, Maine, Maryland, Rhode Island, and Washington, have added homeless to their hate crime laws. Given the steady increase in attacks against homeless, lawmakers should create policy that protects an already vulnerable population from violence and abuse.
Thursday, August 28, 2014
Advocates often discuss our two-tiered society and nowhere is this more apparent than in New York City. The City recently approved a plan for a luxury building on the Upper West Side. The property will have 219 market-rate units with waterfront views and 55 affordable units that will overlook the street.
Market-rate residents (who will pay up to $25M to purchase in the building) will enjoy other amenities such as a concierge service and entertainment rooms. Residents in the affordable units, which are available to renters making no more than 60% of area median income, will not enjoy these amenities.
Nor will they even use the same entrance to the building.
The developer’s plan for the project includes a “poor door,” or separate entrance for affordable housing residents to enter/exit the building. As New York Magazine notes, the separate entrance will “spare all the residents from the terrible awkwardness of regularly encountering people whose lifestyles differ from theirs, or something.”
Extell Development proposed the property, and separate entrances, as part of an application for the Inclusionary Housing Program. Under this program, developers receive tax credits for creating affordable housing units alongside market-rate development projects. While affordable units must be in the same development, they need not be in the same property. They can be located in the same community district or even another district, if it is no greater than half a mile away.
As public housing becomes a thing of the past, inclusionary zoning tax incentives are a principal manner in which cities develop affordable housing.
Affordable housing advocates are torn. Some argue that developers should not benefit from discriminatory practices. Others argue that the focus should be on building more affordable housing units, not on who is using which door to enter.
Absent from the discussion, though, is mention of the psychological effect of the poor door on residents. One criticism of mid-century public housing was that its failure to conform to local architectural trends, along with the fact that such buildings were generally clustered in low-opportunity areas, stigmatized residents, which contributed to negative psychological outcomes. Recognizing this, affordable units developed by HUD in the 90s and 2000s championed mixed-income (though not with separate doors!), architecturally consistent properties. Like the early days of public housing, a poor door will stigmatize residents, which could result in negative behavioral health outcomes. Perhaps the City should conduct a Health Impact Assessment before breaking ground on the development?
What do you think of the poor door? Is this an acceptable way to develop affordable housing policy or another example of rampant discrimination, an equal protection case waiting to happen ? Let us know in the comments!
Wednesday, August 27, 2014
The Legislation Law Prof Blog continues to reflect on Women's Equality Day by sharing a breaking news announcement from our friends at the UC Hasting's Center for Gender & Refugee Studies (CGRS): the highest U.S. Immigration Tribunal yesterday recognized domestic violence as a basis for asylum.
On August 26, the Board of Immigration Appeals (BIA) issued a landmark ruling, Matter of A-R-C-G-, with the potential to affect immigrant women across the country. As CGRS has done with so many asylum cases based on domestic violence, it assisted the attorney in this case (Roy Petty) with briefing and strategy, and it filed an amicus brief in support of the client. CGRS has pioneered this area of the law in two internationally known cases – starting with the case of Rody Alvarado, Matter of R-A-, and then in Matter of L-R-. CGRS Director Karen Musalo, working with her colleagues at CGRS, represented both women. In 2004, and again in 2009, the Department of Homeland Security (DHS) set forth its position that women fleeing intimate partner violence can qualify for asylum and agreed to grants of asylum in R-A- and L-R-, respectively. These were important victories, signaling that these cases are viable, but they did not set precedent. Now, for the first time, there is binding precedent to support domestic violence survivors who seek protection in the United States. In addition to this trailblazing work, CGRS has maintained a steadfast commitment to helping asylum seekers fleeing domestic violence and other forms of gender-based persecution. Yesterday’s decision has been more than a decade in the making. During that time, CGRS has assisted thousands of attorneys, prepared expert declarations, produced practice advisories, researched countless country conditions reports, filed dozens of amicus briefs, and represented asylum seekers as counsel. In this case, the government of Guatemala failed to intervene when Ms. C-G-‘s husband broke her nose, repeatedly beat and raped her and burned her with paint thinner. “Governments have the obligation to protect the human rights and physical integrity of all of their citizens, without discrimination. When a government does not take violence against women seriously, and allows brutal violence to be committed with impunity, asylum is the appropriate remedy. We are glad that the BIA finally acknowledged this principle,” said Professor Musalo. It took 15 years to get here, during which CGRS advocated for the issuance of gender regulations and to recognize the validity of domestic violence claims. Now CGRS and its allies will work to make sure that this decision leads to refuge for more women, including those caught up in this latest surge of migration to our borders.
To learn more, read CGRS's press release.
Women's equality, indeed.
To commemorate the 1920 ratification of the 19th Amendment - which granted women the right to vote - Congress designated August 26 as Women’s Equality Day.
Ninety-four years later, women’s equality remains an important policy issue. The recent Supreme Court decision in Hobby Lobby (previously discussed by law prof blog) curtails women’s access to contraception. Women, on average, earn less than their male counter-parts; according to census bureau data, women earn only 77 cents for every dollar men earn. Exacerbating these issues, the US ranks last in government-supported time off for new parents.
While women have made strides (for example, women outpace men in college enrollment), there is more policy work to be done to achieve equality between men and women.
Read the White House’s statement on Women’s Equality Day here.
Monday, August 25, 2014
After the Supreme Court effectively eviscerated the Voting Rights Act in Shelby County (allowing nine states, mostly in the South, to change their election laws without advance federal approval), many folks who care about protecting the voting rights of racial and language minorities wondered if the VRA still has teeth.
Last Friday, Judge Thomas Rice made it clear that the VRA can still bite-- at least in Yakima, Washington. Forty-one percent of Yakima’s more than 91,000 residents are Hispanic, but the city has never elected a Hispanic member to its at-large City Council. In 2012, the Washington Chapter of the American Civil Liberties Union (ACLU) sued Yakima, arguing that the city’s at-large elections dilute the Latino vote and block representation despite Latinos making up a third of the city’s voting-age population.
Judge Thomas agreed, ordering Yakima to change its elections system to comply with the Voting Rights Act: “In the final analysis, there is only one rational conclusion to be drawn...that the non-Latino majority in Yakima routinely suffocates the voting preferences of the Latino minority.”
The Yakima city council is still deciding whether to appeal.
Friday, August 22, 2014
From the Huffington Post:
“A White House petition that would create a 'Mike Brown Law' requiring police officers to wear cameras has earned over 100,000 signatures in just one week.
The petition, with 131,897 signatures at the time of publication Wednesday, asks the following of the White House:
Create a bill, sign into law, and set aside funds to require all state,county, and local police, to wear a camera. The law shall be made in an effort to not only detour police misconduct(i.e. brutality, profiling, abuse of power), but to ensure that all police are following procedure, and to remove all question, from normally questionable police encounters. As well, as help to hold all parties within a police investigation, accountable for their actions.”
For more, see here.
Monday, August 11, 2014
Today, the Legislation Law Prof Blog is spotlighting a freshly posted SSRN article on the relationship between race/ethnicity and campaign finance in state legislative elections. The article is based on Albright's study of 15 states and 3000 candidates. Here's the general abstract:
In spite of the increasing campaign finance legislation aimed at equalizing barriers in political campaigns, a fundraising gap persists across racial/ethnic lines. In the era of modern campaigning, with the expenses of advertising and polling, among others, ample funds are necessary but not universally accessible to all candidates. This study addresses the relationship between candidate race/ethnicity and campaign fundraising, and the possible moderating impact of three dimensions of the state political context – state legislative professionalism, state Republican party strength, and state culture (South vs. Nonsouth). I evaluate fundraising totals across 15 states for over 3,000 candidates in the 2006 state legislative elections. Ultimately, the findings suggest that after controlling for other candidate characteristics, as well as district and state context, there is a negative, statistically significant relationship between candidate race/ethnicity and fundraising. In addition, the effect of race/ethnicity is moderated by two features of the state context - legislative professionalization and the state culture. This study finds that non-white candidates continue to fundraise less than their white counterparts and state context is important in understanding the race/ethnicity gap in campaign finance.
The SSRN link to Albright's article is here. Albright is an Assistant Professor of Political Science at the University of Indianapolis in Indianapolis, Indiana, where she teaches courses on American government, state and local government, and public administration.
We love to spotlight scholarship on legislative topics that would be of interest to our blog community-- so if you have relevant articles to recommend, please contact us!
Wednesday, August 6, 2014
We at the Legislation Law Prof Blog have received several requests for course syllabi and other course materials related to legislative advocacy or drafting. We have built a TWEN page containing some such materials that have been shared by faculty who have taught such courses in the past.
If you would like access to the TWEN course, please send us your school-based email and we will grant you access (you must be faculty to receive such access). If you have taught such courses before and are willing to share any of your materials, please email those materials to Sara Rankin at firstname.lastname@example.org and your materials will be added to the TWEN page. Eventually, we may migrate these materials to the Blog, but the TWEN page the current approach.
Such sharing of resources is an exciting way for us to learn from each other and to build a vibrant community. Thanks for participating!
Friday, August 1, 2014
There has been much discussion lately over Representative Paul Ryan’s plan to address poverty. (For background on the Ryan Plan, read: here.)
Under the Ryan Plan, titled Expanding Opportunity in America, families receiving benefits would be required to execute a contract detailing their "life plan" to escape poverty. Specifically, the contract would include:
- Measurable benchmarks for success
- A timeline for meeting the benchmarks
- Sanctions for breaking the contract
- Incentives for exceeding the terms of the contract
Critics allege the Ryan Plan is paternal, lacks respect for, and is condescending to, individuals experiencing poverty, and fails to take into consideration structural barriers to escaping poverty—such as lack of affordable housing, a dearth of available jobs, etc. (For more information, read: here.)
What do you think of the Ryan Plan? Let us know in the comments!
Wednesday, July 30, 2014
It’s no secret that health care and health policy are hot topics in the United States’ post-ACA landscape. Typically, when discussing healthcare, images of doctors in white coats, stethoscopes, and hospital rooms come to mind.
However, some jurisdictions are looking beyond traditional healthcare delivery and developing policy aimed at the underlying sources of poor health. Policymakers are recognizing that creating a system that addresses health-harming legal needs, such as homelessness and lack of food, not only improves health outcomes, but also results in cost-savings. For example, at The Brook – a supportive housing complex in New York City – an apartment costs $24,000 a year. In contrast, the city spends an estimated $56,000 per year on emergency room visits and stays at shelters and jails, where most Brook residents would otherwise go.
New York intends to invest $260 million in Medicaid dollars into supportive housing over the next two years and other states, like Illinois, are reaching similar policy conclusions. As healthcare reform forces jurisdictions to engage in preventative measures, we can expect to see more policies that include community partners – like doctors, organizers, and housing providers – on the health team.
For more information, read: New York Debates Whether Housing Counts as Healthcare
Monday, July 28, 2014
On Thursday, the 7th Circuit Court of Appeals reversed a 2010 federal district court ruling, thereby reinstating a case involved lead paint. In the 2010 case, Ernest Gibson (now 17) sued half a dozen paint manufacturers for injuries resulting from lead poisoning. Gibson’s case relied on “risk contribution theory,” recognized in 2005 by the Wisconsin Supreme Court. Under this theory, a defendant’s liability is based on the proportion of the market that manufacturer held when the plaintiff was injured, allowing a plaintiff to sue manufacturers even if he does not know which one made the product that caused the injuries.
Ruling for the defendants, Federal District Court Judge Rudolph Randa found that risk contribution theory violated the due process rights of the defendants, who produced the lead paint.
The 7th Circuit disagreed with Judge Randa. Gibson’s case will go back to federal court for further proceedings.
For more information, read U.S. appeals court reinstates Wisconsin lead paint suit
Friday, July 25, 2014
“The execution of a convicted murderer in Arizona lasted for nearly two hours on Wednesday, as witnesses said he gasped and snorted for much of that time before eventually dying.
This drawn-out death of Joseph R. Wood III in Arizona prompted the governor to order a review and drew renewed criticism of lethal injection, the main method of execution in the United States, just months after a high-profile botched execution in Oklahoma.” For more, read here.
As reported by the Death Penalty Information Center:
"Thirty-five states have either abolished the death penalty, have executions on hold, or have not carried out an execution in at least 5 years. Recently, three states, Arizona, Ohio, and Oklahoma, temporarily halted executions as reviews are conducted of recent botched executions. In four states, Arkansas, California, Kentucky, and North Carolina, a de facto moratorium on executions is in place because of lethal-injection challenges; none of those states has had an execution since 2008. Colorado, Oregon, and Washington have formal moratoriums on executions imposed by their governors. Eighteen states and the District of Columbia have abolished the death penalty. In 7 additional states, while no formal hold is in place, no execution has been conducted in at least five years. The U.S. military and federal government also authorize the death penalty, but neither has had an execution in over ten years." For more, read here.
Friday, July 18, 2014
This week, a Federal District Court Judge found California's death penalty unconstitutional. In the opinion, Judge Cormac Carney stated:
"Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the state," Carney wrote. "It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed."
The uncertainty and delay “violates the Eighth Amendment’s prohibition against cruel and unusual punishment.”
While California has the nation's lowest excecution rate (13%), it has the largest Death Row (748 inmates).
The decision is expected to inspire similar arguments in death penalty appeals around the country.
Thursday, July 17, 2014
Yesterday afternoon, the American Legislative Issue and Campaign Exchange (ALICE) and the Progressive States Network (PSN) announced that they are merging their organizations and efforts. ALICE Executive Director Nick Rathod and PSN Board Chair Sen. Joe Bolkcom stated that the merger "will consolidate the collective resources, relationships and intellectual power of both organizations towards building a more cohesive, efficient and vibrant support system for progressive legislators and partner organizations across the country."
Wednesday, July 9, 2014
The Legislation Law Prof Blog is excited to announce a quarterly spotlight on a law student whose work in legislative advocacy, drafting, and/or policymaking warrants attention. If one of your students shows such dedication, please contact us so we can showcase the next generation of legislative and policy advocates!
The inaugural student spotlight gets kicked off today, with Michael Althauser and his work on juvenile justice in Washington State!
Michael is a third year law student at Seattle University School of Law. During Michael's time in law school, he has dedicated his studies to public interest service. As President of Seattle University's Public Interest Law Foundation, Michael works to ensure that students at Seattle University have the tools they need to be able to assist and represent under-served communities. Michael currently works at Columbia Legal Services as a Gates Fellow for the Children and Youth Project. Prior to this work, Michael worked as a legislative extern for Columbia Legal Services, advocating on behalf of low incomes communities in the Legislature. Before coming to law school, Michael was a spokesman for the Senate Democratic Caucus in the Legislature and worked on and managed numerous political campaigns. Here's Michael's blog on juvenile justice in Washington:
WA advancing legal rights of juveniles on two fronts
Until recently, WA ranked among the worst in the nation on protecting the legal rights of abused and neglected children in the foster care system. However, a dual legislation/litigation strategy may improve WA’s rank for the better.
Until recently, WA was one of the few states in the nation lacking a law appointing attorneys to represent foster children in legal proceedings. Only a handful of WA counties guaranteed representation for foster youth in court. This led to the ironic, and sad, situation where everyone in court arguing over the best interests of a child had an attorney…except the child herself.
Following mounting public pressure brought on by a series of high-profile stories by King 5’s Suzannah Frame (here and here), the WA legislature passed SB 6126 by unanimous votes in both the House and Senate this past session. The bill requires appointment of attorneys to represent children who have not been adopted following termination of their parents’ legal rights - mainly foster care children. The bill took effect July 1, 2014.
At the same time, for the first time in WA State’s history, an appellate court ruled that failure to appoint counsel to a foster youth violated that youth’s legal rights. In the case, In re the Dependency of J.A., the court found that the interest of J.A. in having legal counsel outweighed the court’s financial arguments and concerns.
Continuing to move forward
Both these victories mark a momentous turn towards the positive for WA’s juvenile justice system.
Congratulations, Michael! The Legislation Law Profs Blog looks forward to continuing to celebrate the passion and vision of our students. Please let us know a student you'd like to spotlight in the next quarterly student spotlight.
Tuesday, July 8, 2014
It's no secret that the American penal system is desperately broken. For example, Michelle Alexander's compelling book, The New Jim Crow, exposed how mass incarceration targets black men and functions as a contemporary system of racial control.
Professor Michael Tonry's new article, Remodeling American Sentencing: A Blueprint for Moving Past Mass Incarceration, offers an ambitious vision for " just, fair, and effective sentencing systems." Tonry's article proposes a series of 10 legislative reforms to criminal sentencing to reduce mass incarceration. Some of these are quite radical - including reducing sentences of more than 5 years to just 5 years. Tonry contends that if all these proposals were enacted, the imprisonment rate would be reduced by half and yet would still remain 3-3.5 times that of other developed western countries.
Tonry's article is available here.
What do you think? Does Tonry's blueprint help to improve America's penal system? What other policies or proposals could help?
Do you know of new scholarship that would be of interest to subscribers of the Legislation Law Profs Blog? If so, please let us know! You can post directly to the blog in a comment or email any one of the co-editors.