Access to Justice

  • March 21, 2014
    Guest Post
    by Kamal Essaheb, Immigration Policy Attorney, National Immigration Law Center
    * Mr. Essaheb will be a panelist at the March 24 event, “From ‘Papers Please’ To DREAM and TRUST,” hosted by ACS and the Center for American Progress. See here to register for the event at SEIU in Washington, D.C.
    While high-profile discussions about immigration policy sputtered in 2013, states across the country have proposed—and enacted—inclusive legislation that improves community policing, increases access to affordable education, and improves highway safety. Therein lies the lesson from state capitals to Washington: pro-migrant measures aren’t just good policy, they’re good, bipartisan politics.
    It hasn’t always been this way. As recently as 2011, five states rushed to adopt Arizona’s SB 1070, an anti-immigrant law that was subsequently challenged by the National Immigration Law Center and others. Last year, North Carolina was the only state to propose legislation that would require police officers to demand “papers” of those they suspected were in the country without authorization, but this proposal was turned into a study bill. This resulting study found that enforcement measures were unnecessary and costly. Furthermore, states that had vigorously defended their anti-immigrant laws—Alabama, Indiana, and, most recently, South Carolina—have all agreed to settle civil rights challenges instead, and Colorado repealed an anti-immigrant law that had long been on its books.
    Last year, the pendulum shifted toward laws designed to restore trust in the community and local law enforcement. California and Connecticut passed different versions of the TRUST Act, designed to mitigate the harms caused by entanglement between state and local authorities and federal immigration law. These laws help improve the delicate relationships between immigrant communities and local law enforcement by limiting the instances in which local authorities can hold an immigrant at the behest of immigration officials. Other states, including Maryland, seem poised to join their ranks this year.
  • March 14, 2014
    Guest Post
    by Kanya Bennett, Director of Policy Development and Programming at the American Constitution Society, Angelyn Frazer, State Legislative Affairs Director at the National Association of Criminal Defense Lawyers, and Nkechi Taifa, Senior Policy Analyst at the Open Society Foundations
    In 1989, five African American and Latino boys were wrongly convicted of a heinous crime committed in New York City’s Central Park. Filmmakers Ken Burns, Sarah Burns, and David McMahon document their story in The Central Park Five. As PBS describes, The Central Park Five documentary “raises important questions about race and class, the failings of our criminal justice system, legal protections for vulnerable juveniles, and basic human rights.”
    And these “important questions” were certainly raised at the February 26th screening of the film hosted by the National Association of Criminal Defense Lawyers (NACDL), Open Society Foundations (OSF), and the American Constitution Society for Law and Policy (ACS). How could our criminal justice system fail on so many different levels, with law enforcement, prosecutors, and defense attorneys falling short? Decades later, why do young men of color remain vulnerable to the same fate as the Central Park Five? Can we point to criminal justice reform that will prevent another case like the Central Park Five?
    The Central Park Five featured our criminal justice system at its very worst. The police, with great help from the media, made vulnerable juveniles of color the poster children for violent criminal activities or what they coined a “wilding,” a narrative they held on to even when the evidence suggested another story. Prosecutors played detectives and advanced their case against the boys using this flimsy support. And a lawyer whose job it was to poke holes in the district attorney’s assertions allegedly fell asleep, almost every day, during trial.
  • February 14, 2014
    Guest Post

    by Brooke D. Coleman, Associate Professor, Seattle University School of Law

    Litigation reform is bandied about in an inevitable way. The narrative supporting such reform says that corporations are coerced into settling frivolous claims because the cost of litigating in federal court is so high. Further, the story goes, corporations do not want to be in the United States because the litigation risks are too much. This narrative of excessive cost and abuse is used to justify various litigation reforms, ranging from tort reform to attorney sanctions. The most recent entrant into the reform fray comes from the Committee on Rules of Practice & Procedure of the Judicial Conference of the United States. This rulemaking body has proposed amendments to the Federal Rules of Civil Procedure. These amendments would make it easier for parties to resist producing documents, provide greater protection to parties who fail to preserve key information, and limit the number of ways parties can request information from one another. By limiting access to information in this way, these proposed amendments to the discovery rules promise to lower litigation costs. 

    The problem with this narrative and the attendant reforms is that they are inaccurate. First, discovery costs are generally not too high in comparison to the stakes parties have in litigation.  Second, the argument that the proposed restrictions on discovery are justified undervalues the benefit of civil litigation.

  • February 11, 2014
    According due process of the law to death row inmates in Missouri is apparently a difficult constitutional mandate to embrace, at least for some state attorneys charged with carrying out death penalty sentences.
    In a piece for The Atlantic, Andrew Cohen detailed the execution of Herbert Smulls earlier this year, where state officials ignored repeated requests by defense attorneys to wait for the appeals process to expire before executing Smulls. The defense attorneys’ efforts were futile. As Cohen reports the state initiated the “lethal injection protocols” before the U.S. Supreme Court took action on Smulls’ final appeal for a stay of execution. “Smulls was pronounced dead four minutes before the Supreme Court finally authorized Missouri to kill him,” Cohen reported.
    Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, told ACSblog, “I am deeply concerned that the State of Missouri executed Herbert Smulls before the Supreme Court could rule on his claims. It gives the impression that justice plays second fiddle to getting it over.”
    Rust-Tierney’s concern is well grounded. As Cohen notes, U.S. Court of Appeals for the Eighth Circuit Judge Kermit Bye, as well as other federal court judges, have previously raised concerns about Missouri’s history of carrying out the death penalty.
    In late December, Judge Bye lodged a stinging dissent to an amended order in a case involving Missouri’s execution of Allen L. Nicklasson. A petition for the entire Eight Circuit to consider a stay of Nicklasson’s execution was declared moot, since the litigant, Nicklasson, had already been executed.
  • February 7, 2014
    The New York Times editorial board cited an amicus brief in Sebelius v. Hobby Lobby Stores authored by Frederick Mark Gedicks, Faculty Advisor for the Brigham Young University J. Reuben Clark Law School ACS Student Chapter. The paper calls for the Court to recognize the Establishment Clause’s precedent in the lawsuit against the Obama administration. Gedicks also authored an ACS Issue Brief examining the challenges to the Affordable Care Act’s contraception policy and laid out an argument against granting religious exemptions to for-profit corporations on ACSblog.
    Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, released a statement praising the Senate Judiciary Committee for its favorable report of Debo Adegbile to be the Assistant Attorney General in the Department of Justice's Civil Rights Division. In the statement, Ifill says Adegbile “has precisely the type of broad civil rights experience that is required at this pivotal moment in our country.”
    Last summer, the U.S. Supreme Court struck down a key provision of the Voting Rights Act that required federal review of voting laws in states with a history of voter discrimination. Adam Ragusea of NPR reports from Macon, Georgia on the repercussions felt by the city’s minority voters.
    Human Rights Watch explores the legal and ethical implications of a growing trend among probation companies to “act more like abusive debt collectors than probation officers.”
    The Honorable Robert L. Carter is in the NAACP Legal Defense and Educational Fund’s “Black History Month Spotlight.”