Guest Post

  • March 27, 2015
    Guest Post

    by Emily J.Martin, National Women’s Law Center

    On Wednesday, the Supreme Court delivered an important victory for pregnant workers, when in a 6-3 ruling it revived Peggy Young’s pregnancy discrimination case against UPS and sent it back to the lower courts for further proceedings.  In so ruling, the Supreme Court declined UPS’s invitation to read a key piece of the Pregnancy Discrimination Act completely out of the statute books.  This decision should put employers on notice that when they exclude pregnant workers with medical needs from accommodations that they make for workers with disabilities or injuries, they do so at their legal peril.  Nevertheless, the Court’s decision also requires a somewhat unpredictable and fact-intensive analysis of these sorts of pregnancy discrimination claims.  As a result, individual pregnant women may still face real uncertainty as to their workplace rights, and individual employers may choose to take their chances in litigation rather than promptly providing accommodations to women who need them.  Congress should act now to affirm and strengthen this decision, to ensure that no pregnant woman is forced to choose between her job and the health of her pregnancy.

    Peggy Young’s case arose more than seven years ago, when she became pregnant while working as a UPS driver.  Her doctor recommended that she avoid lifting more than 20 pounds during her pregnancy.  When UPS learned of this restriction, it refused to let her continue to do her job, even though in fact she only rarely did any heavy lifting.  UPS also refused to give her a light duty assignment, even though it provided such accommodations to drivers with on-the-job injuries, drivers with disabilities as defined in the Americans with Disabilities Act, and drivers who had lost their commercial driver’s licenses for health reasons or other reasons—including DUI convictions.  As a result, Peggy Young was forced onto unpaid leave for the duration of her pregnancy, and lost her UPS-provided health insurance.  She sued, arguing that UPS had violated the Pregnancy Discrimination Act (PDA) when it refused to provide her the same sorts of accommodations it provided to others.  But despite the clear language of the PDA requiring employers to treat pregnant workers the same as those “similar in ability or inability to work,” she lost in the lower courts, which held that UPS’s accommodation rules were “pregnancy blind” and thus did not violate the law.

  • March 27, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst at Open Society Foundations

    I have spent over 25 years working on criminal justice reform issues and the recent Bipartisan Summit on Criminal Justice Reform, co-hosted by an unlikely alliance of Van Jones, Newt Gingrich, Donna Brazile and Pat Nolan, was absolutely colossal. Who would have imagined that a huge hotel ballroom would be packed as early as 8:00 a.m. with federal and local legislators, high administration officials, policy experts, criminologists, researchers, faith leaders, academicians, formerly incarcerated people and millennials – all from both sides of the aisle? The event was an ambitious undertaking – a full day jam-packed with featured presentations, panel workshops, video presentations, and luncheon keynote conversations, with U.S. Attorney General Eric Holder, Secretary of Labor Tom Perez, and Georgia Governor Nathan Deal all sharing their words of wisdom on criminal justice reform. Democratic Members of Congress spoke at the Summit in person, and Republican Members, along with President Barak Obama, made remarks via video. 

    As I sat in the audience, I reflected that criminal justice was no longer the lightening rod it was two decades ago, thanks to a more recent, huge paradigm shift.  Twenty years ago, Republicans and Democrats alike were horrible on criminal justice issues.  Candidate Bill Clinton left the campaign trail to oversee the execution of a mentally challenged man in Arkansas. Every year or so during the early 90s we fought against unwieldy omnibus crime bills, culminating in the “granddaddy” of all the crime bills – the Violent Crime Control and Safe Streets Act of 1994.  This bill expanded the federal death penalty to a level unprecedented in modern times, gutted habeas corpus reform, eviscerated the exclusionary rule, allowed for the prosecutions of 13-year olds as adults, and refused to address the crack/powder sentencing disparity, while implementing a slew of additional mandatory minimum sentences and offering monetary incentives to states to lock up more and more people for longer periods of time in exchange for loads of money to build more prisons. 

  • March 26, 2015
    Guest Post

    by Sarah Hunger and Meredith Kincaid, Associates at Jones Day.  Jones Day represents The National Association of Black Veterans, Swords to Plowshares, Veterans Defense Project, and The Constitution Project in an amicus brief that the authors filed in support of Mr. Lockhart.  Mr. Lockhart is represented by Equal Justice Initiative.

    In 2010, an Alabama jury voted unanimously to spare the life of Courtney Lockhart, an Iraq war veteran facing the death penalty for a murder he committed while suffering from combat-related mental health issues.  Several months later, and upon consideration of evidence never shown to the jury, the elected judge overseeing Mr. Lockhart’s case sentenced him to death.

    In Alabama, the jury’s role at capital sentencing is merely advisory, and the imposition of the death penalty hinges upon specific, written findings of fact made by elected judges.  Under this regime, Alabama courts are empowered to make these factual findings “based upon information known only to the trial court and not to the jury.”  Adhering to this doctrine, Mr. Lockhart’s sentencing judge overrode the jury’s unanimous recommendation of life based upon information never presented to the jury, including evidence deemed inadmissible in a suppression hearing.

    In January, Mr. Lockhart filed a petition for certiorari to the Supreme Court arguing that his death sentence, as well as the Alabama regime that authorizes it, violates the Sixth and Eighth Amendments.  The Supreme Court’s review of this important and recurring issue is long overdue.  In the past decade, at least 28% of death row inmates in Alabama were sentenced via judicial override, and more than 100 inmates now sit on death row because of its use.  Nevertheless, the Supreme Court has not reviewed Alabama’s death penalty regime since 1995, well before it announced in Apprendi that the Sixth Amendment precludes judges from making findings that authorize an increase in the maximum punishment.

    Most notably, as Mr. Lockhart and amici assert, judicial override as practiced in Alabama deprives defendants of their Sixth Amendment right to trial by jury by making the heightened punishment of death dependent upon judicially found facts.  This means, in other words, that Alabama defendants are not eligible for the death penalty until the trial judge makes sufficient findings of fact to support it – a remarkably clear-cut Apprendi violation.  Alabama’s death penalty regime, which gives judges the unilateral power to impose death sentences on individuals that juries have voted to spare, should no longer go unchecked.  The Court should grant Mr. Lockhart’s pending petition.

  • March 23, 2015
    Guest Post

    by Suja A. Thomas, Professor of Law at the University of Illinois College of Law; author of The Other Branch: Restoring the Jury’s Role in the American Constitution (forthcoming Cambridge University Press).  This post is based on her essay, Text-Bound Originalism (and Why Originalism Does Not Strictly Govern Same Sex Marriage).

    Many assume originalism has an important place in the debate about whether states can prohibit same sex marriage.  As the argument goes, the original public meaning of the Equal Protection Clause was the protection of African-Americans, so there is no constitutional barrier to states' prohibition of same sex marriage.  In deciding that states could prohibit same sex marriage, a panel of the U.S. Court of Appeals for the Sixth Circuit recognized the relevance of this originalist interpretation of the Equal Protection Clause along with other arguments for permitting the prohibition of same sex marriage—all of which the Supreme Court will soon consider.

    But does originalism have a significant place in the interpretation of the Equal Protection Clause and thus in the same sex marriage decision?  Those advocating the use of originalism believe that originalism must strictly govern the interpretation of the Constitution.  Thus far in arguing for this originalist methodology, however, they have not acknowledged that the text of the Constitution explicitly requires the application of originalism for the interpretation of one provision in the Constitution—the Seventh Amendment.  In ignoring this textual inclusion of originalism and corresponding textual exclusion of originalism elsewhere, originalists have not shown why originalism should strictly govern other parts of the Constitution.

  • March 20, 2015
    Guest Post

    by Christopher R. Poulos, President, ACS University of Maine School of Law Student Chapter; Chair, Law Enforcement Assisted Diversion Program Subcommittee, City of Portland, Maine.

    The United States now has more incarcerated citizens both in raw numbers and per capita than any other nation on Earth.  Over two million people are currently incarcerated in the United States, up from around 200,000 as recently as 1975.  The vast majority of prisoners are economically disadvantaged and lack college degrees, and many did not graduate from high school.  The number of minorities incarcerated, particularly black males, is disproportionately larger than their percentage of the general population.  Liberals – and now conservatives, including the Koch brothers and Newt Gingrich – are finally calling attention to the long ignored issue of mass incarceration.  The current focus on this matter by both ends of the political spectrum makes this a ripe time for positive change.

    One way to immediately begin addressing the daunting issue of criminal justice reform generally – and mass incarceration specifically – is to divert eligible low-level offenders away from the criminal justice process entirely.  The program is called Law Enforcement Assisted Diversion (LEAD), and one of its many objectives is to transform and transcend the relationship between police and the residents they serve into something more positive and less adversarial.  The idea began in Seattle and has also taken root in Santa Fe.