Access to Justice

  • January 24, 2014
    Guest Post
    by Robert L. Weinberg, Adjunct Faculty, George Washington University Law School and University of Virginia School of Law; former President, District of Columbia Bar; former Partner, Williams and Connolly LLP
     
    On July 3, 2013, the Seventh Circuit rendered the first appellate opinion on the issue of whether Twombly and Iqbal may be applied to adjudicate the sufficiency of federal criminal indictments in United States v. Vaughn. Coincidentally, that same day, ACS released my Issue Brief, “Applying the Rationale of Twombly to Provide Safeguards for the Accused in Federal Criminal Cases.” My Issue Brief analyzed the sufficiency of indictments under the very same criminal conspiracy statute involved in the Seventh Circuit case – 21 U.S.C. Section 846.
     
    In Vaughn, the Seventh Circuit upheld the sufficiency of a bare-bones drug conspiracy indictment charged under 21 U.S.C. Section 846, which would plainly have been invalidated if the court had followed the Twombly holding that the allegation of a “conspiracy” is merely a “legal conclusion” and not a “factual allegation.” Twombly’s holding on this point was reaffirmed in Iqbal. Twombly had dismissed a civil treble damages complaint for violation of a criminal conspiracy statute, the Sherman Antitrust Act.  As Iqbal noted:
    “The Court held the plaintiffs’ complaint deficient under Rule 8.  In doing so it first noted that the plaintiffs’ assertion of an unlawful agreement was a ‘legal conclusion’ and, as such, was not entitled to the assumption of truth. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce.
     
    The Seventh Circuit rejected the application of the Supreme Court’s Twombly and Iqbal rulings to criminal indictments, on the theory that the Circuit should not “adopt the civil pleading standards articulated by the Supreme Court…to assess sufficiency of a criminal indictment.”
     
  • January 8, 2014
    Guest Post
    by Nkechi Taifa, Senior Policy Analyst, Open Society Foundations
     
    This post originally appeared on Open Society Voices.
     
    In December, President Obama commuted the sentences of eight people serving harsh prison terms on crack-cocaine convictions. Why?
     
    Until recently, those who possessed just five grams of crack cocaine received the same five-year sentence as those who distributed 500 grams of powder cocaine; those who used 50 grams of crack received the same sentence as traffickers of 5000 grams of powder cocaine. This 100-to-1 quantity ratio between two chemically identical substances disproportionately hurt African Americans and Latinos because of federal law enforcement’s top-heavy focus on inner-city communities.
     
    The president’s commutations are a major step forward in the ongoing saga to end injustice in cocaine sentencing. This newest chapter comes in the wake of other adjustments that have successfully chipped away at these biased disparities. Three years ago, the Fair Sentencing Act reduced the discredited 100-to-1 ratio between crack and powder cocaine to the more reasonable, but still insufficient, 18-to-1 ratio. The U.S. Sentencing Commission amended its guideline ranges to assure consistency with the provisions of the new act and applied its guidelines retroactively.
     
    The Supreme Court, consistent with revised Department of Justice policy, agreed that cases pending in the pipeline between passage of the new law and sentencing would receive the benefit of the new law. However, only Congress or the president can remedy the plight of the remaining people whose harsh sentences occurred prior to the Fair Sentencing Act.
     
    While momentous, the eight commutations represent only the tip of the iceberg of cases left behind when the Fair Sentencing Act became law. Several thousand cases of men and women in similar situations still await relief. Obama acknowledged that his commutations were an important first step and that “it must not be the last.”
  • December 16, 2013

    by Samantha Batel

    At the beginning of the recent fall semester, Professor Russell Christopher asked the students in his Criminal Procedure class at the University of Tulsa College of Law to raise their hand if they had heard of Gideon.  Out of the 40 second and third year students present, only two hands went up.

    Clarence Earl Gideon, the man to which Professor Christopher was referring, was the Plaintiff in the 1963 landmark Supreme Court case Gideon v. Wainwright, which held that the Sixth Amendment’s guarantee of counsel applies to the states.

    This year, Gideon celebrates its 50th anniversary. Law schools across the country have commemorated the case for both legal instruction and historical edification. This milestone, however, has also been met with a critical eye. Indeed, the real topic of study is not what Gideon was meant to accomplish, but whether it has succeeded.

    In her new book, “Chasing Gideon: The Elusive Quest for Poor People’s Justice,” author Karen Houppert describes a crisis in our nation’s courts. Discussing her work with the ACS Student Chapter at Harvard Law School, Ms. Houppert explained that the war on drugs, mandatory minimum sentencing, tough-on-crime policies and pre-trial incarceration have overtaxed our public defense system. She described one defendant in Spokane, Washington who was acquitted of vehicular manslaughter in 2004 only after the public defender was able to obtain a delay in the trail so that he could fully investigate the case, something that would have been impossible without the delay due to the defender’s caseload. That same year, a twelve-year-old boy pled guilty to a class B felony having never had an independent interview with his public defender, who was handling 440 other cases.

  • December 13, 2013

    by Caroline Fredrickson, ACS President

    Robert F. Kennedy’s tragic presidential run – he was assassinated June 5, 1968 – was also extraordinary in that a major political figure was trying to focus the nation’s attention on the most vulnerable among us, those living in dire poverty. One of his top aides, Peter Edelman was instrumental in RFK’s efforts to arouse the national conscience about poverty. Edelman is now a Georgetown law school professor and a nationally recognized figure, devoted to improving our society by helping the large numbers of Americans who have for far too long been overlooked.

    And, until recently, Peter was also ACS’s Board Chair. His term ended this month, but he remains on the Board. His leadership and guidance as Board Chair were deeply appreciated and we will look forward to his continued partnership with ACS for years to come.

    Peter’s illustrious career has included not only his work for RFK, but also as Issues Director for the late Sen. Edward Kennedy’s presidential campaign and service in the U.S. Department of Justice as Special Assistant to Attorney General John Douglas.

    But Peter above all, has devoted great amounts of energy and time to fighting poverty. If you’ve not done so, you should read Edelman’s 2012 book, So Rich, So Poor for a compelling, albeit disheartening, examination of why ending poverty in this nation has been a constant uphill battle. Bill Moyers called the book a must-read “for anyone who wants to understand why, in one of the richest nations in the world, millions of people, even those with jobs, are teetering just a medical bill or missed paycheck from disaster.”

    We’re grateful Peter has given some of his remarkable energies and talent to support and advance the work of ACS.

  • December 13, 2013

    by Caroline Fredrickson, ACS President

    Since its founding in 2001, ACS has enjoyed the great fortune of a consistently strong Board of Directors, with some of the nation’s leading academics, practitioners and activists serving. At our recently scheduled Board meeting we said goodbye to a few long-serving members and selected a new Board chair, David M. Brodsky.  

    David’s legal career is a highly distinguished one. He was formerly a partner of the global law firm Latham & Watkins LLP. Some of his duties included advising foreign and domestic companies with respect to investigations of suspected criminal conduct, complex securities litigation, including class actions and other regulatory investigations and enforcement actions.   

    He is now the sole principal of a mediation and arbitration firm in New York City. Before launching Brodsky ADR LLC to help effectively solve complex disputes, David spent decades building a nationally recognized reputation as one of this nation’s greatest trial lawyers.

    There’s more to the story. David has served as a federal prosecutor, a general counsel to an investment bank and on numerous pro bono boards. His energy and dedication to the legal profession and to making justice accessible is extraordinary. Indeed his very rich, varied legal career has won him honors from numerous national legal publications, being consistently named among the top 100 “Super Lawyers” in New York and listed in the 2012 Best Lawyers in America survey.

    David, in an eloquent ACSblog post, paid tribute to some of ACS’s long-serving Board members whose terms recently ended. But ACS members, supporters and friends should get to know David. He’s an inspiring figure and a tireless advocate of ACS’s work. We’re grateful he’s taken a leadership role on the Board.  

    [image via Brodsky ADR LLC]