Guest Post

  • 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.  

  • March 16, 2015
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University

    Decades ago, the late constitutional scholar Charles Black offered an important functional justification for giving federal courts the power to say “no” to unconstitutional laws and executive actions: It is the judicial power to say “no” that gives the judicial power to say “yes” its legitimating force. Government benefits mightily when a judicial opinion upholding official action puts at rest, if not an underlying policy debate, then at least the public’s interest in prolonging a constitutional battle about whether the challenged action is at least lawful.  Such seems to have been the result in 2011when the Supreme Court upheld the Affordable Care Act.  A judicial imprimatur can have this beneficial impact, however, only if the public understands that courts make independent judgments.

    For this reason, despite powerful legal arguments that U.S. District Court Judge Andrew Hanen should not have reached the merits of any issue regarding the Department of Homeland Security’s program of “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), the country may be better off once a court does so. My difficulty with Judge Hanen’s massively overwritten 123-page opinion in Texas v. United States is not that Texas got past threshold procedural barriers to judicial review. It is that, in an ideologically driven opinion, Judge Hanen simply gets the law wrong.

    As a formal matter, Judge Hanen grants Texas the preliminary injunction it seeks because he deems Texas likely to succeed in challenging the DAPA policy on a procedural basis, namely, publication of the policy without an opportunity for public comment under the Administrative Procedure Act. His conclusion on this point is wrong, as I discuss below, but perhaps foreordained by a more glaring error. Although Judge Hanen purports to rule only on procedural grounds, his opinion makes crystal clear that he thinks DAPA exceeds the DHS Secretary’s legal authority. His analysis is framed by an overarching narrative about how a supposedly feckless federal government is victimizing the helpless states by simultaneously hoarding to itself all authority over immigration and then abandoning a constitutional duty to protect the states from the burdens imposed by the presence in the U.S. of millions of undocumented immigrants. (If you want to see what judicial empathy for a plaintiff looks like, reading Judge Hanen’s 47-page analysis of Texas’s standing to sue would make a good start.) 

    Judge Hanen’s framing is doubly unfortunate. First, it ignores the ways in which the DAPA program would boost state economies and accompanying tax revenues. As 14 states and the District of Columbia have argued in an amicus brief supporting DAPA: “When immigrants are able to work legally—even for a limited time—their wages increase, they seek work compatible with their skill level, and they enhance their skills to obtain higher wages, all of which benefits State economies by increasing income and growing the tax base.” Moreover, Judge Hanen’s narrative of states as victims leads him to four outright mischaracterizations of DAPA.

    To see these misconceptions starkly, it is helpful to consider that the measures DHS Secretary Jeh Johnson implemented through two memoranda on November 20, 2014 effectively accomplish three things. First, they establish national immigration enforcement priorities, instructing all immigration agencies within DHS as to the highest priorities for detention and removal, as well as the criteria for a new program of deferred action for parents of U.S. citizens and other legally permanent residents. With or without DAPA, DHS’s immigration components would be free to follow these priorities in their law enforcement activities.

  • March 13, 2015
    Guest Post

    by Jamie Hoag, Co-President of the ACS Boston Lawyer Chapter

    Almost two years after the Boston Marathon bombings, the trial of the accused bomber, Dzhokhar  Tsarnaev, is underway in a federal courthouse about two miles from the scene of the horrific events of that April day. 

    Tsarnaev was charged with 30 federal crimes, 17 of which carry a possible death sentence.  A lengthy jury selection process delayed the start of the trial, with approximately 1,350 individuals completing juror questionnaires.  The defense filed four motions to change the venue, arguing that the widespread pre-trial media coverage and universal emotional impact of the bombings made a fair – and constitutionally sound – trial impossible.  Each of these motions failed, and rightfully so.  Once it began, the trial took an unexpected turn when Tsarnaev’s attorney admitted her client’s guilt during opening statements, surprising everyone – except, hopefully, her client.  While the prosecution still has to prove its case, this trial is largely now about whether Tsarnaev will live or die.

    The defense’s efforts to move the trial and its recent admission of their client’s guilt raise several questions.  Would the defense lawyers have admitted guilt so quickly if the trial had been held in a different venue?  Likely so.  While, as noted, the defense unsuccessfully tried four times to have the trial relocated, it is highly likely that the focus would still have been on saving their client’s life, rather than arguing his innocence.  The burden is on the prosecution, of course, but the evidence against Tsarnaev is overwhelming, from a video showing him set the backpack containing the bomb near a crowd of marathon spectators to his identification by a victim who lost both of his legs.  Moving the trial from Massachusetts would not have lessened this evidence’s weight.

    In deciding to admit guilt, the defense team also likely had in mind research suggesting that jurors selected for death penalty cases are more prone to find guilt because the attention given to the sentencing phase during the pre-trial voir dire process suggests that there will be one.  If that research is accurate – a topic beyond the focus of this short post – that bias would exist in Baltimore as well as in Boston.  (Interestingly, in 2005 the Massachusetts Governors Council on Capital Punishment – commissioned by then-Governor Mitt Romney to consider ways to make the imposition of a state death penalty “as infallible . . . as humanly possible” – proposed in its report that separate juries be empanelled for the guilt and sentencing phases of a capital trial to address this potential bias.)  Given the evidence against their client, it is likely that the defense strategy to admit guilt and focus on saving their client’s life would have been the same if the trial was held hundreds of miles from the scene of the marathon tragedy.