Guest Post

  • 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 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
    Guest Post

    by Erwin Chemerinsky and Samuel Kleiner. Chemerinsky is Dean of the University of California, Irvine School of Law; Kleiner is a fellow at the Yale Law Information Society Project.

    In the face of an ongoing humanitarian crisis as families are broken up by deportations, President Obama’s bold executive action is legally permissible and morally necessary. The angry Republican rhetoric is misguided both as a matter of constitutional law and as a matter of desirable social policy.

    In terms of the Constitution, President Obama drew a careful distinction based on what he can and can't do without congressional action. The President cannot bestow citizenship on individuals except as authorized by law. President Obama’s executive order does not attempt to do this. 

    But what a president may do is set enforcement priorities, choosing who to prosecute or who to deport. No government brings prosecutions against all who violate the law. Resources make that impossible and there are laws on the books that should not be enforced. Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States.   For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses to focus deportations along certain criteria.

    In fact, as recently as two years ago, the Supreme Court in United States v. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the President to choose whether or not to bring deportation proceedings. On numerous other occasions, the Supreme Court and lower federal courts have recognized prosecutorial discretion to decide when to bring criminal prosecutions or immigration enforcement actions.

    The overblown Republican rhetoric fails to recognize that what President Obama announced was enforcement priorities. He has instructed the executive branch, which is under his control, to prioritize deportation proceedings against felons and those who pose a public danger, but not to deport parents of young children who are United States citizens and who present no threat.   Such discretion is clearly and unquestionably part of the president’s power.     

    Nor is there any realistic chance that any court will find otherwise. No one is likely to have standing to challenge President Obama’s policy. And even if a court were to address the issue, the law is well established that presidents have discretion to decide whether to prosecute or bring deportation actions. Contrary to the Republican rhetoric, President Obama is violating no law and is acting within his constitutional authority.

  • November 21, 2014
    Guest Post

    by Lisa HeinzerlingJustice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. The author was a political appointee at the Environmental Protection Agency from January 2009 to December 2010. She served on the EPA Presidential Transition Team in 2008.

    The Environmental Protection Agency is under court order to issue, by December 1, a proposal to retain or revise the national air quality standards for ground-level ozone. Scientific studies have linked ozone, also known as smog, to a variety of adverse effects on public health and welfare. EPA's expert staff and its outside scientific advisors have recommended, based on this scientific evidence, that EPA set new, stronger standards for ozone. The Clean Air Act requires that air quality standards – "primary" standards for public health, "secondary" standards for public welfare – be set at levels "requisite to protect" public health and welfare. A central question for the proposal to be issued by December 1 is whether the current air quality standards for ozone, set at 75 parts per billion of ozone in the ambient air, adequately provide such protection.

    At the moment, EPA's preferred approach to the ozone standards awaits White House clearance. EPA has sent a regulatory package – likely including, as is customary, the proposed standards, a formal explanation of EPA's choices, and an economic analysis of the proposal – to the White House for review. Under executive orders issued by Presidents Bill Clinton and Barack Obama, the President has asserted the authority to review significant agency rules like the ozone standard and to reject or revise them if they are not consistent with his policies or priorities. President Obama exercised this self-given power previously in the context of ozone, when in 2011 he ordered then-EPA Administrator Lisa P. Jackson to withdraw stronger, revised national air quality standards for ozone. As I will explain, President Obama's past exercise of power hangs over the current decision whether to revise the ozone standards.

    Before President Obama ordered Administrator Jackson to withdraw the revised ozone standards she had developed, the EPA under Administrator Jackson had been working on the revised standards for years, indeed since the day President Obama took office. Revision was necessary, in EPA's view, because standards set during the administration of President George W. Bush had departed from the scientific evidence indicating that stronger rules were necessary to protect public health and welfare. Indeed, EPA's scientific advisors on air quality had reacted to the Bush-era standards by issuing a pointed, unsolicited rebuke, stating that the advisors did not endorse the Bush standards. Strengthening the Bush-era ozone standards was a core EPA priority in the early days of the Obama administration, offering an opportunity both to protect public health and welfare and to return the agency to scientifically sound decision making. No one would have guessed, then, that President Obama would eventually order Administrator Jackson to back off and leave the Bush-era standards in place. But that's what happened.

  • November 21, 2014
    Guest Post

    by Thomas NolanAssociate Professor of Criminology & Director of Graduate Programs in Criminology, Merrimack College; former Senior Policy Advisor at the Department of Homeland Security’s Office of Civil Rights and Civil Liberties; former lieutenant, Boston Police Department

    Attorney General Eric Holder recently announced an initiative sponsored by the Department of Justice through the Bureau of Justice Assistance and the Office of Community Oriented Police Services that provides guidance and support for law enforcement agencies in their response to protesters who are engaging in constitutionally protected activities, particularly those activities protected by the First Amendment such as freedom of speech, freedom of assembly, and freedom of the press. The provision of this guidance appears to coincide with the expected announcement of the findings of a grand jury hearing evidence in the case of the death of Michael Brown at the hands of Officer Darren Wilson in Ferguson, Missouri on August 9, 2014.

    In the aftermath of the shooting death of Brown, the world watched as protesters took to the streets in Ferguson and were met with a hyper-exaggerated, highly militarized response from the police in Ferguson that unilaterally trounced the First Amendment rights of the protesters and unequivocally suspended the provisions of the United States Constitution that guarantee the protections of free speech, free assembly, and a free press.  The world saw law enforcement officers engage in a shameless and hysterical display of unrestrained force against a relatively small group of largely peaceful protesters using sound cannons (designed for use in wars by the military), tear gas (chemical weapons banned by the Geneva Conventions for use during war), rubber bullets (potentially lethal), smoke bombs and grenades, stun grenades (potentially lethal), wood bullet projectiles, pepper pellet rounds (of the type that killed student Victoria Snelgrove in Boston in 2004), and bean bag rounds (also potentially lethal).