Friday, February 27, 2015
Earlier this week, Georgia Governor Nathan Deal signed an executive order that prohibits state agencies from requiring job applicants to disclose their criminal history in initial application forms. In doing so, Georgia joined 13 other states (including Illinois, Massachusetts, and Minnesota) and over 100 cities that have adopted similar policies aimed at decreasing employment discrimination among individuals with criminal histories.
‘Ban the Box’ policies strive to increase employment and career development opportunities for individuals with criminal convictions. Without initial knowledge of an applicant’s criminal history, employers cannot automatically exclude a qualified applicant based solely on past offenses. The National Employment Law Project estimates that nearly 70 million Americans have criminal records and policies like “Ban the Box” facilitate the reintegration of these individuals into the workforce, reduce recidivism, and increase employers’ pools of qualified applicants.
The executive order states that over 1,300 offenders re-enter Georgia’s communities each month. The provisions laid out in Georgia’s ‘Ban the Box’ order work to eliminate some of the barriers that ex-offenders face when reintegrating into society. Specifically, it prohibits the use of application forms that require candidates to disclose their criminal records and prevents the use of an individual’s criminal history as an automatic disqualifier from a job. Georgia’s order also provides applicants with the opportunity to discuss the nature and relevance of their criminal history, along with the rehabilitation efforts they have made, with the employer.
While six states have ‘Ban the Box’ policies that apply to both private and public employers, Georgia’s order applies only to employment offered through the state and specifically excludes “sensitive governmental positions.” Nonetheless, Governor Deal’s executive order is important step towards decreasing job discrimination and increasing employment opportunities for people with criminal histories.
Last summer, the American Legislative Exchange Council (ALEC) announced the launch of a spinoff organization aimed at local government. The American City County Exchange (ACCE) aims to "advance limited government and free market principles in local government through model policies, conferences and online collaboration."
In December, ACCE held its first winter meeting, and it has announced that its second annual conference will be held this July. These meetings give a sense of the ACCE policy agenda, which, not surprisingly, mimics that of ALEC. As the Center for Media and Democracy reported last week, labor issues such as right to work, pensions, and minimum wages are scheduled for discussion at the upcoming meeting.
Also up at CMD's website is a fascinating report on the ACCE winter meeting by Steve Arnold, a Fitchburg, Wisconsin alderman who went "undercover" to find out what was going on. He saw a "corporate dating service in action," where industry lobbyists made presentations on their pet issues and courted officials in what Arnold describes as a "you scratch my back, I’ll scratch yours" manner. Perhaps most interesting is Arnold's reporting on ALEC's "contradictory approach to local control," exemplified by an emerging ALEC/ACCE strategy for pushing right to work through local initiatives in Republican-controlled states right to work states.
The report, available here, is a must-read for anyone interested in local government law and policy.
Thursday, February 26, 2015
Like many other law schools across the nation, here at Seattle U we are celebrating Diversity Week. The terrible irony is that this very week, I’ve seen a stunning display of new anti-diversity laws proposed across the nation: Texas, West Virginia, Florida, Kentucky, Arkansas, and Tennessee are just some of the latest jurisdictions to advance the codification of hate, particularly against LGBTQ people. Check out the two articles below for more on how some states seem to be celebrating anti-diversity week.
First, behold West Virginia and Arkansas:
February 25, 2015 4:22 PM
West Virginia lawmakers have advanced a bill that would ban towns and cities from enforcing local non-discrimination ordinances. In a heated debate that lasted about one hour, the West Virginia House Committee on Government Organization just passed a bill that bans local governments from enforcing non-discrimination ordinances that expand the state's non-discrimination law. The vote was 16-8.
Targeted at the LGBT community, the bill, if it becomes law, would nullify the non-discrimination laws in six West Virginia cities, and would ban other jurisdictions from enacting non-discrimination laws that protect LGBT people, the elderly, and veterans.
The legislation is being pushed through as a commerce bill, under the claim that it will attract businesses from out of state who would prefer to not have to deal with varying laws in different cities. In truth, most businesses have far stronger non-discrimination policies than any in the state.
The bill, HB 2881, known as the West Virginia Intrastate Commerce Improvement Act, was filed just Monday and scheduled Tuesday night, displaying Republican's desire to push it through without time for factual debate.
It mirrors a similar bill that just became law in Arkansas, another that is being debated in Texas, and one that is already law in Tennessee. Opponents say it undermines local control.
HB 2881 is sponsored by Republican Rep. Lynne Arvon, who is also sponsoring an anti-gay, religious license to discriminate bill, the West Virginia Freedom of Conscience Protection Act.
The bill moves to the full House for a vote.
Next, check out Texas, Florida, and Kentucky:
Posted on February 26, 2015 at 9:06 am
Texas State Rep. Debbie Riddle (R) has introduced two new bills that seek to criminalize the use of bathrooms by transgender people. Not only could trans people face jail time and fines for using gender-segregated facilities that match their gender, so too could businesses who make their facilities open to trans patrons.
H.B. 1747 would amend Texas’ existing laws on disorderly conduct by adding a provision that relates to when a person “enters a public restroom that is designated by a sign for members of the opposite sex of the actor.” Sex, it specifies, is established by the individual’s driver’s license. In Texas, transgender people actually can obtain identity documents that match their gender — if judges cooperate.
Riddle’s other bill, H.B. 1748, does not offer the same flexibility. It defines gender as what is “established at the individual’s birth” or “established by the individual’s chromosomes,” with chromosomes controlling if there’s a mismatch. Thus, it erases the experience of transgender people as it sets out very strict rules for who can use what facility. Under HB 1748, it would be a Class A misdemeanor for any individual over the age of 13 to “enter a locker room, shower facility, or toilet facility that is designated for use by persons of a gender that is not the same gender as the individual’s gender.”
Under Texas law, a Class A misdemeanor shall be punished by a fine of up to $4,000 and up to a year in jail. The bill creates exceptions only for those serving a custodial purpose, providing medical assistance, or accompanying a young child that is not of the same gender. The bill also targets any “operator, manager, superintendent, or other person with authority over a building,” stipulating that they may not allow anyone to enter a locker room, shower facility, or toilet facility that does not match their gender. Any facility owner who does allow such access has committed a state jail felony. Texas law would dictate a minimum of 180 days in prison with a maximum of two years, as well a fine up to $10,000.
ThinkProgress has sought comment from Riddle’s office since Monday morning, successfully making contact several times over the course of the week. She has refused, however, to respond with any statement about the anti-transgender legislation she has introduced. On Facebook, however, she did mention back in January her intention to introduce a bill that “will protect women & children from going into a ladies restroom & finding a man who feels like he is a woman that day.”
Riddle’s legislation mirrors similar bills introduced in Florida and Kentucky. Florida Rep. Frank Artiles (R) justified his bill, which is nearly identical to Riddle’s in the way it criminalizes transgender bathroom usage, by using the same line that a man could “choose to feel like a woman that day.” Such claims ignore that transgender people experience and identify with a consistent gender, not one that flips from day to day.
The Kentucky bill, which surprisingly advanced out of a Senate committee this week, specifically targets schools. It would allow cisgender students to sue schools that allow transgender students to use the bathrooms that match their identities. Its sponsor, Sen. E.B. Embry, Jr. (R), admitted that his primary concern is “those who cross dress but are clearly boys (or girls as the case may be),” but his bill nevertheless would target all transgender students as well. Riddle’s bill in Texas similarly includes schools among the building owners that would be criminally liable for allowing transgender bathroom access.
Despite supposed concern for the privacy of women, these bills actually threaten the safety of transgender people, who face significant levels of discrimination and harassment when trying to use the restroom. Michael Silverman, executive director of the Transgender Legal Defense & Education Fund (TLDEF), condemned the bills as “pernicious” for the risk they pose to transgender people. “Lawmakers who sponsor this kind of mean-spirited legislation purport to be looking out for public safety,” he explained. “But in reality, they are creating unsafe conditions by putting transgender people at great risk for harassment and violence.”
Wednesday, February 25, 2015
Current Laws Do Not Adequately Protect Against Lead Hazards
Most laws in place today, at the federal, state and local level, react to the dangers of lead poisoning, yet do little to prevent negative health outcomes. The majority of current laws merely require landlords to address an already existing lead problem rather than ensure tenant health before families move into an unhealthy environment. Only when an inspection report identifies a lead hazard, is the landlord served a mitigation notice and required to make repairs. To protect vulnerable tenants these policies should be amended to prevent lead exposure, instead of simply react to it.
For example, on the federal level, the Residential Lead-Based Paint Hazard Reduction Act, and the Toxic Substance Control Act address the issue of lead as a contaminant and public health threat by mandating the disclosure of the known presence of lead in a building, and regulating how the substance is monitored. However, because these policies do not require the landlord to conduct a proactive lead inspection, these laws do little to protect tenants from initial lead exposure.
Like the federal laws, state legislation is commonly reactive rather than preventative. For example, the Illinois Lead Prevention Act of 2006, allows for action after a lead harm is discovered, but does not address the issue of lead poisoning prevention. Under the Lead Poisoning Prevention Code, which implements the act, elevated blood lead levels for pregnant women and children 16 years and under are designated as 10μg/dL and for all others as 25μg/dL. Even if an individual has an elevated blood level level, an inspection by the Illinois Department of Public Health is not required unless the individual meets a separate set of standards laid out by the Lead Poisoning Prevention Code (77 Ill. Adm. Code 845.85). Laws, such as these, would be more effective if they were proactive and prevented lead exposure before harm occurred.
Lead Poisoning: A Preventable Public Health Concern
Lead poisoning is one of the most common, yet preventable, pediatric problems in the United States. Lead poisoning stunts brain and nervous system development, causing learning disabilities, behavioral problems, developmental delay, seizures, hyperactivity, and speech disorders. These conditions ultimately result in increased societal costs such as reduced academic success, juvenile delinquency, difficulty finding employment, and life-long health problems. Lead poisoning and exposure is especially dangerous for pregnant women and children, and its effects on health are irreversible.
While there are many sources of lead exposure, including gasoline and water from lead pipes, lead paint is the primary cause of lead poisoning. Alarmingly, this harmful environmental hazard is found in many homes. Although the use of lead paint was banned in 1978, it is still present in many older homes and becomes an even greater health risk with time. As paint ages, it deteriorates and flakes off, resulting in free dust particles. Ingesting or inhaling lead paint dust causes lead poisoning. For children living in houses where lead paint is present, this exposure is a serious health concern.
Lead poisoning disproportionately affects low-income and minority children. Due to the dearth of safe, decent, and affordable options, low-income and minority families are typically limited to poorly maintained housing stock, where the prevalence of lead is high. African-American and Hispanic children are three and two times more likely to experience lead poisoning than Caucasian children.
Fortunately, some jurisdictions have implemented preventative lead laws to protect tenants from the dangers of lead poisoning:
Washington, DC implemented a Rental Housing Business License Program (D.C. Mun. Regs. Tit. 14, § 200), which requires all landlords obtain a license before they can rent their properties. More importantly, if the tenant has a child in their household and the property dates before 1979, the rental property owner must obtain a clearance report from a licensed professional to determine that there is no threat of lead paint to the family.
Philadelphia, Pennsylvania created a Lead Court to specifically address non-compliance with the city’s lead remediation laws. If properties are found to be in violation of lead hazard laws, owners are required to appear in court opposite city prosecutors trained on lead hazards. Studies show that Lead Court has been successful in increasing the number of properties that are in compliance with lead laws (Campbell C., “Philadelphia’s Lead Court is Making a Difference”Journal of Health, Public Policy and Law. Duke University Press, 2013).
In Boulder, Colorado a landlord must apply for a license and have all rental 9 units inspected prior to any tenancy every four years or before new ownership (Boulder, Colo. Rev. Code of Ordinances § 10-3-2). A handful of other jurisdictions have legislation that prevents lead poisoning from homes by mandating that all properties be inspected before they are put on the rental market.
New York City has a number of policies surrounding lead safety. These include the New York City Safe Housing Act Alternative Enforcement Program , which addresses housing maintenance code violations by compelling the owner to make effective repairs or have the city government do so within four months of citation. New York City’s Lead Poisoning Prevention and Control Act requires lead inspection, disclosure to any prospective tenants, and approved remediation techniques (N.Y.C. Admin. Code § 27-2056.4).
By abating lead paint, these policies present a better way to address lead poisoning before it causes harm to tenants. As we continue to see the ripple effects of lead poisoning on low-income children and families, it is time for all jurisdictions to adopt preventative strategies to reduce the rates of lead exposure.
For more information about lead poisoning in Illinois, visit www.leadsafeillinois.org
To learn more about model healthy home policies such as these, click here.
Monday, February 23, 2015
Last Friday, Wisconsin State Senate Majority Leader Scott Fitzgerald introduced a "right to work" bill and announced he would call an extraordinary session this week to pass it. Within hours, Governor Scott Walker, who as recently as December had maintained that pushing right to work would be "a distraction" from his legislative agenda, announced that he would sign the bill.
On Saturday, Jason Stein of the Milwaukee Journal Sentinel reported that provisions of the Wisconsin draft bill are strikingly similar to the ALEC model bill on the topic. (The text of the Wisconsin bill is here, and the ALEC model is here.) Today, Stein reports that Senator Fitzgerald started drafting his bill in mid-December -- apparently despite Walker's assertion it would be a distraction -- and looked to Michigan's right to work law as a model. (24 states have enacted right to work laws.)
A long article up at Bloomberg News lays out how Governor Walker has managed to get within reach of this major legislative victory, despite -- and perhaps partly thanks to -- years of declarations that he'd never get to this point. Among other things, the article suggests Walker may have been playing a long game of "divide and conquer," as he said on video to a major donor who asked him if Wisconsin would ever become a right to work state.
Wisconsin's union leaders have called for protests at the Capitol building tomorrow and Wednesday, but some have apparently acknowledged that the bill is fated to pass. This is part because, unlike the 2011 bill that undid collective-bargaining rights for public-sector unions, the right-to-work legislation has no fiscal provisions that require a three-fifths quorum to debate and pass. In 2011, that requirement allowed Democrats to temporarily block the legislation by fleeing to Illinois.
Of course, all of this comes at the same time as a new biennial budget bill has sparked debates in Wisconsin, and Walker is receiving national attention as a serious contender as an (all-but official) candidate to be the Republican presidential nominee. Union leaders have suggested that right-to-work is being used as a distraction from the budget bill, which among other things proposes to cut $300 million in funding for the state university system.
Although achieving such policies through a "divide and conquer" strategy might help Walker maintain his current lead among the most conservative voters, it remains to be seen whether, should he ultimately become the Republican nominee, such a hard-line reputation would continue to be a benefit, or turn into a major liability.
Saturday, February 21, 2015
Thanks to the ADA Amendments Act of 2008, the ADA now protects far more people with disabilities than it once did. However, the Amendments did nothing to change the ADA’s blanket exclusion of a small subset of impairments that includes Gender Identity Disorder (GID). Those who experience clinically significant and persistent distress as a result of an incongruence between their gender identity and assigned gender at birth, and who experience discrimination on that basis, have no recourse under federal disability law. This may be about to change.
On January 20, 2015, lawyers for Kate Lynn Blatt filed a first-of-its kind equal protection challenge to the ADA’s GID exclusion. According to Blatt’s attorneys: “The Congressional Record reveals nothing more than constitutionally impermissible discrimination, devoid of any compelling, important, or legitimate governmental interest. . . . The GID exclusion in the ADA was the result of moral animus on behalf of a small group of U.S. Senators, who, in a feverish attempt to exclude the mental impairments they deemed morally unfit, unconstitutionally deprived transgender individuals of the ADA’s protection.”
Along with GID, the ADA excludes pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.
State and national LGBT rights organizations have filed an amicus brief in support of Ms. Blatt’s position:
“Federal law has an important expressive function, especially concerning the messages it sends about disadvantaged groups. The fact that Congress went out of its way to exclude GIDs, along with a variety of distinctly different conditions that the DSM classified as sexual behavior disorders and/or that the law treats as criminal or reckless, sends a strong symbolic message: transgender people have no civil rights worthy of respect. By maintaining this exclusion, the ADA perpetuates the very thing it seeks to dismantle: ‘the prejudiced attitudes or ignorance of others’ and the ‘inferior status’ that people with disabilities occupy in our society.”
Plaintiff's attorneys have notified the U.S. Attorney General of the constitutional challenge as required by the Federal Rules of Civil Procedure. The AG’s Office has 60 days to respond to the challenge, should it choose to do so. It has not done so yet.
Thursday, February 12, 2015
We invite proposals for presentations at a Spring 2016 conference, “Poverty Law: Academic Activism” to be held on Feb. 19-20, 2016, hosted by Seattle University School of Law. The conference will focus on the connection between academics and activism, broadly understood. Just as “poverty law” is a broad category that includes everything from welfare and education programs to immigration and tax policy, so too, “academic activism” includes a wide range of activities. This conference will explore how members of the legal community directly engage with activists to effect social, legal, and policy changes; how scholarship can help improve the lives of the poor; and how to educate the next generation of poverty warriors.
The conference is organized around these three tracks – direct engagement, scholarship, and teaching – and the hope that the conference will be a large gathering of those whose work (including direct involvement as well as scholarship) focuses on or relates to poverty law. The deadline for proposals is Friday, April 25, 2015. Please submit the title of your presentation with an abstract or overview of no more than 300 words to firstname.lastname@example.org. To submit a full panel presentation, include the above information for all panelists.
Additionally, for those who are interested (though this is not a requirement for participation in the conference), conference participants may have publication opportunities with both the Seattle Journal for Social Justice and the Seattle Law Review. Registration is free, but conference attendees will be responsible for their own travel expenses. We look forward to seeing you in Seattle in February 2016!
If you have any questions, please contact the conference organizers:
Seattle University School of Law
American University Washington College of Law
Thursday, February 5, 2015
The Institute on Taxation and Economic Policy (ITEP), a non-profit, non-partisan research organization that works on federal, state, and local tax policy issues, just released the 5th edition of its annual assessment of the fairness of the state and local tax systems in all 50 states. The assessment "discusses important features of each state’s tax system and includes detailed state-by-state profiles that provide essential baseline data to help lawmakers understand the effect tax reform proposals will have on constituents at all income levels."
The ITEP study concludes that "every state fails the basic test of tax fairness... In other words, every single state and local tax system is regressive and even the states that do better than others have much room for improvement."
Check out ITEP's detailed and compelling analysis here.
Sad to say that this editor of the Legislation Law Prof's blog represents the #1 most terrible state: Washington. Check on your state's status!
Tuesday, February 3, 2015
Why are the majority of federal appellate court decisions unpublished? As a law student long ago, I learned not only that unpublished decisions have no precedential value, but also that courts opt to deem a decision unpublished as a sort of accelerant-- deeming a decision as unpublished allows busy federal courts to move more quickly through their dockets-- the judges can roll up their sleeves, resolve the immediate dispute in an expeditious manner, and then wash their hands of that pesky precedential pressure.
But do courts also exploit the opportunity to dodge scrutiny on cases of great significance? New York Times writer Adam Liptak takes a peek into the baffling problem of unpublished decisions in his article below.
Courts Write Decisions That Elude Long View
Feb. 2, 2015
By ADAM LIPTAK
WASHINGTON — In April, a federal appeals court issued a 40-page decision on a serious subject, ruling that a trial judge had unlawfully increased a prison sentence out of vindictiveness.
The decision was a good example of judicial craft, closely reasoned and carefully written. The judges voted 2 to 1, suggesting that the legal question the decision resolved was a hard one.
But the decision was “unpublished,” as are 88 percent of decisions issued by federal appeals courts. That means it set no precedent. It was a ticket good for only one ride.
The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., made sure that no one missed this point. Its first word, “unpublished,” was underscored, and it bore a standard legend: “Unpublished opinions are not binding precedent in this circuit.”
Last month, the Supreme Court refused to review the ruling, over the dissenting votes of Justices Clarence Thomas and Antonin Scalia. While explaining why the court should have taken the case, Justice Thomas raised important questions about the vast subterranean body of decisions that do nothing more than resolve one dispute at a time.
“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”
He accused the Fourth Circuit of violating its own standards by refusing to publish the decision. He also suggested that the appeals court had acted strategically to avoid review of its ruling.
Supreme Court justices have long been wary of unpublished decisions for that reason. “Nonpublication must not be a convenient means to prevent review,” Justice Harry A. Blackmun wrote in a 1991 dissent joined by Justices Sandra Day O’Connor and David H. Souter.
In a 2006 interview, Justice John Paul Stevens said he was more likely to vote to grant review of such rulings “on the theory that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify.”
These days, technology has turned the term “unpublished” into a misnomer. With the availability of legal databases and websites for courts, almost every decision issued by an appeals court is instantly available. And, because of a 2006 amendment to the federal rules of appellate procedure, lawyers are free to cite unpublished opinions issued after Jan. 1, 2007.
But without the force of precedent to require courts to rule similarly the next time around, these decisions create a sort of lawlessness, Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit wrote in 2000. “We may have decided this question the opposite way yesterday,” he wrote, “but this does not bind us today.”
Judges say that unpublished decisions are a sensible reaction to a crush of work.
“We simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” Judge Alex Kozinski of the Ninth Circuit explained in 2004. “In other words, we can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases.”
Erica J. Hashimoto, a law professor at the University of Georgia and a lawyer for the prisoner in the recent case, Plumley v. Austin, No. 14-271, said “requiring courts to author binding precedent in every case is simply unworkable.”
The Fourth Circuit, for instance, decided about 4,000 cases in a recent 12-month period, or 267 for each of its 15 active judges.
“Because published opinions create binding precedent for all other cases considered by that court, those opinions, unless crafted with the utmost care and precision, can have significant unintended consequences for all sorts of other cases,” Professor Hashimoto said. “Anticipating those consequences requires an incredible investment of time.”
“The premise that judges can and should make this determination at the moment a ruling is made, and without the benefit of input from others, is seriously flawed,” he wrote.
In a 1977 speech, Justice Stevens said the approach rested on “a false premise,” specifically “that an author is a reliable judge of the quality and importance of his own work product.”
David R. Cleveland, a law professor at Valparaiso University in Indiana who has written extensively on unpublished opinions, said that Justice Thomas’s recent criticism was characteristic of the Supreme Court’s fitful attention to the issue.
“Individual justices have expressed dissatisfaction with the system and individual instances of it,” Professor Cleveland said, “and they should be commended for spotting the problem and speaking out against its harm to appellate justice.”
In a 2009 article in the Marquette Law Review, he calculated that litigants had asked the Supreme Court to consider the “constitutionality or propriety” of designating an opinion as unpublished in at least 36 petitions seeking review. But the court has never ruled on the issue.
“Rather than occasionally expressing disapproval of an individual symptom of the problem,” Professor Cleveland said, “the court should consider addressing the underlying illness.”
Friday, January 30, 2015
Supreme Court Halts Missouri Execution, Then Reverses Eighth Circuit, Sending Case Back for Conflict-Free Counsel to Litigate Equitable Tolling of Blown Statute of Limitations
We are thrilled to welcome guest bloggers, Jennifer Merrigan and Joseph Perkovich, who worked with Saint Louis University School of Law students to halt Mark Christeson’s execution and reverse a lower court decision, exercising the federal statutory right to counsel for individuals sentenced to death by a state court. Ms. Merrigan and Mr. Perkovich, along with John R. Mills, are Mark Christeson's pro bono counsel and the principal attorneys of the Phillips Black Project, a nonprofit, public interest law practice focused on death penalty representation. Phillips Black’s attorneys founded and direct the Death Penalty Proportionality Project at the Saint Louis University School of Law. The Death Penalty Proportionality Project provides law students the opportunity to provide legal representation to individuals sentenced to death and allows them to contribute to research on Missouri’s death penalty statute.
On January 22, the U.S. Supreme Court, by a vote of 7 to 2, decided Christeson v. Roper, 574 U.S. ___ (2014), 2015 WL 232187, summarily reversing the judgment of the Eighth Circuit Court of Appeals and returning Mark Christeson’s death penalty habeas corpus case to the lower federal courts for further proceedings. The Western District of Missouri and the Court of Appeals had contravened the high Court’s decision in Martel v. Clair, 565 U.S. __, 132 S.Ct. 1276 (2012), where it established the “interests of justice” standard applicable to the federal statutory right to counsel for individuals sentenced to death. 18 U.S.C. §3599. Clair held that the interests of justice shall determine motions to substitute appointed counsel pursuant to §3599(e), which “contemplates that a court may ‘replace’ appointed counsel with ‘similarly qualified counsel . . . upon motion’ of the petitioner.” Christeson, (slip op., at 4). On October 28, 2014 the Court had stayed Mr. Christeson’s scheduled execution in order to consider his certiorari petition.
The need for Mr. Christeson’s substitution of his court-appointed counsel emanated from their violation, in 2005, of his 1-year federal habeas corpus statute of limitations under 28 U.S.C. §2254 (Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). The court-appointed attorneys “failed to meet with Christeson until more than six weeks after his petition was due” and ultimately filed a cursory petition “117 days too late.” (Slip op., at 2). As the high Court noted, leading legal ethicist Lawrence Fox of the Ethics Bureau at the Yale Law School had reported to the district court that “if this was not abandonment, I am not sure what would be.” (Slip op., id). Over seven years ago, this error ended Christeson’s federal case in the Eighth Circuit without any substantive review of the constitutional violations in his 1999 trial in Missouri state court.
In April 2014, his federal court-appointed lawyers reached out for advice from the authors of this post, Jennifer Merrigan and Joseph Perkovich, after receiving an order from the Missouri Supreme Court to show cause why their client’s execution date should not be set. But, when the authors met Mr. Christeson, it was clear that he did not understand that his appointed lawyers had blown his federal statute of limitations. As the Supreme Court noted, Mr. Christeson “appears to have severe cognitive disabilities that lead him to rely entirely on his attorneys.” A Rule 60(b) motion to re-open his case in order to litigate equitable tolling of the missed statute of limitations would be the only way to obtain any federal review of the constitutional violations in his trial and appeal.
Noting that the court-appointed attorneys were “initially receptive to . . . assistance,” the high Court found that they “soon refused to allow outside counsel access to their files,” eventually precipitating the authors to file a pro bono motion for substitution of counsel to protect his interests. While Mr. Christeson’s pro bono counsel were litigating his statutory right to appointed counsel, the Missouri Supreme Court scheduled his execution. Overall, the federal district court twice denied motions for substitution and the court of appeals twice rejected appeals before the case was able to make its way into the U.S. Supreme Court via an application for a stay of execution pending disposition of the cert. petition, which was filed with the support of amicus briefing from Former State and Federal Judges by Goldstein & Russell, P.C. and Legal Ethicists and Capital Habeas Practitioners by the Yale Ethics Bureau.
Capital warrant litigation is complex and enormously time consuming. In Mr. Christeson's case it was especially difficult, as counsel were litigating with no resources and no case file after having been on the case for mere months. As adjunct clinical professors at the Saint Louis University School of Law, the authors enlisted clinical students, Aly Ricci and Kristin Swain, to assist with research, record review, and witness interviews. The support of SLU's clinical program, especially by the Supervisor of the Criminal Defense Clinic Susan McGraugh, and Dean Michael Wolff were instrumental in the around-the-clock litigation.
On October 28, roughly twelve hours before Mr. Christeson’s scheduled execution at 12:01 a.m. CDT, Justice Alito, in his capacity as the circuit justice for the Eighth Circuit, took perhaps the unprecedented step in Supreme Court history of ordering supplemental briefing in relation to an application for a stay of execution. The order called for the parties to brief “whether the record shows” that Mr. Christeson authorized pro bono counsel to seek substitution as his attorneys. About two hours later, the parties filed their briefs, wherein pro bono counsel, after obtaining over the phone a release from Mr. Christeson in order to file attorney-client privileged communications, lodged with the Court briefing and, pursuant to Rule 32.3, documentation manifesting his retention of the pro bono attorneys months earlier and correspondence, typed by a fellow inmate working in the law library, expressing his desire to have his appointed lawyers replaced because they did not have his “best interest in mind.” Just two hours before he was scheduled to be executed at midnight, the U.S. Supreme Court granted Mr. Christeson a stay pending the determination of his certiorari petition. After six relistings, the Court entered its opinion simultaneously granting certiorari and reversing the Eighth Circuit.
Christeson found that the Court of Appeals’ “principal error was its failure to acknowledge [the court-appointed lawyers’] conflict of interest. Tolling based on counsel’s failure to satisfy AEDPA’s statute of limitations is available only for ‘serious instances of attorney misconduct.’” (Slip op., at 5), quoting Holland v. Florida, 560 U.S. 631, 651-652 (2010). The “serious instances of attorney misconduct” here regarded their abandonment of Mr. Christeson at the critical juncture in his federal case, namely when they needed to file a habeas petition within the 1-year limitations period. Justice Alito dissented, joined by Justice Thomas, acknowledging the “serious” error by the court-appointed attorneys and opining that full briefing and argument should have been ordered. (Slip op., dissenting opinion at 2-3).
Already, the Court's ruling has provided the basis for a remand in another capital case. On January 27, a panel of the Fifth Circuit Court of Appeals, “[i]n light of the Supreme Court’s decision in Christeson . . .,” sua sponte vacated in part its previous opinion denying a Certificate of Appealability under 28 U.S.C. §2553 of the denial of a federal habeas petition. Tabler v. Stephens, No. 12-70013 (unpub.), 2015 WL 327646. Tabler extends to ineffective assistance of federal habeas counsel the equitable rule in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), that the inadequate assistance of state habeas counsel “may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” The Fifth Circuit panel relied on Christeson to explain that “[b]ecause Tabler’s attorneys for his state habeas proceedings were also his attorneys for his federal habeas proceedings, they faced a conflict of interest that could have prevented them from arguing that their performance in Tabler’s competency hearing was deficient, and, accordingly, Tabler’s statutory right to counsel was violated.”
As for Mark Christeson’s case, the next step is for it to return on remand to the Eighth Circuit. In the meantime, the authors and their clinical students continue to work on his behalf.
Thursday, January 29, 2015
Recently, there has been a lot of press surrounding increases in hirings and gains in hourly wages, but this overlooks the millions of people that continue to struggle to make ends meet. For some of those individuals, the struggle to get basic necessities is about to get worse.
Over the course of 2015, hundreds of thousands of vulnerable Americans will be at risk of losing necessary food assistance benefits, or "Food Stamps," through the Supplemental Nutrition Assistance Program (SNAP) that, until now, has helped put food on their tables. As unemployment rates fall, around 1 million single adults will become ineligible to receive SNAP benefits due to a three-month time limit for unemployed, able-bodied adults without dependents (ABAWDs).
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 limits SNAP benefits to just three months in a three-year time period for ABAWDs who are not working or participating in a workfare program for at least 20 hours a week. The provision includes a clause that allows states with sustained high unemployment rates to apply for a 12-month ABAWD waiver that suspends the three-month limit. Because of the poor economic climate, in recent years, many states have received ABAWD waivers, eliminating the time limit for the ABAWD population. Current waivers will expire at the end of this fiscal year and will need to be renewed for FY2016. However, as unemployment rates fall, very few states will qualify for this waiver.
Although unemployment rates are declining, many ABAWDs are still struggling to find full-time employment due to lower education levels and limited job opportunities. While states can cut off SNAP benefits for unemployed ABAWDs after three months, according to the provisions in The Farm Bill of 2002, states are not required to fund employment and training programs for ABAWDs. In other words, states can remove unemployed ABAWDs from the SNAP rolls without making an effort to find them a position in a work or training program for 20 hours a week. In fact, most states do not offer these programs, meaning that the responsibility to search for a job or a work/training program falls on the individual, which can be very difficult as workfare programs have limited resources and openings.
Even those who are actively seeking work and are willing to accept any position offered will still be cut off from SNAP benefits and will not be provided with support to find employment. According to US Department of Agriculture, individuals who will be subject to the three-month time limit have an average monthly income of 19 percent of the poverty line (or 81% below the poverty line), making them one of the most vulnerable groups in the country. Because this population is able-bodied and without dependents, it is unlikely for them to qualify for other benefits.
Not only do SNAP benefits put food on the tables of millions of hungry Americans, but food assistance has also stimulated the economy and served as a lifeline for entire towns. For example, in Woonsocket, Rhode Island almost $2 million of SNAP funding pours into the town each month, stimulating the city’s food industry and starting the monthly “boom-and-bust” cycle of the nearly bankrupt town. For more information, see this article in the Washington Post.
To learn more about the relationship between poverty and food insecurity from Feeding America’s Poverty and Food Insecurity Fact Sheet click here. For statistics and infographics on food insecurity from the USDA Economic Research Service click here.
For more information about which state’s have accepted the waiver for FY2015, click here.
Monday, January 26, 2015
Nearly 50 years after the passage of the 1968 Fair Housing Act, in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project the Supreme Court recently addressed the interpretation of this law and whether the law allows for disparate-impact claims. The purpose of the 1968 Fair Housing Act was to eliminate overt racial discrimination in housing by making it illegal to “refuse to sell or rent . . . or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race.” The question at hand in last week’s case is fundamental to the interpretation and enforcement of a law meant to tackle discriminatory housing policies: Are practices and policies that are not intentionally discriminatory, but nonetheless have a discriminatory effect on certain populations, in violation of the law?
In 1988, Congress made amendments to the Fair Housing Act of 1968 but did not write discriminatory effect claims out of its scope. Despite this, and the fact that 11 federal appeals courts have found that the Fair Housing Act provides for disparate-impact claims, this case marks the third time that the Supreme Court under Chief Justice Roberts has heard a disparate-impact fair housing case. Housing advocates and civil rights groups are concerned about the potential effects of limiting the interpretation of this law in a time when it is harder to identify exclusionary housing practices as such.
In the case, the plaintiff, Inclusive Communities Project, is a Dallas based non-profit organization whose mission includes creating and supporting racially and socioeconomically integrated communities. Their role includes assisting people who receive housing subsidies find affordable housing. In 2008, they filed a lawsuit, in which they argued that the state’s allocation of low-income housing tax credits were distributed in a manner that did not make housing subsidies available in communities with more access to opportunities (like better schools systems and lower poverty rates) and that this was a violation of the Fair Housing Act. The defendants, the Texas Department of Housing and Community Affairs, argued that the law only applies to intentional discrimination and does not account for disparate-impact claims. Further, they claimed that extending its reach would force insurers, developers, and lenders into situations where they would need to make race-based decisions in order to make quotas.
Senator Warren's op-ed in WashPo from Saturday discusses the effect of the case on segregation and economic growth for communities of color.
Friday, January 9, 2015
On May 2, 2013, Governor Martin O’Malley signed a death penalty repeal bill that abolished the death penalty for future crimes, leaving Maryland’s death row intact. Maryland is not alone in its prospective abolition of the death penalty. New Mexico abolished prospectively in 2009, leaving 2 inmates on death row, and Connecticut followed suit in 2012, leaving 11 inmates on death row. Prospective bills are pending in a number of other states, including Delaware, Kansas, Colorado, Washington, and New Hampshire.
One might call this legislative trend “gradual abolition.” For the first time in nearly 100 years, abolition is proceeding inmate-by-inmate. Abolition will be achieved in states like New Mexico and Connecticut when the last death row inmate in each state dies or is released from death row, or when the executive or judiciary intervenes.
Which brings us back to Maryland. On December 31, 2014, Governor O’Malley announced his intention to end Maryland’s death penalty completely by commuting the death sentences of Maryland’s 4 remaining death row inmates. Legal challenges to prospective death penalty repeal are pending in Connecticut’s and New Mexico’s high courts, but they will probably fail, for reasons discussed here and here. Although New Mexico’s and Connecticut’s legislatures almost certainly have the constitutional authority to abolish the death penalty for future crimes only, there is no record of a death row prisoner ever being executed after prospective repeal of the death penalty. This means that, if a governor or administrative board were to permit a prisoner to be executed after prospective repeal, it would be the first to do so in all of history—a dubious distinction if ever there was one.
New Mexico’s governor and Connecticut’s Board of Pardons and Paroles should take a page from Governor O’Malley’s playbook and end their death penalties completely. And state legislatures considering prospective death penalty repeal should reconsider, and make their repeals retroactive. Abolition for all—not some.
Wednesday, December 17, 2014
In the most significant change in US policy toward Cuba since the 1960s, President Obama and Raul Castro spoke Tuesday (the first direct communication between a US and Cuban leader since 1961) about normalizing relations. This announcement follows a series of diplomatic moves to improve the relationship between the two counties, including Cuba’s release of American Alan Gross the US’s freeing of three incarcerated Cubans.
The Obama administration also announced that it plans to re-open the US embassy in Havana and ease restrictions on travel and commerce between the two counties.
Obama’s actions to improve diplomacy between the two counties follow what he called an “outdated approach” to Cuba. “Isolation has not worked. . . It’s time for a new approach.” The administration’s plan is to promote reform in Cuba through engagement, rather than isolation.
Monday, December 15, 2014
The National Law Center on Homelessness and Poverty (NLCHP) recently released its Housing Report Card, giving the United States a failing grade. NLCHP’s report card examines the current level of US compliance with the human right to housing in the context of American homelessness. Specifically, NLCHP assesses steps taken by the federal government to end and prevent homelessness, as well as relevant state and local policies.
Read the full report for detailed information about each category and grade.
Friday, December 12, 2014
Under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, the FBI began collecting data on hate crimes committed on the basis of gender identity last year. The FBI presented that data for the first time in this year’s annual Hate Crimes Statistics for 2013 report. Its findings are underwhelming: for 2013, the FBI reported only 31 hate crimes based on gender identity.
According to the Human Right Campaign, the FBI data “does not paint a complete picture of hate crimes against LGBT Americans because of two significant factors. First, under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, the FBI only began collecting data on hate crimes committed on the basis of gender identity last year and were reported for the first time in this year’s report. HRC remains concerned that the low number of responses for hate crimes based on gender identity and gender non-conformity -- 31 incidents -- suggests that law enforcement are mischaracterizing hate based crimes as ones based on either sexual orientation or gender. Second, current statistics only provide a partial snapshot of hate crimes in America. As in past years, the vast majority of the participating agencies (88%) reported zero hate crimes. This means that law enforcement in those participating agencies affirmatively reported to the FBI that no hate crime incidents occurred in their jurisdiction.”
In its report on hate violence in 2013, the National Coalition of Anti-Violence Programs reported “twelve hate motivated homicides of transgender women of color in 2013, many of them occurring through the months of June through September,” and over 300 incidents of anti-transgender bias.
For a thoughtful and moving discussion of the intersection between violence, race, and gender identity, and a way forward, check out this brief talk by transgender activist, Laverne Cox. Highly recommended.
Tuesday, December 2, 2014
Sunday, November 30, 2014
Our friends at Bar-Ilan University in Israel wish to announce the upcoming international conference on Legisprudence and Legislative Process: From Theory to Practice, which will be held at Bar-Ilan University in Israel on December 6-7, 2014. A brief description of the conference, as well as a link to the conference program, follows:
In recent years, there has been growing literature describing a "crying need" for improvement in the legislative process of legislatures across a wide range of legal systems. At the same time, there has been great development of a separate body of legisprudence scholarship dedicated to developing the concept of "quality of legislation" and ways to improve this quality. Bringing together leading legislation scholars and practitioners from Europe, the U.S. and Israel, this international conference aims to integrate theoretical insights with cross-national practical experience in exploring ways to improve the legislative process. The conference will cover such issues as minorities' legislative power; improving the effectiveness and efficacy of the legislative process; improving the accessibility of legislation; lobbying reform; the role of impact assessment in the legislative process; the role of legislative counsels; and the role of courts in improving the legislative process. The conference, co-organized by Bar-Ilan University Faculty of Law and the Knesset Legal Department, will take place in Israel on December 10-11, 2014.
Monday, November 24, 2014
Marcy Karin runs the Work-Life Law and Policy Clinic at ASU’s Sandra Day O’Connor College of Law. The Work-Life Clinic is an integrated law clinic that works on administrative litigation, legislative and regulatory advocacy, and community education efforts on employment law and policy issues for low-income individuals and nonprofit organizations working on their behalf. This work includes cases and projects related to unemployment insurance, reasonable accommodations for people with disabilities, time off, flexible scheduling, unpaid wages, discrimination, reentry, and civil justice for military families.
Over the summer, the ABA changed the definition of what constitutes a clinic when it published Revised Standards for law school accreditation. Specifically, Standard 304 now reads:
Simulation Courses and Law Clinics
(b) a law clinic provides substantial lawyering experience that (1) involves one or more actual clients, and (2) includes the following: (i) advising or representing a client; (ii) direct supervision of the student’s performance by a faculty member; (iii) opportunities for performance, feedback from a faculty member, and self-evaluation; and (iv) a classroom instructional component.
This new rule explicitly requires at least one “actual client” for a course to be considered a clinic. This may have (presumably unintended) consequences for programs that include policy advocacy, community lawyering, or other types of experiential training that may not include client representation, but otherwise meet the ABA’s requirements.
For example, some excellent clinics train students by taking matters and projects on behalf of causes, rather than clients. Among other things, clinics have testified as experts in front of federal, state, local, and tribal legislatures; submitted comments to rulemaking as part of the regulated community; and worked as part of loose coalitions of people in community negotiations or mobilizations. As Kevin Barry and I have written about in the past, this type of cause lawyering is a critical component in training students to meet the standards set forth in paragraph 6 of the Preamble to the ABA Model Rules of Professional Conduct, which states that all lawyers “should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.”
In striving to meet this ethical standard and fulfill a critical need for lawyering services in different communities, a growing number of faculty have incorporated non-client work into clinic dockets. In addition to law reform, some clinics regularly work in conjunction with partner organizations to offer walk-in legal clinics. These type of drop-in events are usually undertaken without any expectation of entering into a lawyer-client relationship with event partners or the members of the public that attend these sessions for counseling services. Other clinics focus on public education either by participating in “know your rights” workshops, by teaching high school students about the law, or by highlighting a problem that had previously remained in the shadows. Some clinics do this by documenting human rights violations, working on grassroots media campaigns, issuing educational white papers, or volunteering to answer voter questions about how to exercise their rights on election day.
Of course, even litigation-focused clinics may work without clients. Clinics have been asked to serve as amicus by courts on issues within their substantive areas of expertise, train judicial personnel, advocate for best practices or changes in existing judicial procedures or any number of other litigation orientated, but non-client projects.
Many (but not all) of the clinics that participate in these activities are integrated law clinics, which means they likely also have at least “one client” on a docket at any given time. Given this, they would still qualify as a clinic. Nonetheless, the new clinic definition remains problematic: neither the ABA nor the academy should be sending the message that this type of work is not important in my opinion. Nor that this work is not as important as lawyering work performed on behalf of a client. Rather, law schools should have the discretion to offer “clinics” with substantial lawyering opportunities that educate the community about the law, identify problems with it, and/or address how best to reform it.
For the past few months, my colleague Art Hinshaw and I have been having an internal discussion about the potential unintended consequences that this revised standard may have on our clinics. In this September post on the ADR Prof Blog, Art took our conversation public and asked whether this interpretation would be the death knell for mediation clinics like his, where students do not have clients but rather serve as mediators at the behest of our local courts.
His post spurred the mediation community into action, and he is now the co-chair of an ABA Dispute Resolution Section Task Force created specifically to address this issue. To start off their conversations, he has suggested the following revised language for 304(b) to the Task Force:
A law clinic provides a substantial lawyering experience that (1) involves acting in a problem solving role, and (2) includes the following:
- Any of these lawyering activities:
- Advising or representing a client, OR
- Acting as a third party neutral in a dispute involving live disputants, OR
- Direct supervision of the student’s performance by a faculty member
- Opportunities for performance, feedback from a faculty member, and self-evaluation, and
- A classroom instructional component
With this post, I hope to galvanize more clinicians to join the conversation. There is no way that this new definition will be the death of cause lawyering or community education in law school clinics. That said, ABA Standards should reflect the reality that many clinics undertake important non-client based lawyering work and training. The new standards became operational on August 12, 2014, and Standard 304 must be phased in to apply to students who are 1Ls in Fall 2016. This gives us a window of opportunity to help our mediation colleagues improve this new standard.
Given this, what else should be included in the list of proposed lawyering activities? Educating the community about legal rights or processes? Responding to requests for technical assistance from the government? How can we best reflect the diversity in our community with respect to clinic structures and learning opportunities? Share your ideas in the comments!
Two Princeton researchers, Martin Gilens and Benjamin Page, recently released a study, arguing that America's political system has changed from a democracy into an oligarchy controlled by the wealthy and privileged. "The central point that emerges from our research is that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy," they write, "while mass-based interest groups and average citizens have little or no independent influence." An article on the Princeton report is available here.
What do you think? Sound off to the Legislation Law Prof Blog editors!