Guest Post

  • July 11, 2016
    Guest Post

    by Atiba R Ellis, Professor, West Virginia University College of Law @atibaellis

    *This post is part of the ACSblog Symposium on Policing and Race Relations

    When ACS asked me to write this blog, I had in mind a commentary that compared and contrasted the three views of policing and the nature of the leeway allowed the police in targeting high crime areas. But then, in the course of three days, we learned of the deaths of Alton Sterling and Philando Castile, the views expressed in Utah v. Strieff took new context.

    The targeting by the police can have lethal consequences. In the unsettling and graphic video of the shooting of Alton Sterling and the similarly graphic video of the aftermath of the shooting of Philando Castle, we see those consequences clearly. These videos show us the consequences immediately. At least one commentator called Sterling’s death a “modern day lynching.”

    None of this denies that responsible policing does exist. As the recent shootings of police officers in Dallas remind us, most police abide by the law and put their lives on the line to protect our freedoms. Indeed, the officers killed in Dallas died protecting a peaceful protest of the deaths of Sterling and Castle.

    But it is important to draw a distinction between lawful policing and police abuse that occurs with near impunity, especially when such abuse is disproportionately directed at communities of color. And it is important to critique legal doctrines, as the one extended in Strieff, which reinforce this impunity and contribute to the disproportionate state-sanctioned abuse of communities of color.

    To understand this, we must understand the world in which this abuse takes place. When men of color die at the hands of police for activities as innocuous as selling CDs or reaching for one’s registration during a police stop, it comes as no surprise that those living in communities of color feel targeted. The deaths of Mr. Sterling and Mr. Castle follow a long list of high-profile deaths at the hands of the police, including Eric Gardner, Tamir Rice and Sandra Bland. The investigative data, sociological data and lived experience in African American communities show that black men are at greater risk of being shot by police than other demographic categories. Thus, in this world, it comes as little surprise that communities of color feel that law has few bounds when it comes to the lives and deaths of Black and Brown bodies.

  • July 11, 2016
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago

    *This post originally appeared in Huffington Post

    In a radio address to America in 1931, George Bernard Shaw startled his audience with the following proposition: “Every person who owes his life to civilized society, and who has enjoyed . . . its very costly protections and advantages, should appear at reasonable intervals before a properly qualified jury to justify his existence,” which, Shaw added, should be “summarily and painlessly terminated if he fails to justify it.” 

    I do not advocate such a program. But every one of us who enjoys the hard-bought protections and advantages of our system of self-governance has a responsibility to justify his or her existence under it. Abner J. Mikva, who passed away on the Fourth of July at the age of 90, would clearly have passed this test with flying colors.

    The Hon. Abner J. Mikva grew up in Milwaukee during the Depression. After serving as a navigator in World War II, he attended college and then entered the University of Chicago as a law student in 1948.

    In his application for admission to law school, Ab declared: “I am fired up with an ambition and a desire to do well in a field of endeavor in which I can apply my reasoning powers as well as the formal education I have acquired. The logical answer is law.” Ab emphasized, however, that although “my plans for applying the training of law are not yet crystallized, I have a desire to enter public service.”

    Inspired by the idealism of Democratic reform candidates Adlai Stevenson and Paul Douglas, who were running for Governor and Senator respectively in Illinois in 1948, Ab, a first-year law student, decided to volunteer to do some election work in Chicago’s 8th Ward. This led to an exchange with a ward committeeman that demonstrated the conflicting worlds of an entrenched political organization and an idealistic young liberal: 

    “Who sent you?” asked the committeeman.
    “We don’t want nobody nobody sent. We ain’t got no jobs.”
    “I don’t want a job,” said Ab.
    “We don’t want nobody that don’t want a job. Where are you from anyway?”
    “University of Chicago.”
    “We don’t want nobody from the University of Chicago in this organization.”

  • July 8, 2016
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    *This post is part of the ACSblog Symposium on Policing and Race Relations

    Dallas Police Chief David Brown demonstrated dignity, poise, humility, and courage in his remarks following the shooting deaths of five police officers in Dallas, Texas on Thursday, July 7. As of this writing, an unknown number of gunmen had opened fire in a sniper attack on police officers who were on duty at a protest march following the deaths of Alton Sterling in Baton Rouge, La. on Tuesday, July 5 and Philando Castile in Falcon Heights, Minn. on Wednesday, July 6.  It was indeed heartening to see the courage Dallas police officers displayed in responding to this horrific attack—scores of officers instinctively mobilized to confront the gunmen while shielding the protesters from harm.         

    Compounding the tragedy in Dallas is the department’s support, endorsement and respect for the rights of individuals and groups to speak freely, to assemble and to protest. The Dallas police department, unlike too many of its counterparts elsewhere, hold First Amendment rights as sacrosanct, and see it as a duty and a responsibility to protect individuals and groups in the exercise of their constitutional rights. Thus it is a tragic irony that such an unspeakable atrocity should occur in a city like Dallas.       

    Chief Brown’s courage and the courage of Dallas police officers were not in evidence however, in Baton Rouge or in suburban Minnesota where police officers shot and killed two African American men, the latest such killings that have become for many the routinized manifestations of the fractured relationship between the police and communities of color in the United States. A homeless man had called police in Baton Rouge after Sterling had apparently rebuffed his asking for money, and responding officers wrestled Sterling to the ground and shot and killed him. In Falcon Heights, a police officer stopped Castile’s vehicle for a defective taillight and the officer shot and killed Castile as he reached for his diver’s license and registration.          

    That we have become inured to events such as these senseless and unnecessary killings of African American men and women by police makes them no less consequential. Whether it is Staten Island; Hayward, California; Baltimore; North Charleston, SC.; Waller County, Texas; Cleveland; or Ferguson, Mo., we are (and have been) witness to the deterioration of the perceived legitimacy of the law enforcement function and its continuing viability in a constitutional democracy.          

  • July 8, 2016
    Guest Post

    by Amy Larsen, joint-degree student at NYU Law and the Harvard Kennedy School of Government, outgoing president of NYU Law's ACS Student Chapter and a Next Generation Leader.

    Our democracy is, and will always be, a work in progress. Accordingly, public service requires both an urgency of now, and a patience with the longer term trajectory of making change, whether in the context of issues like criminal justice reform, climate change or consumer protection. While grand victories can be won, more often, public service consists, rather mundanely in Consumer Financial Protection Bureau Director Richard Cordray's words, of a "steady persistence of unsung, everyday improve the quality of life for others." In short, heeding the call to public service is often a halting and unceremonious, yet deeply rewarding, labor of love.

    Cordray’s speech reminds us that the messy and imperfect nation-perfecting process requires bringing our best selves to this honorable undertaking. Cordray offers the insights of someone who has gracefully navigated the pressure cooker of American politics, demonstrating conviction, endurance, and humility in his own life and in fighting for broader change. His resilience and continued idealism in spite of the defeats and delays that have intermittently punctuated his career path are inspiring and refreshing. Cordray’s story also counsels in favor of welcoming temporary defeat as a teacher, all while maintaining perspective and optimism. Perhaps counterintuitively, it is precisely those moments in which democracy feels the least satisfying, accountable, and responsive, when the call to leadership and service must be taken up with renewed vigor, commitment, and civic engagement. As such, much like an ACS talk on consumer protection that I heard Cordray deliver a few months ago, this personal reflection seems to double as a call to action: It is as an important reminder that each of us is responsible for shepherding this great country and the causes we care about forward, despite the inevitable setbacks and frustrations. No one is off the hook in our continuous nation-improving project, and so we must press on, attempting as we go to achieve just the right balance of patience and urgency, cautiousness and courage, humility and brazen idealism.

    Read CFPB Director Richard Cordray’s speech on public service at The Ohio State University John Glenn Leadership Forum here.  

  • July 6, 2016
    Guest Post

    by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    Political parties use the levers of power to consolidate their power. Sometimes, of course, they do so by advancing policies that their supporters prefer. At other times, they do so by changing the electoral environment. Partisan gerrymandering is a classic example. There are more subtle ways as well. For example, over the past generation the Republican Party has pursued a strategy of “defunding the left,” that is, denying financial resources to groups thought – probably accurately – to favor Democrats.

    The gerrymandering example shows that partisan strategies to consolidate power can occur in legislatures. When that occurs, the courts’ role – from the party’s point of view – is simply to get out of the way, that is, to refuse to find unconstitutional the legislature’s decision. (When a party uses executive authority to consolidate power, the courts also have to be willing to find the executive action authorized by law. That was the partisan dimension of what was at stake in United States v. Texas, the case challenging the Obama administration’s policy on removal of some immigrants not lawfully present in the United States.)

    Courts can play a more active role in partisan power consolidation. For example, the Roberts Court’s decisions restricting class actions and favoring arbitration – nominally interpretations of a federal statute and the rules of civil procedure – can be understood as part of the strategy of defunding the left, with the targets being plaintiffs’ side trial lawyers. (On the state level, this is made clear in conservative campaigns for state supreme court positions.) And, even more aggressively, courts can find that some party-favoring policy is constitutionally required.

    That was the strategy the conservative plaintiffs pursued in Evenwel v. Abbott. The case questioned the proper population basis for drawing district lines to satisfy the “one person one vote” rule. The candidates were total population and the population of eligible voters. In Texas the “eligible voters” rule would favor Republicans by eliminating from the apportionment base young people and, more important, noncitizens. The Court rejected the Republicans’ claim, holding that total population was a permissible basis for apportionment. But, it refused to address the position taken by Texas’s Republican Solicitor General and opposed by the U.S. Solicitor General, that states had legislative discretion to choose either total population or eligible voters as the basis for apportionment. (Texas’s litigation strategy was to defend what the Texas legislature had done, but leave it open for the Republican legislature to change the apportionment base if it wanted to.)