Other courts

  • July 25, 2014
    Guest Post

    by Justin Marceau and Alan K. Chen. Marceau is an associate professor at the University of Denver Sturm College of Law and a former public defender in Arizona. Chen is the William M. Beaney Memorial Research Chair and Professor of law at the University of Denver Sturm College of Law and a former staff attorney at the ACLU’s Chicago office.

    The State of Arizona’s recently botched execution of Joseph Wood is just the latest in a series of horrific events that have introduced the American public to a criminal justice problem that practitioners and legal scholars long have known about – lethal injections are an extremely troubling method for carrying out capital punishment.  Similar to the cases of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, Wood reportedly endured extensive suffering during the hour and 52 minutes it took for the drugs administered by the state’s executioners to end his life.

    The Wood Litigation Seeking Access to Information about the Drugs and Executioners

    In the days preceding Wood’s execution, his attorneys mounted an impressive campaign to overturn a lower court order denying him access to basic information about the qualifications (but not the identity) of the executioners and the source of the drugs to be used. Wood argued that he had a qualified First Amendment right of access to such information. 

    On Monday of this week, things looked promising for Wood and his legal team. An erudite panel of the Ninth Circuit concluded that it was not too much to ask of Arizona to require it to turn over the information Wood sought, or to delay the execution. Behind such litigation is the reality that without such information, of course, it would be impossible to assess whether the execution might violate the Eighth Amendment and create too great a risk of cruel and unusual punishment.  In other words, in order to know whether their client had a colorable substantive claim that the execution would be cruel and unusual, the lawyers first had to gain access to the details of the execution procedures. The procedural claim at issue in the Ninth Circuit, then, was a necessary precursor to being able to litigate the substantive legality of Arizona’s execution system.

    The Ninth Circuit panel voted 2-1 that Wood had raised a serious First Amendment claim and would suffer irreparable harm if an injunction against his execution were not granted. To be clear, all the Ninth Circuit ordered was that Arizona either turn over the information and proceed to execution as planned on Wednesday, or delay the execution until full and fair litigation regarding the right to access this information was conducted. Instead, Arizona successfully petitioned the Supreme Court, which quickly overturned the stay of execution.

    Was this Just a Gimmick to Delay Litigation?

    Some might ask why, with a thirty year track record and tacit Supreme Court approval in 2008, lawyers were inquiring about lethal injection methods.  We hear about delays in executions – we even see California’s death penalty held unconstitutional, in part, because of delay. But the reason for the litigation is clear: lethal injection is not working. 

    With drug shortages for the previous three-drug execution cocktail of choice, states have begun to experiment with the doses and types of drugs, and the qualifications of executioners are not getting any better.  In a very perverse turn on Justice Louis Brandeis’ famous quote that states may “serve as a laboratory, and try novel . . . experiments” that the rest of the country might not, states are innovating in their execution methods.  In the rush to continue with executions, Arizona and other states are using their execution chambers as laboratories for human experimentation.  What combination will create the most aesthetically pleasing execution for public consumption is the question the Departments of Correction seek to answer. 

  • July 23, 2014
    Guest Post

    by Timothy S. Jost, the Robert L. Willett Professor of Law, Washington and Lee University School of Law

    July 23, 2014 was a momentous day in the history of the Affordable Care Act. Shortly after 10 a.m., a three-judge panel of the District of Columbia Court of Appeals issued a split 2-1 decision striking down an Internal Revenue Service rule that permits federally facilitated exchanges to issue premium tax credits.  Two hours later, the Fourth Circuit Court of Appeals in Richmond released a unanimous decision upholding the IRS rule.

    The ACA authorizes the IRS to issue premium tax credits to uninsured lower and moderate income Americans through exchanges.  The ACA requests that the states establish exchanges, and sixteen states have done so.  The ACA also, however, authorizes the federal government to establish fallback exchanges in states that fail to set up their own exchanges, and it has done so in 34 states.  The IRS regulation allows premium tax credits to be awarded to eligible individuals by both state-operated exchanges and federally facilitated exchanges.

    Two subsections of the ACA, however, seem to provide that tax credits are available for months in which an individual is enrolled in a qualified health plan “through an Exchange established by the State under 1311” of the ACA. The plaintiffs argue that federal exchanges cannot issue premium tax credits tax credits to individuals who enroll through federal, as opposed to state-operated exchanges.

    The majority of the D.C. Circuit ruled for the plaintiffs, focusing narrowly on the “established by the State” language, but finding nothing in the ACA to clearly contradict the plaintiffs’ reading of the law. The Fourth Circuit found the law ambiguous, and thus under the Supreme Court’s Chevron rule, deferred to the IRS and its interpretation of the law.

  • May 19, 2014
    Guest Post

    by Mary Smith, enrolled member of the Cherokee Nation, President of the National Native American Bar Association

    On May 14, 2014, history was made with the confirmation of Diane Humetewa (pictured) to be a district court judge in the United States District Court for the District Court of Arizona.  Ms. Humetewa, an enrolled member of the Hopi Tribe, is the first Native American woman in the history of our nation to serve on the federal judiciary, and will be the only American Indian serving as an Article III judge in the federal judiciary. She previously served as the Senate-confirmed U.S. Attorney for the District of Arizona, and earlier in her career, she worked as an attorney on the U.S. Senate Indian Affairs Committee under then Chairman John McCain and as an Appellate Judge on the Hopi Appellate Court. Ms. Humetewa was confirmed unanimously by the U.S. Senate with a final vote of 96-0. 

    In addition to being the first Native American women, she is only the third American Indian to serve as a federal district court judge with the first two being men from Oklahoma. Judge Frank Howell Seay was appointed by President Carter in 1979. Billy Michael Burrage, the last American Indian appointed to the federal bench, was confirmed during the Clinton administration. Unfortunately, as of May 2014, there are 874 Article III federal judgeships in the United States—nine on the Supreme Court, 179 on the Courts of Appeals, 677 on the District Courts and nine on the Court of International Trade – and now only one of these judgeships is held by an American Indian or Alaska Native. The Honorable Derrick Watson, serving as a district judge in the United States District Court for the District of Hawaii, is Native Hawaiian and was confirmed on April 18, 2013. In addition, out of the population of federal magistrates in this country, only one – the Honorable Leo Brisbois in Minnesota – is Native American.

  • May 19, 2014
    In 2008, before he was the Solicitor General of the United States, Donald B. Verrilli Jr. argued the dangers of administering the three drug lethal injection protocol in Baze v. Rees. Now, following the botched execution of Clayton D. Lockett, many of the risks highlighted by General Verrilli have come true. Writing for The New York Times, ACS Board Member Linda Greenhouse discusses the state of capital punishment.
     
     
    Adam Liptak at The New York Times describes the troubling case of Billy Wayne Cope, a man convicted of raping and murdering his 12 year-old daughter. After confessing three times to the crime, Cope’s lawyers are appealing his conviction, blaming intense police interrogation for his multiple confessions.
     
    The Utah Supreme Court has granted a stay in response to previous orders for the state’s Department of Health “to issue birth certificates in same-sex parent adoptions.” The Associated Press has this story.
     
    As we celebrate this year’s college graduates, Henry Louis Gates Jr. at The Root  introduces his readers to America’s “first black collegians who faced a system that explicitly favored the white elite.”
     
    Gerard Magliocca at Concurring Opinions examines the influence of M’Culloch v. Maryland and The Federalist
  • May 16, 2014
     
    An unclassified report released Wednesday by the departments of Justice and Defense assured  members of Congress that “if Guantánamo Bay detainees were relocated to a prison inside the United States, it is unlikely that a court would order their release onto domestic soil.” Charlie Savage at The New York Times discusses how the report “addresses concerns over President Obama’s plan to close the controversial prison.
     
    Yesterday, U.S. District Court Judge James E. Boasberg upheld Washington, D.C.’s strong post-Heller gun regulations, finding that they “pass constitutional scrutiny.” Ann E. Marimow at The Washington Post has the story.
     
    At The Week, Matt Bruenig argues in favor of term-limiting Supreme Court justices. In his article, Bruenig supports a proposal that would enable Supreme Court judges to serve single, staggered 18-year terms.
     
    Earlier this week, the U.S. Court of Appeals for the Seventh Circuit struck down several sections of Wisconsin’s campaign finance law. At Concurring Opinions, Ronald K.L. Collins breaks down Wisconsin Right to Life v. Barland