• October 8, 2015

    by Paul Guequierre

    As the political right, including many Republican members of  Congress, continue an  attack on women’s healthcare in the form of ongoing  assaults on Planned Parenthood, American Constitution Society President Caroline Fredrickson testified today before the House Judiciary Committee in its second hearing in a series misleadingly titled, “Planned Parenthood Exposed: Examining Abortion Procedures and Medical Ethics at the Nation’s Largest Abortion Provider." 

    In her testimony, Fredrickson said:

    In reality, these videos are not about alleged illegal sales of fetal tissue. They are not about alleged violations of the Partial Birth Abortion Ban. They are about a persistent campaign by a small group of people who believe that abortion should be illegal, by any means necessary.

    But the truth is that abortion is an essential component of women’s health care.’ It is also one of the safest medical procedures performed in the United States. And three in ten women in the U.S. will have a safe, legal abortion during her lifetime. Women and their doctors clearly understand that abortion is a safe, legal, and essential part of women’s health care. Women who seek access to abortion, like any patient seeking access to essential health care, are entitled to “privacy, dignity, respect, and support.”  Elected officials should listen to what women and their doctors already know – sham laws and baseless investigations that serve only to burden a woman’s right to choose have no place in our nation’s statehouses.

    Fredrickson’s testimony can be read here. See video of entire hearing from C-SPAN.

  • October 8, 2015
    Guest Post

    by J. Paul Oetken, U.S. District Judge for the Southern District of New York

    Judge Richard D. Cudahy, who served for 36 years on the United States Court of Appeals for the Seventh Circuit, died last month at the age of 89. He was beloved by his family and friends, his colleagues, and his many law clerks. He was also admired as a brilliant and influential jurist whose opinions shaped the development of the law in myriad ways.

    I served as one of Judge Cudahy’s law clerks from 1991 to 1992, and that year was one of the most rewarding and interesting of my career. The judge was not only a kind and generous boss; he was also a great teacher and mentor. We discussed every case in detail, and through that process I gained great insight into how he thought about law and justice.

    Judge Cudahy’s approach to the law was humanistic and pragmatic; he was neither formalistic nor result-oriented. He cared deeply about the judicial craft, taking great care to write opinions that were well-reasoned and principled, while always being particularly sensitive to how legal doctrine affects people’s lives. His sense of fairness and even-handedness pervaded his evaluation of every case, regardless of the background of the litigants involved.  In a prisoner’s appeal in a civil rights case, Judge Cudahy wrote (in response to a colleague’s economic analysis):  “Since the financial net worth of most prisoners is zero and their economic value while incarcerated perhaps less than zero, it is not surprising that efforts to take them seriously as human beings are sometimes scorned. They are not all Jean Valjean, but they are people.”

    The judge was modest as a jurist, just as he was modest as a person. He did not pretend that an outcome was obvious when it was not, nor did he construct fancy theories to dictate results of cases.  He was an honest judge who practiced his craft straightforwardly.

    He was also extraordinarily hard-working and well-prepared. Every night he would carry a heavy stack of briefs home with him.  When we discussed our cases, he had always read the briefs thoroughly and had his own views (and questions) about each of the issues presented.  He had high standards for his written opinions, going over drafts repeatedly until he was satisfied that an opinion was right, both in its result and in its explanation.

  • October 8, 2015
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    The state of Alabama has once again relegated some of its citizens to second-class status.  The confluence of driver’s license office closures and a much maligned voter identification law fosters the dishonoring of Alabama’s black and impoverished citizens in a perpetual cycle of deprivation and struggle.

    The genesis of the recent strife begins with Alabama’s enactment of a voter ID law in 2011, requiring citizens to present a valid, government-issued ID to vote at polls beginning in 2014. One of the most common forms of ID satisfying the state law are driver’s licenses. Pursuant to the state’s own study conducted in 2014, 10 percent of registered voters – 250,000 citizens – lack any form of the required photo ID, and 20 percent of registered voters – 500,000 citizens – lack a valid Alabama driver’s license or non-driver photo ID.

    Ostensibly due to spending reductions in Alabama’s fiscal year 2016 budget, the Alabama Law Enforcement Agency (“ALEA”), of which the Driver License Division is a part, closed 31 part-time, satellite driver’s license offices. As a result of these closures, 28 of Alabama’s 67 counties will not have facilities to issue licenses to first-time driver’s license examinees or out-of-state transplants seeking an Alabama license. Those seeking license renewals may do so at county probate offices or online (yet those options present their own problems).

    Citizens and civil rights defenders decry the closures due to the disproportionate burden massed upon black citizens and the impoverished in the largely rural counties. The closures eradicate eight of the ten counties in Alabama with the highest percentages of non-white, registered voters. Indeed, those eight counties comprise the only counties where more than 75% of the registered voters are black citizens. A refined analysis portrays a more troublesome picture. While 80 percent of the counties with non-white voting majorities suffer the closures, only 35 percent of the counties with white voting majorities bear any consequences (20 of the 57 remaining counties in Alabama), thus leaving 65 percent of the counties with majority-white voters largely unaffected. This disparity in the closures’ impact starkly portrays the inequity in ALEA’s budget cutting.

  • October 7, 2015

    by Jim Thompson

    Matt Ford at The Atlantic reports that approximately “6,000 federal inmates whose long sentences were reduced last year will be released at the end of October, marking the start of the most substantial effort yet to reduce America’s gargantuan prison population.”

    At, John Archibald explains why making free voter IDs available to residents of Alabama’s Black Belt is not enough to ensure full voting rights in the region.  

    In The Washington Post, Greg Sargent interviews Adam Winkler, ACS Board of Directors member and author of Gunfight: The Battle over the Right to Bear Arms in America, about combatting gun violence in America.

    Brian Lamb at C-SPAN talks with Tony Mauro about his new book Landmark Cases: Historic Supreme Court Decisions, a companion publication to the C-SPAN television series. 

  • October 6, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    Yesterday, the Supreme Court issued a per curiam ruling in Kulbicki v. Maryland. The ruling was brief but unusual; the Court does not often take certiorari to review state habeas rulings. Here, the Maryland Court of Appeals had granted habeas to a prisoner whose trial lawyer had utterly failed to challenge an FBI agent’s testimony about Comparative Bullet Lead Analysis, or CBLA. The FBI agent did not find an “exact” match but sufficient similarity to conclude that the bullet that killed the murder victim came from Kulbicki’s weapon (and also matched a fragment in his truck). The problem was that this CBLA bullet analysis was flawed science. The National Academy of Sciences concluded in a 2004 report that "The available data do not support any statement that a crime bullet came from a particular box of ammunition.” Fundamental flaws in the assumptions and empirical basis for CBLA analysis led Maryland courts to reject CBLA evidence 15 years later, and the FBI to itself later disavow and discontinue use of the technique in 2005.  

    Should Kulbicki’s lawyer have known back in 1995, at the time of the trial, that this was flawed science? Kulbicki argued that a report co-authored by the analyst showed how the FBI analyst had doubts even in 1991 “that bullets produced from different sources of lead would have a unique chemical composition.” The Court rejected the notion, saying that “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Further, “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial,” it would be asking lawyers to "go looking for a needle in a haystack” to search for such evidence that the forensics were flawed.

    Compare the Court’s ruling in Kulbicki to last year’s per curiam opinion in Hinton v. Alabama, another case examining a lawyer’s failure to adequately develop forensic evidence at trial, including firearms and tool mark analysis. The outcome was different. In Hinton, a death penalty case, the Court found the lawyer to have been constitutionally ineffective. (On remand, Hinton’s conviction was vacated). From the beginning, the tone in the two per curiam opinions could not have been more different. In Hinton, the Court correctly stated the Strickland v. Washington constitutional standard for ineffective assistance of counsel as asking “if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.” In Kulbicki, the Court oddly misstated the standard as “meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” That description of the Strickland test was, at the very least, a casual and imprecise one.