Guest Post

  • June 6, 2014
    Guest Post

    by Nancy Northup, President & CEO, Center for Reproductive Rights

    *This piece is cross posted on The Huffington Post

    Last March, North Dakota enacted a blatantly unconstitutional and downright archaic law completely banning abortions very early in the first trimester, before many women will even know they are pregnant.

    This criminal abortion ban flies directly in the face of women's fundamental and constitutionally-protected right to control their bodies and reproductive health. Since the U.S. Supreme Court decided Roe v. Wade, hostile state politicians have continually chipped away at the rights afforded by that decision by enacting restrictions that limit women's access to abortion. But with this absolute ban, North Dakota is not just chipping away. It's grabbing sledgehammer.

    North Dakota's law bans abortion as early as just six weeks of pregnancy and makes felons of doctors who perform abortions after that point. But as the U.S. Court of Appeals for the Ninth Circuit recently stated, a law banning abortions prior to being viable outside the woman's uterus is "unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe and ending with Gonzales [v. Carhart]."

    So why is North Dakota doing this? The answer lies within the public statements of North Dakota politicians. Legislators supporting the new law brazenly admitted that their true goal was to ban abortion entirely, with many at the same time acknowledging the law would stand little chance in the courts. Even when Governor Jack Dalrymple signed the bill into law, he stated openly that it was likely unconstitutional, but opined that the State should be allowed to challenge Roe. To finance this nakedly political project, North Dakota set aside nearly half a million dollars in 2013 for the legal defense of its six-week ban and several other unconstitutional anti-choice bills.

  • June 4, 2014
    Guest Post

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

    Certain things in life are predictable. A kid tilts the gumball machine when the candy does not roll out.  A soda machine is kicked when the pop gets stuck. A baseball manager is fired when a team fails to make the playoffs. And, oh yes, don’t forget this one: politicians threaten to give away government functions when they do not work right. In recent days, with word of veterans waiting in line to get health care services, the big boys on Capitol Hill were once again doing their own form of “soda machine kicking” with calls for the privatization of Veterans Administration Health care services. 

    The rational for outcries to privatize are traced to the purported justification that the private sector is more efficient and works better than government. Really? Do the names Tyco, WorldCom, Enron, and, more recently, General Motors mean anything? What about the hospital chains like Hospital Corporation of America or the drug companies like Pfizer, GlaxoSmithKline, Abbott, and Amgen that over the years engaged in conduct that drew the ire of the Department of Justice? 

    Setting aside the list of bad actors that could fill a few notebooks, maybe there is something to be said about the idea that the private sector does it better. But is that really true when the private sector contracts with the government, or is a government contract merely a license to steal? Consider this: once government services are contracted out and long term civil service employees are displaced with contractors, there is—as Eddie Murphy might say—“no going back."  And some contractors have such a grip on their relationship with government agencies, it is virtually impossible for the government to keep them in line through any form of adult supervision. Take the case of Lockheed Martin Corporation. It has approximately $37 billion in government contracts currently. In other words, at the same time the United States Department of Justice is pursing Lockheed for violations of the False Claims Act, it is rewarding it with hundreds of millions of dollars in government contracts.

  • June 3, 2014
    Guest Post

    by John H. Blume, Professor of Law, Director of Clinical, Advocacy and Skills Programs, Cornell Law School; Director, Cornell Death Penalty Project; Faculty Advisor, Cornell Law School ACS Student Chapter

    In Hall v. Florida, the Supreme Court of the United States reaffirmed the core holding of Atkins v. Virginia, which – more than a decade ago – erected an Eighth Amendment categorical bar to executing persons with an intellectual disability. While the Atkins Court utilized and embraced the clinical consensus definitions of intellectual disability, it stated (in an unfortunate choice of language) that it was leaving “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction.” Some states, Florida being one, concluded that the Court was giving them license to narrow the scope of the constitutional exclusion by adopting legislative (or as in Hall, judicially created) variations to the clinical definition of intellectual disability. 

    The deviation from the “unanimous professional consensus” at issue in Hall was the refusal to consider the standard error of measurement inherent in any IQ score. The first prong of the clinical definition of intellectual disability is that the person must have “significantly subaverage intellectual functioning,” which translates to an IQ score of approximately 70 (two standard deviation below the mean). Even though the test designers, the American Psychological Association (APA) and the American Association for Individuals with Intellectual and Developmental Disabilities (AAIDD) all stated before and after Atkins that the measurement error of 5 points had to be taken into account, the Florida Supreme Court concluded that any death sentenced inmate who did not have an IQ score of 70 or below was precluded as a matter of law from arguing that he was intellectually disabled. Applying this non-scientific rigid cut-off, the Florida courts rejected Hall’s claim that he was intellectually disabled because his IQ was measured at 71.    

  • June 3, 2014
    Guest Post

    by Arthur Bryant,​ Chairman, Public Justice 

    *This piece is cross-posted on the Public Justice blog.

    The Federal Rules of Civil Procedure matter. They can determine who wins and who loses. And they have been changing in the wrong direction for some time.  Now, proposed rule changes are moving forward and three things are clear: they are much better than what was originally proposed, they are still disturbing, and they demonstrate the critical importance of the Federal Rules process and access to justice advocates’ participation in it.

    Last year, Professor Arthur Miller, perhaps the nation’s premier expert on federal civil procedure, published a landmark article, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure. Reviewing a wide range of developments, including changes to the Federal Rules, Miller decried the fact that our civil justice system was moving away from both the goal plainly stated in Rule 1 – “the just, speedy, and inexpensive determination of every action and proceeding” – and the “justice-seeking ethos” on which the Federal Rules are based: the belief in “citizen access to the courts and in the resolution of disputes on their merits.”

    He noted that the objective of the discovery process was “obvious and seemingly unobjectionable: The parties should have equal access to the all relevant data; litigation was to be resolved based on the revealed facts, not on who was better at chicanery or at hiding the ball.” 

  • June 2, 2014
    Guest Post

    by Frank Housh, owner of Housh Law Offices, PLLC, and chair of the ACS Western New York Lawyer Chapter. He participated in the preparation of the petition for a writ of certiorari in Johnson v. Texas, 509 US 350 (1993), a case related to the issue of the intellectual capacity of the defendant in a capital case.

    The Supreme Court’s May 27 decision in Hall v. Florida makes clear that fundamental notions of human dignity and the validity of the scientific method axiomatic in developed nations of the 21st Century have found no purchase by the majority of the Court. As a nation which still executes its own, the United States remains a peculiar outlier in the international order; the fact that our constitutional jurisprudence still tinkers with the obsolete machinery of death drags down the rule of law below the minimum standards of the world community.

    In 1989, a 5-4 Supreme Court in Atkins v. Virginia held that executing the “mentally retarded” was a violation of the Eighth Amendment. “Mentally retarded,” however, remained undefined in the decision. What followed was a macabre race to the bottom among the states, including Florida’s bright-line standard that funneled those capital defendants with an IQ of 69 or less to life without parole and those with a score of 70 and above to the gallows (Freddie Lee Hall scored a 71). Unfortunately, that race continues, as Hall does little to clarify the issue.

    Hall had two holdings: first, the more palatable “intellectual disability” is the phrase of choice over “mental retardation;” second, IQ score alone cannot be the final and conclusive evidence of the defendant’s intellectual capacity because “experts in the field would consider other evidence” due to the presence of a “standard error measurement.” No further guidance was given as to what constitutes a constitutionally permissible scheme to determine the the minimum standard of intellectual function necessary to strap someone to a gurney and shoot poison into them until they die.