ACSBlog

  • November 24, 2014

    by Nanya Springer.

    Abner Mikva has led the sort of distinguished legal career that is often condensed into a list of prestigious positions and awards.  Undeniably, this list is impressive; Mikva has commanded top positions in every branch of government.  He was a five-term Illinois Congressman, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, and White House Counsel for President Bill Clinton.  He has been a law professor at the University of Illinois, the University of Chicago, and Northwestern University.  He has received the Thurgood Marshall Award from the American Bar Association, he was honored as a Legal Legend by the Chicago Lawyer Chapter of ACS, and on November 24, he will receive the nation’s highest civilian award—the Presidential Medal of Freedom.

    However, merely listing Mikva’s accomplishments fails to communicate the true value of his contributions to the American legal and political landscape.  The Presidential Medal of Freedom honors those who have made “an especially meritorious contribution to the security or national interests of the United States, world peace, cultural or other significant public or private endeavors.”  To understand how vital Mikva has been to ensuring a robust and healthy democracy, it is necessary to examine the issues he has championed during his long and esteemed career.

    As an Illinois General Assembly legislator near the beginning of his career, Mikva pushed for fair housing laws and for reforms of the state criminal code.  As a judge on the D.C. Circuit, he ardently defended free speech and consumer rights in his opinions, and he rejected the discriminatory Justice Department policy of expelling openly gay service members long before this view was politically popular.  Throughout his career, Mikva consistently promoted issues concerning social justice and the public welfare.

  • November 24, 2014
    Guest Post

    by Brandon L. Garrett, Professor of Law, University of Virginia School of Law. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, scientific evidence, corporate crime, and the law. This fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    “He’s a grown man today, he was just a boy back then,” said Ricky Jackson upon his release from prison last week.  “I don’t hate him.” Jackson spent 39 years behind bars, more than any other person exonerated in the U.S., according to the National Registry of Exonerations. Jackson was speaking of the 12 year-old who had identified him and two others as murderers, and whose testimony in 1975 sent him to Ohio’s death row. Last week, the eyewitness admitted his testimony was “all lies.” There was no other evidence in this case: no forensic evidence, physical evidence, or other witnesses.  The exoneration highlights just how malleable eyewitness testimony can be, and how important it is to get it right. 

    This Fall, the National Academy of Sciences published an important report “Identifying the Culprit: Assessing Eyewitness Identification.” I was a member of the committee that produced the report. The report evaluates decades of research on eyewitness memory and it details scientific procedures that can help to prevent error. 

  • November 24, 2014

    by Caroline Cox

    In The New York TimesThe Editorial Board argues against current jurisprudence that could allow Texas to excute a mentally ill man. 

    Kathleen Sharp of Salon argues that post-Citizens United, the United States needs donor ID laws.

    In The Nation, Mychal Denzel Smith writes that protester suppression is happening in Ferguson even without a militarized police force.

    The blog for the Brennan Center for Justice features stories from the 2014 midterm elections that look at how voters were unfairly impacted by new voting restrictions.

    Joseph Tafani writes in the Los Angeles Times that judicial elections are getting even more political with the growth of campaign spending and references the ACS "Skewed Justice" report.

    In The Washington Post, Robert Barnes previews the upcoming oral argument for Elonis v. United States, a free speech case that considers how to treat threats on social media.

  • November 22, 2014
    Guest Post

    by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law

    The debate over President Obama’s action on immigration has raised a difficult and enduring issue: the nature and scope of the executive’s prosecutorial, or perhaps more accurately, enforcement discretion. The existence of such discretion is inevitable and, in many circumstances, desirable. Consider the familiar example of the enforcement of speed limits.  Anyone who travels the nation’s highways knows that law enforcement officers do not pull over drivers who slightly exceed the posted speed limit. We would expect a driver to be upset to get a ticket for going 56 mph in 55 mph zone. To some extent this practice of ignoring slight violations of speeding laws results from scarce enforcement resources. While a police officer is occupied with issuing a ticket to a speeder, that officer is unable to pull over other speeders.  An officer who tickets the hypothetical driver for going 56 mph risks allowing a dangerous speeder, say someone going 90 mph, to evade detection. This risk wouldn’t exist if there were an unlimited number of police officers at the roadside able to take over while one officer pulls over the 56 mph driver.  Given the existence of scarce enforcement resources, police officers have concluded that refraining from enforcing speed limits against slight violators actually better promotes the goal of the speed limit – highway safety.

    On the other hand, it is easy to see how this discretion might be abused. The power could be used to undermine the force of existing laws and thus, in effect, to repeal or revise those laws.  Imagine, for example, the President orders the Social Security Administration to cease processing social security payments because doing so would conserve scarce federal resources.  This order would be clearly illegal.  It would violate individual rights (for qualified persons to receive the payments) and an affirmative statutory command to the executive branch (to make the payments). 

    What are we to do when the exercise of discretion does not fall at one of these extremes?  This is a truly important issue.  At its heart, the issue involves the proper relationship between the executive and legislative branches.  The conundrum is expressed in the Constitution’s Take Care Clause (which directs that the President “shall take Care that the Laws be faithfully executed”).  This Clause simultaneously imposes a duty on and recognizes power in the President.  On the one hand, the Clause forbids the President to refuse to enforce the laws (I do not mean to address the context where statutes conflict with one another or with the Constitution).  On the other hand, the idea of “faithful execution” must include some room for the exercise of discretion to determine what course will faithfully execute the laws.  This theoretical conundrum has real practical resonance.  Conservatives today see the President flouting the recent elections and pursuing a regulatory policy that is not only inconsistent with those results but represents the sort of broad policymaking that one would ordinarily expect to see in a statute, not in unilateral executive action.  The President, on this view, is usurping the legislative power.  This is not a frivolous concern.  Flipping the political valence, consider a future, conservative President taking the position that he or she is clothed with discretion to refrain from prosecuting violations of certain federal firearms laws or environmental protections.  Many of those expressing approval of President Obama’s order would be outraged at the usurpation of a President who unilaterally re-writes the law of environmental protection or firearms safety.

  • November 21, 2014

    by Rebekah DeHaven

    This week, the Senate voted to confirm eight U.S. District Court nominees. On Tuesday, November 18, the Senate confirmed three nominees:

    Leslie Abrams, nominated to the U.S. District Court for the Middle District of Georgia, by a vote of 100-0;

    Eleanor Ross, nominated to the U.S. District Court for the Northern District of Georgia, by voice votes; and

    Mark Cohen, nominated to the U.S. District Court for the Northern District of Georgia, by voice votes.

    Later in the week, after invoking cloture, the Senate confirmed an additional five nominees:

    Pamela Pepper, nominated to the U.S. District Court for the Eastern District of Wisconsin, by a vote of 95-0;

    Brenda Sannes, nominated to the U.S. District Court for the Northern District of New York, by a vote of 96-0;

    Madeline Arleo, nominated to the U.S. District Court for the District of New Jersey, by voice vote;

    Wendy Beetlestone, nominated to the U.S. District Court for the Eastern District of Pennsylvania, by voice vote; and

    Victor Bolden, nominated to the U.S. District Court for the District of Connecticut, by a vote of 49-46.