• October 5, 2015

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    The New York Police Department announced on Thursday that it has established new and unprecedented guidelines governing the use of force, and perhaps more importantly, the reporting and recording of each instance in which an NYPD officer uses force, whether or not it results in an actual arrest. According to The New York Times, not only will the use of force during incidents resulting in lawful arrests be reported and investigated, “but also in other encounters with the public, including the sort of brief, violent detention and release that occurs routinely on the street.” 

    Huh?  This raises at least two questions: In what universe are the police routinely engaging in violent encounters and detentions with the public on the street that result in that one-time “suspect” being released without arrest and criminal charge?  On what legal basis was the stop initiated in the first place?  James Blake, the African American tennis star who was attacked and thrown to the ground by an NYPD officer in September, is an example of just such a “brief, violent detention.” These “encounters” (assaults) apparently occur with such frequency in New York City that it is only now, in 2015, after an attack on a celebrity former professional athlete attending the U.S. Open, that these incidents of “rough police play” are even seen as worthy of being recorded and investigated. 

    Any encounter or stop on the street between a police officer and a member of the public that results in a “violent” detention, no matter how brief, where there is no reasonable suspicion or probable cause that results in an arrest is a de facto instance of excessive force. Without doubt, there will be rare and infrequent instances where officers strongly believe that they have the reasonable suspicion or probable cause required to make a legal stop on the street and in so doing see their suspicions dispelled upon further investigation. The police may even see the need to use some level of force in making the stop. 

    But the routinization of the use of violence by the police in New York City in making street stops of innocent and law abiding citizens like Mr. Blake is troubling, as it should be. The world saw what the NYPD did to Mr. Blake; what we have not witnessed are the no doubt hundreds of thousands of other instances during the past several years of men, women and children of color being knocked down, bundled, tackled, beaten and then unceremoniously sent on their way without arrest or charge by the NYPD.

  • October 5, 2015

    by Jim Thompson

    Garrett Epps at The Atlantic discusses the partisan implications of three forthcoming Supreme Court cases.

    At The New Republic, Lawrence Goldstone explains that the decision in Citizens United vs. Federal Elections Commission has misguided legal roots in “a series of late nineteenth century Supreme Court rulings that disemboweled the Fourteenth and Fifteenth amendments and ushered in the Jim Crow era.”

    Catherine Fisk at On Labor argues that Justice Antonin Scalia’s frequent opinion that public employees have minimal free speech rights “should require him to reject the First Amendment challenge to union fair share fees in Friedrichs vs. California Teachers Association.”

    At Vice, Max Rivlin-Nadler explains why budget constraints are undermining defendants’ right to an attorney in legal proceedings. This story is part of a larger series on mass incarceration in America. 

  • October 5, 2015
    Guest Post

    by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America

    On the first Monday in October, the Supreme Court returned from its long summer recess. Thus, the 2014 NLRB v. Noel Canning ruling -- which revoked President Barack Obama’s 2012 NLRB recess appointments – has well passed it first anniversary.

    The high court’s conjuring of an absolutist 3-day Senate recess minimum conjoined with a vague and unworkable “presumptive 10-day” Senate recess rule (with an added “unusual occurrence” complexity) continues to be analyzed.  Some in the academy acclaim Steven Breyer’s majority opinion as reflecting a new “pragmatic formalism” while most others praise it for at-least being opposite Antonin Scalia’s dissenting-concurrence which restated the D.C. Circuit’s uber- textualist ruling.  I continue to think it was a mistake for the judiciary to have involved itself in the political branch appointments battles.

    No reporter, academic, or commentator, however, has yet revealed that Noel Canning also revoked President Lyndon Johnson’s  January 1964 judicial recess appointments of civil-rights legends Leon Higginbotham, Spottswood Robinson, and David Rabinovtiz. In a just-published article in the Houston Law Review’s online edition, I expose the unconsidered Noel Canning consequence of the judgeship revocations.  As the recess commission were signed by Lyndon Johnson during an eight day intersession recess of the 88th Senate,  Noel Canning judged the recess 48 hours too short and the judgeships illegal.  The recess appointments  were “rendered illegitimate” for failing the “presumptive 10-day” recess test.  The eight day break was 48 hours too short.

    Six weeks after John F. Kennedy’s murder, LBJ forced the racial and religious integration of three federal courthouses. The new president signaled his administration’s commitment to civil rights and directly challenged racist and reactionary forces in both the Senate and the federal judiciary. The LBJ White House tapes tell the story for Higginbotham, Robinson, (expect a slight delay) and  Rabinovitz,  and as Johnson made sure he secured the most political capital for signing each commission in the coming battle for the Civil Rights Act.

  • September 30, 2015
    Guest Post

    By Nancy Shor and T.J. Sutcliffe. Ms. Shor is the Senior Policy Advisor for the National Organization of Social Security Claimants’ Representatives (NOSSCR) and Ms. Sutcliffe is the Director of Income and Housing Policy at The Arc.

    Unless Congress acts, at the end of 2016 nearly 11 million Americans who rely on Social Security disability benefits will face a devastating 19 percent benefit cut. In the past, Congress has never failed to come together on a bipartisan basis to prevent this kind of abrupt, across-the-board cut in one of our nation’s most beloved social insurance systems. But sadly, over the last year political brinksmanship has delayed necessary action and left beneficiaries and their families living in a state of ongoing alarm over the future of their economic security.

    Standing strong at 80 years and counting, our nation’s Social Security system insures nearly all American workers and their families for retirement, death, and qualifying disabilities. Given the reality of today’s economy, most workers have few if any savings to fall back on in the event of a life-changing disability. Social Security Disability Insurance (SSDI) benefits average only around $40 per day for disabled worker beneficiaries, but make up the majority of personal income for most. It’s no surprise that without SSDI, most beneficiaries and their families would face financial dire straits and often unthinkable choices.

    The current need to replenish Social Security’s Disability Insurance (DI) fund to account for long-term trends, such as an older workforce now in its disability-prone years, has been expected for several decades. Without congressional action, at the end of 2016 the DI fund’s reserves will be depleted, leaving only incoming payroll contributions to pay for benefits. As a result, unless Congress acts, SSDI beneficiaries will face a 19 percent benefit cut at the end of 2016.

  • September 30, 2015
    Guest Post

    by Jessica M. Eaglin, Associate Professor, Indiana University Maurer School of Law

    Fees and fines provide an appealing method of punishment in states facing the pressures of mass incarceration and continued budget constraints. But until courts receive meaningful guidance on how and when to impose fees and fines, and unless legislatures exercise meaningful restraint on the creation of user fees in particular, this punitive practice will continue to do more harm than good for defendants, local justice systems and society at large.

    Fees and fines are the economic sanctions imposed on defendants through the criminal justice system. Unlike punitive fines or restitution to compensate the victim of crimes, “user fees” are imposed solely to raise revenue. User fees range from nominal fees to obtain free public defender services to daily fines for use of GPS monitoring systems that supervise defendants pretrial or on probation to daily fines for incarceration in jail, and more.

    As states face severe budget constraints, the “offender-funded” model of criminal justice – where critical costs to running the justice system are pushed onto the defendants in the system – becomes more prevalent. Many state courts simply cannot function with the amount of money allocated by their legislatures, so they are resorting to creative alternatives that are often costly for defendants entering the justice system. Offensive examples spatter the news weekly: defendant fees cover toilet paper in jail; court-imposed home supervision technology; or unmet court expenses like coffee and office supplies and court support staff and other government operations