Guest Post

  • August 6, 2014
    Guest Post

    by Estelle Rogers, Legislative Director, Project Vote

    *This piece originally appeared on Project Vote’s Voting Matters.

    Forty-ninth anniversaries don’t usually garner much attention, but today a 49th anniversary—though filled with pathos—is worth commemorating. The Voting Rights Act was signed into law by President Lyndon Johnson on August 6, 1964. Often called the “crown jewel” of the civil rights movement, the Voting Rights Act has now lost a bit of its luster, tarnished by the Supreme Court’s decision in Shelby County v. Holder.

    The passage of the Voting Rights Act took barely four months after the President sent the bill to Congress; he called it “one of the most monumental laws in the entire history of American freedom.” And it passed by overwhelming bipartisan majorities in both chambers, foreshadowing the four reauthorization votes that reaffirmed its vitality over the years since. The last, in 2006, passed by a vote of 98-0 in the Senate and 390-33 in the House. But no more.

    Since the Supreme Court eviscerated preclearance, one of the most important tools written into the VRA to fight racial discrimination, the law’s historical bipartisan support seems but a distant memory.  Preclearance requires states and smaller jurisdictions with particularly troubling histories of voting discrimination to secure federal approval in advance for any voting changes. The law swept broadly, recognizing that even seemingly trivial statutory or administrative changes often operate to disadvantage racial and language minorities. One of its most significant advantages was to mitigate the necessity to file expensive and time-consuming lawsuits to redress voting discrimination on a case-by-case basis. As part of the VRA, it was reauthorized four times. But no more.

  • August 5, 2014
    Guest Post

    by Adrian Alvarez, the Goldberg-Robb Attorney, Public Justice

    *This post originally appeared on Public Justice’s blog

    A Florida judge’s ruling that the state’s constitutional amendment banning same-sex marriage is unconstitutional under the U.S. Constitution is the third order of its kind to come out in less than a month. But in a twist on the debate over the right to marry, the judge’s order came about not to allow a couple to marry, but to allow a woman to divorce her estranged spouse. And the issue is about far more than the right to divorce, it’s also about access to justice.

    In 2002, Heather Brassner entered a civil union with Megan Lane under Vermont’s civil union statute. Four years ago, the couple separated and Brassner is now in a committed relationship and wants to end her civil union. Although. Brassner sought a dissolution of her civil union in Vermont, because she is not a Vermont resident, Vermont courts won’t dissolve the union without Lane’s approval and Lane has gone missing.

    So Brassner sought relief in Broward County, Fla., the place she’s lived for the past 14 years. 

    In 2008, Florida voters passed a constitutional amendment that bans same-sex marriage in the state. The amendment not only bans marriage, but is written so broadly that it includes civil unions. The amendment says:

    Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.

    Unlike the right to marry, I know of no U.S. Supreme Court opinion recognizing a person’s right to divorce as part of an individual’s right to liberty and privacy. In fact, the Florida court that decided Brassner’s case based its decision on a federally protected right to marry, not any federally protected right to divorce.

  • August 4, 2014
    Guest Post

    by Reuben A. Guttman, Director, Grant & Eisenhofer; Member, ACS Board of Directors

    *This post originally appeared on The Global Legal Post.

    The ‘Hide No Harm Act’ is to be welcomed but why should corporate offenders be treated any differently from street criminals.

    'The Hide No Harm Act' puts a duty on a corporate officials not to knowingly conceal a corporate action that would pose a danger of death or injury to consumers and workers. United States Senators Richard Blumenthal (D-Conn), Tom Harkin (D-Iowa) and Bob Casey (D- Pennsylvania) have introduced legislation that, according to their press statement, 'would  make it a crime for a corporate officer to knowingly conceal the fact that a corporate action or product poses a danger of death or serious injury to consumers and workers.' The Senators call the Bill the 'Hide No Harm Act.' According to Senator Blumenthal 'this measure would criminally punish corporate officials who conceal that a product is dangerous.'  The proposed legislation would impose penalties of up to five years in prison because – as the Senators noted in their press statement – concealment by corporations has 'resulted in deaths and injuries.'

    Kudos to the three Senators for introducing this legislation. But wait just a second – I thought it was already a crime to intentionally injure or even negligently kill someone. Do not most, if not all, of the State penal codes make negligent homicide a crime? Surely the three Senators do not mean to say that absent this legislation, there is no vehicle – at least for some state prosecutors – to initiate a criminal prosecution of corporate officials who place revenue over safety and cause injury or death?  

    Do not misunderstand what I mean; the Hide No Harm Act is needed. In an age where we depend on corporations to provide the basic necessities of life, including food, health care, transportation and energy, the proposed legislation is an attempt to punish those who – perhaps for direct, or even indirect, economic gain – have compromised the delivery of life’s essentials and placed workers and consumers at peril. This legislation will be a powerful tool for federal prosecutors. And like any new tool, someone may pick it up and try it.  

    Corporations are fictions

    Yet, while the legislation is a positive step, it is thought provoking. Corporations, of course, are what lawyers call fictions; it is those individuals who control them that steer these global enterprises toward wrongdoing. Often these titans of capital do so because it is in their own economic interest. In an era where multinationals from drug companies to auto makers have knowingly concealed the risks of their products or the deficiencies of their services, why have state prosecutors been reluctant to pursue individual culprits with zeal? It is almost as if there is an unwritten rule that those who commit crimes in the course of their employment should be treated differently from the street criminal whose crime is so transparent that there actually may be a 'smoking gun'.  

  • August 4, 2014
    Guest Post

    by Sen. Bobby Joe Champion, District 59, Minnesota Senate

    As I look back over the 2014 Minnesota legislative session, there was a lot to be proud of. However, one of my most rewarding moments was watching my Expungement Bill (HF2576) pass both bodies and become law. The bill passed 58-4 with strong bipartisan support  – proving that when you have a good idea and can work in a bipartisan manner, our state legislature can get things done.

    Nearly one in five Minnesotans has an arrest or criminal record. Because of the internet, the use of criminal record checks by employers and landlords has skyrocketed. Often a person could have been arrested but not charged, or their charges were dropped, or charged but not convicted, but arrest records would still show up on the internet and in reports. Unfortunately, the online records are often inaccurate, incomplete or misinterpreted.

    It is very difficult for a former offender to integrate into our communities when an overwhelming majority of employers refuse to hire anyone with an arrest or criminal record, regardless of how long ago it was or the crime’s relevance to the position for which an applicant is being considered. A key provision in my expungement bill will change that. It requires business screening services to delete expunged records if they know a criminal record has been sealed, expunged or is the subject of a pardon.

    In addition, the expungement bill passed in 2014 will allow people convicted of misdemeanors, gross misdemeanors and some low-level felonies to get their records sealed. My expungement bill maintains public safety while providing redemptive justice for all Minnesotans. Sealing or limiting access to criminal records is an important component in successful reintegration into society.

    Although current state law allows judges to expunge the criminal records of certain offenders, they are still showing up in many background checks because a state Supreme Court decision ruled that judges could expunge only court records, not those collected by state agencies such as the Bureau of Criminal Apprehension or Department of Human Services. My expungement bill also addresses this problem and allows judges to expunge executive branch records as a means to a real remedy.

    I am proud the 2014 Expungement bill that passed in Minnesota will help remove many of the barriers associated with criminal background checks. Without this change, many Minnesotans who have taken honest steps to improve their lives are being denied employment, housing and educational opportunities. 

  • August 1, 2014
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown Law; Co-Faculty Advisor, Georgetown University Law Center ACS Student Chapter

    Imagine a government warning on tobacco products that gave nearly equal prominence to both the pleasures and pains of using tobacco products. The "warning" would tell citizens that whether they should use tobacco products or not was – despite the government's long practice of recommending against such use – actually a pretty close case. Tobacco use is just so pleasurable, it turns out, that its risks – of bad health, of early death – might be worth it.

    Or imagine a parent saying the same thing to her child: here are the risks of using tobacco products, she'd say, but here on the other side are the wonderful pleasures. You make the call; it's too close for me to judge.

    Despite its strangeness, this is exactly the kind of statement the White House and the Food and Drug Administration have collaborated in propounding in the context of a proposed rule deeming certain tobacco products subject to FDA regulation under the Family Smoking Prevention and Tobacco Control Act. Economists from the FDA and the White House's Office of Management and Budget published a study purporting to estimate the amount by which the health benefits of tobacco use reduction are offset by a loss of the pleasure of using such products. When the FDA's proposed rule on tobacco products went to the White House for review, White House economists, rather than placing this study in the dustbin where it belonged, doubled down on its strange analysis. Indeed, they ended up increasing the FDA's estimate of the extent to which the "lost pleasure" associated with reducing tobacco use offsets the health benefits to be gained.