Tuesday, September 30, 2014

"Racial Classification and Ascriptive Injury"

The title of this post comes from this intriguing new paper by Professor Paul Gowder, the abstract of which states:

This paper describes a new model of the relationship between racial ascriptions on an individual level, private racial bias, social disadvantage, and state action, called the cognitive hierarchical model. As the name suggests, it deploys psychological, sociological, and historical evidence to argue that racial hierarchy in the wider culture leaks into our individual cognitions, and vice versa. Status evaluations turn out to be built deep into our racial perceptions. 

The state, for its part, exercises a continuing influence on that culture and the cognitions it generates; this gives rise to new grounds for constitutional challenge to state complicity in racial hierarchy. To be ascribed a stigmatized racial identity is to be subject to continuing harm, which this paper calls ascriptive injury. This paper ultimately argues that the state, by participating in the continual creation and reinscription of stigmatized racial identities, causes such ascriptive injuries, and argues for a constitutional remedy.

September 30, 2014 | Permalink | Comments (0)

ICYMI: George Zimmerman allegedly threatened to kill another driver while stopped at a traffic light, then followed him for two days

Really. In a road rage incident.

Indeed, George appears to have anger issues, which have substantially sidetracked his brother's dream of his becoming the next Kim Kardashian.

September 30, 2014 in Current Affairs | Permalink | Comments (0)

"Voting Issues Going to the Voters"

At the National Conference of State Legislatures blog, Wendy Underhill breaks down the election laws that will appear on state ballots this November. 

September 30, 2014 in Election Law | Permalink | Comments (0)

"Inter-American Commission on Human Rights Announces Hearing on Texas Extreme Prison Heat"

The title of this post comes from this press release from the University of Texas School of Law's Human Rights Clinic announcing the October 27, 2014 hearing before the Inter-American Comission on Human Rights in Washington D.C. on the extreme heat inside Texas prisons.

Earlier this year, the Texas Civil Rights Project filed a lawsuit against the Texas Department of Criminal Justice (DCJ) on behalf of prisoners in Texas claiming that temperatures inside the state's prisons violate the prisoners' Eighth Amendment rights. CNN's Emma Lacy-Bordeaux reported at the time:

The lawsuit, broadly concerned about the lack of air conditioning across state facilities, centers on a facility in Navasota, Texas, known as the Wallace Pack Unit. Located about 70 miles northwest of Houston, the facility houses about 1,400 men. As of January, the compliant said, 114 men over the age of 70 were housed there. They have no air conditioning, and the windows which do open provide little relief, the suit claims, leading to temperatures inside that often exceed those outside.




The lawsuit alleges some 20 deaths since 1998 and details names, ages and internal body temperatures of the victims, including cases where the body temperature recorded was well over 100 degrees. One man, 45-year-old Rodney Adams, died one day after his arrival. His internal temperature registered 109.9.

Indeed, temperatures in Texas prisons often exceeded 100 degrees, a condition that affects prison staff as well as inmates. Exposure to such extreme temperatures can be particularly dangerous for elderly imates and those with specific health conditions. As NPR's Alisa Roth stated:

[T]he number of inmates prone to this sensitivity has been growing; the elderly prison population has been increasing for years, and people with mental illness make up a disproportionate percentage of inmates in the U.S.

And at least 14 prisoners reportedly have died because of heat related illnesses since 2007.

The DCJ's efforts to alleviate the effects of the heat have been few. It has added a few large fans to several of its prisons, but it doesn't appear to have otherwise substantively addressed the issue. The New York Times's Manny Fernandez reported:

A Texas law requires county jails to maintain temperature levels between 65 and 85 degrees, but the law does not apply to state prisons. The American Correctional Association recommends that temperature and humidity be mechanically raised or lowered to acceptable levels. 




A prison agency spokesman, Jason Clark, said that many prison units were built before air-conditioning was commonly installed, and that many others built later in the 1980s and 1990s did not include air-conditioning because of the additional construction, maintenance and utility costs. Retrofitting prisons with air-conditioning would be extremely expensive, he said.


As a result, the agency takes a number of steps to assist inmates, Mr. Clark said, and he disputed the criticisms of inmates and their lawyers about inadequate fans, water and ventilation. On hot summer days, he said, prison officials restrict outside activity, provide frequent water breaks, allow additional showers, permit inmates to wear shorts and increase airflow by using blowers normally used to move warm air in the winter.

(h/t Grits for Breakfast)

September 30, 2014 in Prisons and Prisoners | Permalink | Comments (0)

Monday, September 29, 2014

Woman claims her removal from town council meeting violated her First Amendment speech rights.

Jennifer Jones publishes a newspaper, has run for state office, and just loves dogs. For fun, she likes to sue officials of the town in which she lives - Quartsite, Arizona. She's a troublemaker, but her latest legal foray might actually have some merit. As The Courthouse News Service reports:

Known for its huge outdoor swap meets and gem shows, and as a haven for "snowbirds" in motor homes, the Sonoran desert town of about 3,500 residents entices some 2 million visitors every winter, when the summer's triple-digit temperatures dip down to the 70s.


The crowds were long gone at a town council meeting in June 2011 when Jones received a nod from Mayor Ed Foster to speak during the public-comment portion. About a minute into her criticism of the board, then-councilman Joe Winslow interrupted and made an oral motion to have her ejected for an "unidentified procedural violation." Claiming that a majority of council members supported the motion, Winslow told Jones to leave or be escorted out by police.


Jones said then-Police Chief Jeffrey Gilbert and police officers Fabiola Garcia and Rick Paterson moved toward her, grabbed the microphone out of her hand and forcibly ejected her from the meeting. She was then arrested for disorderly conduct but the charges were later dropped.


Jones sued Quartzsite, Winslow, Gilbert, Garcia, Paterson and others in 2012, but U.S. District Judge James Teilborg ruled found Wednesday that only her First Amendment claim will go forward.


"Even if defendants acted solely to cure plaintiff's unidentified procedural violation, defendants' actions may have run afoul of applicable law because plaintiff alleges that she was speaking peacefully about a matter of town-importance after being duly recognized to speak by the moderator of the meeting," Teilborg wrote.

September 29, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (0)

Ferguson police officers seen wearing 'I am Darren Wilson' wristbands in show of solidarity with officer who killed 18-year-old Michael Brown

"L.A. wants court to revive law allowing motel guest registry searches"

Interesting article by The Los Angeles Times's David Savage (again) for Fourth Amendment junkies.

September 29, 2014 | Permalink | Comments (0)

Everybody's ready for SCOTUS to review same-sex marriage

David Savage reported in today's Los Angeles Times:

The justices will meet Monday to consider a thick pile of pending appeals, and they have before them gay-marriage cases from five states. In all five, the ban on same-sex marriages was struck down. But unlike most appeals, both sides — the winners as well as the losers — are asking justices to hear the case.


"It's a near certainty the court will decide it this term and definitively answer" whether same-sex marriage is a constitutional right, said Irv Gornstein, a law professor who directs Georgetown's Supreme Court Institute.


Gay-rights advocates who once steered clear of the high court are now eager for a ruling. "There is no question we are winning, but winning is not won," said Evan Wolfson, founder of Freedom to Marry. "It's time for the Supreme Court to finish the job."


First, the justices have to settle on which case, or cases, they will hear, and that may take a few weeks. They could hear cases from Utah, Oklahoma, Virginia, Wisconsin or Indiana. In all but Virginia, the state's top lawyers are fighting to uphold laws banning same-sex marriage.




But state attorneys in four Republican-led states say they are determined to offer the Supreme Court a robust defense of their state laws. They noted that their voters, as well as their lawmakers, had adopted measures in the last decade to define marriage as the union of a man and a woman. They sought to prevent "judicial activism" by defining marriage in the state constitution, said Wisconsin Atty. Gen. J.B. Van Hollen, in a court filing.

September 29, 2014 in Same-sex marriage | Permalink | Comments (0)

Survey finds Americans now believe criminal justice system discriminates against blacks, Latinos

At least according to one survey. BuzzFeed's Adam Serwer reports:

A slim majority of whites, 51%, now said they believe the criminal justice system is biased — a smaller percentage than blacks (84%) and Latinos (60%) who said it is, according to the survey.


Majorities identifying as Republicans, tea party members, and and the elderly said they see the criminal justice system as fair, according to the survey. Fifty-seven percent of Republicans and 58% of tea party members said they believe the criminal justice system does not discriminate on the basis of race.


Perceptions about the criminal justice system aside, however, Americans’ perceptions of race and discrimination more broadly break down along racial lines. About as many white Americans who said they think the criminal justice system is racially biased against minorities also believe that anti-white discrimination is as big a problem as discrimination against minorities.


Fifty-two percent of white Americans believe that “discrimination against white Americans has become as big a problem as discrimination against black Americans and other minorities, compared to 35% of Hispanics and 29% of black Americans,” according to the survey. Sixty-one percent of Republicans and 73% of tea party members said discrimination against whites is as big a problem as discrimination against blacks — compared to only 32% of Democrats and 47% of Independents.

September 29, 2014 in Current Affairs | Permalink | Comments (0)

Thursday, September 25, 2014

"Making a Home for the Homeless in Hate Crime Legislation"

The title of this post comes from this intriguing paper by Professor Mohamed al-Hakim, the abstract of which states:

Several jurisdictions in the United States (e.g., Florida and Washington) have recently incorporated the status of “homeless” under the protection of hate crime legislation. This was largely promoted by new data and reports by the National Coalition for the Homeless urging added protection for the homeless. The issue of whether the homeless belong under hate crime provisions raises the following question: What criteria must a group meet to be eligible for its inclusion? What similarities do the homeless have with other protected groups? Finally, what implications does the recognition of economic status have on other economic groups, particularity the top wealthy 1%? In this article, I explore some of the issues raised by including the homeless as a protected group. I survey several rationales offered for the selection of protected characteristics. I argue that the rationales currently offered suffer from descriptive inadequacy by either being under- or over-inclusive. I turn instead to the political conception of “disadvantage” for an identity marker that better explains the link between the various protected groups and identities under hate crime legislation. Moreover, the use of disadvantage allows for the inclusion of the homeless without the need for incorporating other socio-economic identities.

September 25, 2014 in First Amendment, Theories of Punishment | Permalink | Comments (1)

Holder expected to announce resignation

The Legal Times's Mike Scarcella:

Eric Holder Jr. is expected today to announce his resignation from the U.S. Department of Justice, where he has served since 2009 as the country's first African American attorney general, the White House said. The president is set to speak this afternoon about Holder's resignation.


Holder has long said he did not intend to serve the entirety of President Barack Obama's second term in the White House. Holder in 2012 said "it's been an interesting and tough four years" and that he would ask himself "Do I think that there are things that I still want to do. Do I have gas left in the tank?" NPR first reported the news of Holder's resignation.

September 25, 2014 | Permalink | Comments (0)

"Following the Script: Narratives of Suspicion in Terry Stops in Street Policing"

The title of this post comes from this recent paper by Professors Jeffrey Fagan and Amanda Geller. The abstract states:

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the legality of the Stop and Frisk policing regime in New York. Under this regime, police record the bases of suspicion using both a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion.

Evidence from 4.4 million stops provide an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops and identify narratives of suspicion that justify their actions beyond the idiosyncrasies of the individual case. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in caselaw governing Fourth Amendment stops.

September 25, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Wednesday, September 24, 2014

On average, least educated white families still wealthier than most educated black and hispanic families

Demos's Matt Bruenig breaks down the numbers:

[W]hite families are much wealthier than black and hispanic families at every education level. More than that, all white families, even those at the lowest education level, have a higher median wealth than all black and hispanic families, even those at the highest education level. The median white family with an education level below high school has a net worth of $51.3k, while the median black and hispanic family with a college degree has a net worth of $25.9k and $41k respectively.

September 24, 2014 | Permalink | Comments (0)

Will CA voters get another crack at marijuana legalization in 2016?

The Marijuana Policy Project hopes so, reports Reuters. Although Californians rejected legalization in 2010, recent polls suggest another vote might turn out differently.

September 24, 2014 | Permalink | Comments (0)

"Digital Security in the Expository Society: Spectacle, Surveillance, and Exhibition in the Neoliberal Age of Big Data"

The title of this post comes from this paper by Professor Bernard Harcourt, the abstract of which states:

In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. We have here a completely different structure where men who are placed next to each other on a flat surface will be surveilled from above by someone who will become a kind of universal eye.” 

What should we make of those archetypes today? Do they help us better understand our neoliberal digital condition of data collection, mining, and profiling by corporate giants such as Google and Facebook, and the NSA? With neoliberalism and digitization — in the age of digital security — I suggest, we have gone beyond both spectacle and surveillance to a new form: one that is captured best by the idea of exposition or exhibition. Guy Debord spoke of “the society of the spectacle,” Foucault drew our attention instead to “the punitive society,” but it seems as if, today, we live in the expository society. This essay offers an architectural schema to better understand our contemporary distributions of power, one that focuses on the themed space of consumption. It then actualizes the metaphor by exploring one particular manifestation of a fully-digitized themed space, and asks how we have come to embrace and love these new forms of exhibition today.

September 24, 2014 in Fourth Amendment, Web/Tech | Permalink | Comments (0)

Monday, September 22, 2014

"Two More Ways Not to Think About Privacy and the Fourth Amendment"

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

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

September 22, 2014 in Fourth Amendment | Permalink | Comments (0)

Tuesday, September 16, 2014

"An International Legal Framework for Surveillance"

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

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

September 16, 2014 in First Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (1)

Monday, September 15, 2014

"Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment"

The title of this post comes from this fascinating paper by Professor Mark Graber, the abstract of which states:

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.

September 15, 2014 in Civil Rights History | Permalink | Comments (1)

Federal judge says judicial role requires upholding death penalty of innocent when procedurally fair

At his blog Hercules and the Umpire, Judge Richard Kopf has this thoughtful discussion of the death penalty.

September 15, 2014 in Theories of Punishment | Permalink | Comments (2)

Friday, September 12, 2014

"Protecting Political Participation Through the Voter Qualifications Clause of Article I"

The title of this post comes from this forthcoming article by Professor Franita Tolson, the abstract of which states:

The Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution makes federal voting rights dependent upon participation in state elections. This Article argues that Article I incorporates both state constitutional law governing the right to vote and the democratic norms that existed within the states at the founding as the basis for determining the qualifications of federal electors. The democratic norms governing political participation can be traced to founding-era state constitutions that preserved the fundamental right of citizens to alter or abolish their governments at will, which was similar to the right of revolution exercised by the colonists against the British during the Revolutionary War. It is this understanding of the right to vote in federal elections, parasitic upon the robustly democratic notion of participation that existed at the state level and enshrined in state constitutional alter or abolish provisions, that the framers of the Constitution endorsed in the Voter Qualifications Clause of Article I. Contrary to this provision, the caselaw has divorced state and federal elections, resulting in excessive judicial deference to state regulations that govern the right to vote. As this Article shows, the Voter Qualifications Clause requires that states aggressively safeguard political participation in order to protect federal voting rights, which suggests that courts should apply a higher level of scrutiny in assessing the constitutionality of state election laws.

September 12, 2014 in Right to Vote | Permalink | Comments (1)

Thursday, September 11, 2014

"Colonialism and Constitutional Memory"

The title of this post comes from this intriguing essay by Professor Aziz Rana, the abstract of which states:

The United States shares a number of basic traits with various British settler societies in the non-white world. These include longstanding histories in which colonists and their descendants divided legal, political, and economic rights between insiders and subordinated outsiders, be they expropriated indigenous groups or racial minorities. But Americans rarely think of themselves as part of an imperial family of settler polities and instead generally conceive of the country as quintessentially anti-imperial and inclusive. What explains this fact and what are its political consequences? 

This essay, prepared for the Third "Law As..." Symposium, offers an initial response, arguing that a significant reason is the symbolic power of the American Federal Constitution in sustaining a particular narrative of the country as free and equal from the founding. Although this creedal narrative has played a powerful and productive role in creating a more inclusive national community, it has also, paradoxically, made it more difficult for Americans to appreciate the country’s colonial underpinnings and thus to address specific structural grievances. In developing these claims, the essay first explores how universalistic accounts of national identity and constitutional meaning began to take political hold with the country’s emergence onto the global stage following the Spanish-American War. It then analyzes the unacknowledged contemporary costs of creedal narratives by recovering a tradition of radical black critique, which viewed the dominant national identity as truncating dilemmas of race in part by deemphasizing the need for material restitution and symbolic rupture.

September 11, 2014 | Permalink | Comments (2)

Legal dispute over N.C. voting laws continues in federal court on Sept. 25

On September 25, the U.S. 4th Circuit Court of Appeals will begin oral arguments in the North Carolina voting rights case* over the restrictions the Republican-controlled legislature passed in 2013. As The Raleigh News & Observer's Anne Blythe reports:

The challengers contend that the 2013 election law overhaul discriminates against African-Americans, Latinos and voters younger than 25. They have asked the court to block provisions that end same-day registration, curb the number of days on which people can vote early, prohibit people from casting ballots out of their assigned precincts and end a popular teen preregistration program.


Republican leaders who shepherded the changes through the General Assembly to the desk of Gov. Pat McCrory, who signed the 2013 bill into law, argue that they are trying to ward off the potential for voter fraud, though few cases have been brought forward.

Last month, a federal judge rejected the appellant's request for a preliminary injunction against these laws, which, if approved, would have left the old laws in place through the November 2014 midterm elections. This month, the Fourth Circuit again rejected that request (here) . But, it agreed to expite their appeal.

Also, in this recent reportDemocracy North Carolina found in the last election that the new voting laws disenfranchised 454 North Carolinians whose votes would've counted before. The group writes:
Voters denied a chance to have their voices heard include a veteran returning from Afghanistan whose registration was incorrectly terminated while he was away; a first-time voter who registered at the DMV, but that registration didn’t reach the local board of elections; a precinct judge assigned to a precinct other than her own who couldn’t leave to vote in her home precinct; a disabled senior who was driven to a friend’s polling place on Election Day; a nurse who temporarily registered her car in a nearby county while working at its hospital for nine months; a college student who registered during a voter drive but her application was not recorded; and a new couple in town who mailed in their registration but it did not reach the county board of elections before the registration deadline.

September 11, 2014 in Election Law, Right to Vote | Permalink | Comments (1)

Missouri legislature overrides governor's veto of restrictive abortion measure


September 11, 2014 in Abortion | Permalink | Comments (1)

Missouri legislature likely to override governor's veto of 72-hour waiting period before an abortion requirement

Earlier this year Missouri Republicans passed a bill that would require any woman seeking an abortion to wait 72-hours before having it. Gov. Jay Nixon, a Democrat, vetoed the bill because it had no exception for rape or incest. But the Republican grip on the state legislature appears to have prevailed. As The Los Angeles Times's Alana Semuels reports:

Legislators in the Republican-dominated legislature say they have enough votes to override Nixon's veto...


If the legislature overrides the veto, Missouri will become the third state, after Utah and South Dakota, to require a 72-hour waiting period. Utah's law, passed in 2012, makes an exception for rape and incest.

September 11, 2014 in Abortion | Permalink | Comments (0)

"Protesting and Policing Boundaries: the Role of Protest in Changing Ethnic Boundaries During the Civil Rights Movement"

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

How are ethnic boundaries altered in the wake of challenges to ethnic hierarchy? While ethnic boundaries may evolve in the longterm, I argue that in moments of rupture boundaries can change quickly. Mass incarceration and police stop-and-frisk policies evidence the fact that the security apparatus of the state can institutionalize racial and ethnic boundaries through the threat of and use of violence. In this paper, I examine how the 1966 Campaign by the Chicago Freedom Movement by Martin Luther King, Jr. and the Southern Christian Leadership Conference altered the police behavior towards, and thus the racial boundary of, the black community in American cities. I use unique data, collected in 1966, on the details of nearly 20000 police-citizen interactions in Chicago, Boston, and DC. In the midst of this data collection, the SCLC began housing demonstrations in Chicago. I exploit this coincidence to test whether the protests led the policing of black communities and the application of state power at the racial boundary, to intensify or abate. By showing how the police responded to protest against the racial status quo, this paper furthers understanding of the intersection of race and criminal law. More generally, this paper employs a strong research design and unique data on ethnic practices at the micro-level to show that the content of ethnic boundaries change quickly during social upheaval.

September 11, 2014 in Civil Rights History, First Amendment | Permalink | Comments (0)

Republican U.S. Senate candidate highlights support for same-sex marriage in new ad

That's Monica Wehby. Republican U.S. Senate candidate running against incumbent Democrat Sen. Jeff Merkley in Oregon. As The Lost Angeles Times observes, she would join an exclusive class of Republican senators who openly support same sex-marriage were she to win in November.  

U.S. Sens. Susan Collins of Maine, Mark Kirk of Illinois, Lisa Murkowski of Alaska and Rob Portman of Ohio are the only Republicans in the Senate to support same-sex marriage.

September 11, 2014 in Same-sex marriage | Permalink | Comments (0)

Poll finds only 35% of people believe government surveillance has "gone too far in restricting civil liberties"

Wednesday, September 10, 2014

"Extending Executioner Confidentiality to Lethal Injection Drug Suppliers"

The title of this post comes from this upcoming article by Professor Mary Fan, the abstract of which states:

The strategy of taking the death penalty battle to the market by ferreting out and campaigning against lethal injection drug suppliers has been wildly successful in shriveling the execution drug supply. The supply-side strategy has not halted executions, however. Rather, the unintended consequences of shrinking execution drug supply are heightened risks of harm as states resort to alternative drugs and a surge of new state secrecy laws to protect remaining supply sources. The new secrecy laws are facing a barrage of legal challenges and a circuit split on how to resolve them. Yet despite the voluminous literature on the rights and wrongs of the death penalty, there is little study of the legal question now besetting the courts regarding execution drug supplier confidentiality. This article fills the need for a study of rise and propriety of the new lethal injection supplier confidentiality laws and the role of such laws in preventing worsening harms and unintended consequences.

The article distinguishes the frequently litigated issue of execution drug supplier confidentiality from concealment of the method of execution. There is a harm prevention rationale for supplier confidentiality, to safeguard remaining licensed drug sources and reduce the need to resort to questionable backroom sources abroad or old methods of execution such as firing squads. In contrast, eleventh-hour drug substitutions lack a harm prevention justification and are far more material contributors to the rising risk of harm. The recent rise of drug supplier confidentiality laws make them a lightning rod for challenges – and unfortunately draws attention away from the real problem: secret execution protocols rather than secret suppliers.

September 10, 2014 | Permalink | Comments (0)

This portrait will hang in the California Capitol. Seriously. Yes, seriously.

There was a city council meeting last night in Ferguson, Mo.

The first since a white police officer shot and killed Michael Brown, an unarmed black teenager.

It did not go well.

September 10, 2014 | Permalink | Comments (1)

"Why More Americans Should See the Beheading Videos"

The American public must see images of violence from military engagements and terrorist attacks in which lives - even American lives - are lost, writes The Intercept's Peter Maass. Because images of dead Americans have been kept from the public, we have not yet had to fully deal with the "depravity of war." According to Maass: 

This censorship has spawned an odd blowback. By shielding us from disturbing imagery, our government (and editors who shy away from gore) may have made us all the more vulnerable when we finally see dead Americans. This is not an abstract theory. The two disastrous invasions of Falluja during the Iraq War were sparked by pictures of the bodies of four American contractors hanging from one of the town’s bridges in 2004. It wasn’t the event itself so much as the pictures that launched such destructive fury. Confronted with these stark but complicated images, we tend to respond with a primal scream, as The New York Post did with its identical headlines for both the Falluja desecrations in 2004 and the Islamic State beheadings a decade later: “Savages.”


In the case of the Islamic State, some of the outrage is explained by the perverse pride the killers take in distributing the evidence of their crimes. But we are on a slippery slope with this indignation, because we have our own macabre mechanism for broadcasting the deaths of our supposed enemies — Central Command recently began tweeting out links to videos of air strikes in Iraq. As human rights groups have amply documented, a large number of civilians have been killed by American drones. Many Americans look at those videos and think, Got the bad guys, job well done. How many Iraqis, Afghans, Pakistanis or Yemenis look at those same videos, remind themselves of the women and children killed, and say, What savages?


In the end, it is a strange twist: Instead of pushing us away from war, as the Vietnam generals feared, images of American casualties are now driving us into the vortex. Would seeing more of it really help? Instead of reasoned discussion, might there be more howls for revenge? Or might there be shrugs of seen-it-before indifference, as Susan Sontag warned in her 2002 New Yorker essay, “Looking at War?” I wish we didn’t have to ask these questions — that there were no loathsome images to flash on our screens — and I wish we didn’t have a responsibility to look and think deeply. But we do, if the depravity of war is to be understood and, hopefully, dealt with.

September 10, 2014 in First Amendment, Freedom of Press | Permalink | Comments (0)

"Everybody has this bad taste in their mouth about 'militias.' They think we're out here trying to smoke people and kill them as soon as they cross the border. Which obviously, is not the case."

New non-lethal weapon "scrambles ocular fluid and temporarily blinds victim for 10-15min"

Federal panel overturns murder conviction due to discrimination by prosecution during jury selection

The Los Angeles Times's Maura Doran reports:

The U.S. 9th Circuit Court of Appeals said Anthony Castellanos, convicted of second-degree murder for a fatally shooting a 12-year-old, deserved a new trial because the prosecutor used a “factually erroneous” reason for removing the woman.


During jury selection in 2005, Castellanos’ lawyer argued that the prosecution struck four prospective Latino jurors because of their ethnicity.


The prosecutor denied the discrimination, and the trial judge allowed the strikes. The jury that eventually convicted Castellanos had seven Latinos, four non-Latino whites and one Asian.


Castellanos argued on appeal that the four Latinos had been removed because of race, which the U.S. Supreme Court has prohibited.


The 9th Circuit said the removal of only one juror because of race was enough to grant Castellanos a new trial and based its ruling on the strike of the woman. The three-judge panel said the prosecutor's reason for the strike was not supported by the evidence.

September 10, 2014 | Permalink | Comments (0)

"Those lawful, peaceful protesters did not deserve to be treated like enemy combatants.”

-- Sen. Claire McCaskill (D - Mo.) on the police response to protests in Ferguson during the Senate Homeland Security and Governmental Affairs Committee hearing yesterday. 

The hearing was set to evaluate the propriety of a policy that sends billions of dollars in military equiptment to local law enforcement across the county.

September 10, 2014 in Current Affairs | Permalink | Comments (0)

Not exactly ideal police behavior...

A Chicago policeman with "dozens of excessive force complaints over the years" is facing felony charges and a civil rights suit after allegedly "shoving his gun down [the] throat" of an unarmed suspect. WGN reports:

The lawsuit claims Evans violated Williams’ civil rights in January, 2013 when he chased him into an abandoned building in the Grand Crossing neighborhood. Evans allegedly shoved his gun down Williams’ throat while also threatening him with a Taser to the groin as he sought a confession for gun possession.


No guns were ever found and after filing a complaint, Williams’ DNA was found on Evans’ service weapon.

September 10, 2014 | Permalink | Comments (0)

Tuesday, September 9, 2014

Twisted OK halfway house allegedly formed "fight clubs" for inmates

The Tulsa World reports former inmates claim this violated some of their civil rights:

A lawsuit filed in federal court Monday alleges that former employees of the Avalon Tulsa halfway house violated inmates’ civil rights by organizing fight clubs and inmate beatings, selling drugs and charging inmates for falsified clean drug tests.




Court filings allege that former Avalon Tulsa administrator Donnie Coffman had inmates discipline one another through a system they called taking inmates “to court,” extorted residents of the halfway house, organized bets on fights, manipulated urinalysis drug tests and altered misconduct reports to prevent inmates from transferring to other facilities to keep Avalon’s beds full.

September 9, 2014 | Permalink | Comments (0)

Floridan alleges civil rights violations by officer who arrested him for crapping outside of bar


September 9, 2014 | Permalink | Comments (0)

Report: Strict voter ID laws may disenfranchise many transgender citizens

The Williams Institute for the study of sexual orientation and gender identity law and policy at the UCLA School of Law issued this report finding that strict photo ID laws could greatly affect the ability of transgender citizens to cast ballots in upcoming elections. It concludes:

Voter ID laws create a unique barrier for transgender people who would otherwise be eligible to vote. Many transgender people who have transitioned do not have identification that accurately reflects their correct gender. In the November 2014 election, strict photo ID laws may create substantial barriers to voting and possible disenfranchisement for over 24,000 transgender people in nine states. Transgender people of color, youth, students, people with low incomes, and people with disabilities are likely overrepresented in that group. In order for these 24,000 voting-eligible transgender people to obtain the updated IDs required to vote in the November 2014 general election, they must comply with the requirements for updating their state-issued or federally-issued IDs. These requirements vary widely by state or federal agency and can be difficult and costly to meet. Voter ID laws, therefore, will create a unique barrier to voting in the November 2014 general election for a substantial number of transgender citizens.

September 9, 2014 in Right to Vote, Voter ID | Permalink | Comments (0)

"Ballots for Bullets? Disabled Veterans and the Right to Vote"

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

Over 100,000 veterans lived in a government-funded home after the Civil War. Despite sacrificing their bodies for the preservation of the nation, these veterans lost the right to vote. This disfranchisement challenges the conventional wisdom that disabled veterans occupied a privileged position in society, politics, and law. Instead, their disability status trumped their military history, and they became part of a set of dependent, disabled people rendered placeless and vote-less by state law.

September 9, 2014 in Right to Vote | Permalink | Comments (0)

Senate's 'Torture Report' might not be released until after mid-term elections

Senate Democrats and President Obama can't agree on redactions to the upcoming Senate report on the government's use of harsh interrogation techniques/torture in the years since 9/11. While some expected that it already would have been released, it now could be much later this year - maybe not even then - before we see it.

As I noted yesterday, over the weekend The Telegraph reported that an anonymous source claims the report will reveal CIA actions that will "deeply shock" us. 

September 9, 2014 | Permalink | Comments (0)

Senate hearing on militarization of police in progress

Senate Homeland Security and Governmental Affairs Committee hearing on the federal program that sends billions of dollars in military equiptment to local police forces.

- Video here.

- The Guardian's Tom McCartney is live-blogging here.

September 9, 2014 | Permalink | Comments (0)

“Nobody wants his mule and wagon stalled on the same track the Dixie Limited is roaring down.”

Judge Richard Posner is the Dixie Limited in this Flannery O'Connor quote, while Judge Martin Feldman - the judge who upheld Louisiana's ban on same-sex marriage - is apparently the mule.

According to The Atlantic's Garrett Epps, Posner's "tour de force" decision affirming the unconstitutionality of the same-sex marriage bans in Indiana and Wisconsin decimates most arguments for banning same-sex marriage. He questions whether Justice Anthony Kennedy will be willing to play the mule when the Supreme Court eventually addresses the issue.

September 9, 2014 in Same-sex marriage | Permalink | Comments (0)

ICYMI: Federal judge upholds Louisiana's same-sex marriage ban

But about his opinion.

September 9, 2014 in Same-sex marriage | Permalink | Comments (0)

Monday, September 8, 2014

"Two More Ways Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this recent essay by Professor David Alan Sklansky, the abstract of which states:

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

September 8, 2014 in Fourth Amendment | Permalink | Comments (0)

CAIR requests civil rights probe into bank account closures

The Los Angeles Times reports some Muslims from across the country have had their bank accounts closed but haven't been told why. The Florida chapter of the Council for American-Islamic Relations (CAIR) wants the DOJ to investigate whether the account holder's race affected a bank's decision to close an account.

September 8, 2014 | Permalink | Comments (0)

Video shows NYPD officers beating man during routine noise disturbance call

Salon.com's Johanna Rothkopf notes this local report on a young man in the Bronx who was violently beaten by NYPD officers responding to routine noise disturbance. The video shows the two officers stop-and-frisk the young man. After more officers arrive, it shows them kicking him and hitting him with nightsticks and fists.

NYPD Internal Affairs Bureau is reportedly investigating the incident.

September 8, 2014 in Excessive Force, Stop-and-frisk | Permalink | Comments (0)

Public-accountability defense for whistleblowers and immunity for Snowden?

Professor Yochai Benkler argues that whistleblowers ought to be able to assert public-accountability as a defense to criminal charges resulting from unathorized public disclosures. He also says Congress ought to grant retroactive immunity to those national defense whistleblowers to whom the defense would have extended, such as Edward Snowden. He observes that whistleblowers in the national defense industry have fewer protections than whistleblowers in other industries, but he questions whether the government's interest in secrecy is sufficient to justify those limitations.

A system as complex as national security is bound to experience problems. But secrecy may actually affect the correction of those problems and thereby affect the overall efficiency of that system. Benkler explains:

Secrecy disables many of the mechanisms that other systems use to correct failure dynamics. In the public sector, informed and interested outsiders facilitate robust judicial, legislative, or executive oversight. In the private sector, both the stock market and regulators rely on public information and disclosure requirements to punish error, incompetence, and malfeasance. From defective products to poor business judgment, information flow is the critical ingredient of correction. The internal and external information silos that typify national security and the secrecy and mystique of the agencies all disable the standard mechanisms we use to counterbalance the error dynamics of other large organizations. The complexity and uncertainty of the threats the national-security system faces compound the difficulties so that even insiders—to say nothing of outsiders—struggle to evaluate whether an element of the system is working or has gone off track.


Because it is practically impossible for outsiders to check the national-security system, protecting insider whistleblowers is especially critical...Only repeated acts of conscientious disclosure by insiders have brought us close to a public airing of the limits of surveillance.


Reform that tries to rebuild the well-behaved aspects of the system but ignores the critical circuit-breaker role played by unauthorized whistleblowing is set up for failure. Respecting leaks and leakers is no slight to the patriotism or professional bona fides of people in the national-security system, the congressional staff, or the judicial officers who form the insider-review system. It is an admission that it is practically impossible to build a purely self-contained review regime.

Therefore, unauthorized whistleblowers are instrumental to the health of the national security system, and this importance ought to be reflected in the strength of the protections extended to them.

September 8, 2014 | Permalink | Comments (1)

“They were holding them under water until the point of death, with a doctor present to make sure they did not go too far. This was real torture.”

An anonymous source tells The Telegraph that the CIA tortured top al-Qaeda operatives captured after 9/11, including Khalid Sheikh Mohammed. This comes as we wait for a declassified version of the Torture Report, which apparently will reveal "brutality" that will "deeply shock" everybody. 

September 8, 2014 in Theories of Punishment | Permalink | Comments (2)

Friday, September 5, 2014

California bill requiring background checks for ammo purchases falls short

The Los Angeles Times reports that supporters of a bill that would require ammunition venders to "provide information on purchasers to the state Department of Justice after the fact" failed to garner enough votes to pass the bill out of the California State Assembly.

The bill was supported by law enforcement but opposed by the NRA and other gun-rights groups.

September 5, 2014 | Permalink | Comments (2)