Guest Post

  • 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.

  • August 1, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor, West Virginia University College of Law

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    As we celebrate the fiftieth anniversary of the Civil Rights Act, and the fiftieth anniversary of the Freedom Summer protest, it is well worth reflecting on the how the movement challenged us to not only establish formal legal equality, but also to address enduring poverty. The Civil Rights Movement sought to persuade America that all Americans are equal. The Freedom Summer riders (and the many, many more who pressed for civil rights) sought to expose the inequality and oppression in the segregated south of 1964.

    The passage of the Civil Rights Act, the Voting Rights Act, the Fair Housing Act, still impact us today.  These enactments represent significant progress towards the goal of fostering equality. Moreover, with the contemporary tide of referenda and judicial rulings on marriage equality, the Civil Rights Movement continues to evolve to protect many people who fifty years ago weren’t deemed deserving of civil rights.

    Though we think of Martin Luther King, Jr., Freedom Summer, and formal legal equality when we think about the Civil Rights Movement, we should also remember that the struggle is really, as historian Jacqueline Dowd Hall explained, a “long civil rights movement.”  Hall’s work locates the genesis of the twentieth century movement in the 1930s with the social transformations that occurred due to economic disruption of the Great Depression.  Moreover, the long arc of legal transformation to foster equality began with the Civil War and the Reconstruction Amendments.  The civil rights struggle began with confronting the subordination and poverty slavery created.

    In this sense, the long civil rights struggle had economic equality of opportunity at its core from the beginning. As Jeremy Leaming discussed on this blog, the question of racial equality in twenty-first century America is at a crossroads in light of retrenchment in civil and voting rights.  Yet racial inequality and poverty walk hand and hand and continue to affect the lived experiences of people of color.

    NPR host Michel Martin recently wrote an article in the National Journal, discussing the key obstacles that women of color continue to face in the twenty-first century.  In discussing this article on NPR’s All Things Considered (where she called her essay her own “Letter from the Birmingham Jail”) she explained how poverty creates an enduring problem for racial minorities:

    People of color particularly — but not exclusively blacks and Latinos — are connected to poverty and to disadvantage in ways that often our white colleagues don't understand. That causes you to have to think about things that they aren't thinking about. And that's the kind of thing that I really feel a need to call attention to.

    Martin’s words -- especially as they reflect her own experience navigating the intersection of race and class-- remind us that poverty daily affects the lives of people of color, no matter how affluent.  Indeed, it is a yet-to-be-fulfilled civil rights issue of the long civil rights movement.

  • August 1, 2014
    Guest Post

    by Estelle H. Rogers, Legislative Director, Project Vote

    Not long ago in these virtual “pages,” I opined that judges were beginning to “get it” -- to understand that the enticing but superficial reasonableness of requiring photo ID to vote is far from the whole story. Yesterday, we encountered several judges who don’t get it at all, and Wisconsin’s voters are the worse for it.

    League of Women Voters v. Walker and Milwaukee Branch of the NAACP v. Walker were split decisions in which majorities of the Wisconsin Supreme Court held the state’s strict photo ID law (”Act 23”) constitutional under the Wisconsin constitution, the same state constitution whose explicit right to vote provision led to contrary rulings by the trial courts in both cases.

    It is tempting at this point simply to quote extensively from the dissenters, among whom Shirley Abrahamson, the octogenarian Chief Justice of the court, stands out in her steadfast refusal to follow the majority’s tortured logic -- or rather, tortured conclusion.  It cannot really be called logic.

    In NAACP, for example, the court construed a state regulation – not even properly before it – that explicitly required certain documentary proof in order to receive the free ID.  Recognizing that obtaining those underlying documents may involve a fee, the court “saved” the regulation, and thus Act 23, by declaring that the need for underlying documents may be excused (though granting such an excuse rests in the discretion of state bureaucrats).  Therefore requiring photo ID does not constitute an undue burden.  Therefore it must be analyzed under a rational basis test.  Therefore as long as it is rationally related to a legitimate government interest, it is constitutional. 

    What is the legitimate government interest?  Prevention of fraud, of course.  Never mind that the one example of fraud advanced by the state in both cases was allegedly committed by a supporter of Governor Walker in his recall election, who has now been indicted on 13 felony counts of voter fraud for, inter alia, registering more than once, voting multiple times, voting where he didn’t live, and lying to election officials.  None of these offenses would have been prevented by the strict photo voter ID law at issue in the case, and indeed, all of them were discovered without such a law in effect.