Other courts

  • September 15, 2015
    Guest Post

    by Victorien Wu, Fried Frank Fellow, NAACP Legal Defense and Educational Fund, Inc.

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    The Fourteenth and Fifteenth Amendments to the U.S. Constitution hold the promise of equal political citizenship for Black voters. Yet, this commitment remains unfulfilled in Terrebonne Parish, Louisiana, where, in 2008, a white sitting judge of the parish court, Judge Timothy Ellender of the 32nd Judicial District Court (“32nd JDC”), was reelected to a six-year term without having to face opposition, even after he was suspended by the Louisiana Supreme Court in 2004 for attending a Halloween party wearing blackface, an orange prison jumpsuit, handcuffs, and an afro wig in an apparent parody of Black criminal defendants who appeared before him.

    The reelection of Judge Ellender to his seat in 2008 was made possible by the discriminatory method of election that the state of Louisiana uses for the 32nd JDC. Each of the five judges of that court is elected at-large from the parish, meaning that all voters in the parish can cast a ballot in electing each of the five judges. However, Black voters constitute a minority of the electorate (at 20 percent), and voting in Terrebonne is deeply polarized along racial lines. In seven elections that were conducted at large in Terrebonne between 1993 and 2014 and that featured at least one Black candidate and at least one white candidate, Black candidates preferred by the Black community received an average of 87 percent of Black voter support, but an average of only 8 percent of white voter support.

    As a consequence, under at-large voting in Terrebonne, the preferred candidates of Black voters have been consistently defeated, regardless of whether the candidate has run as a Democrat, as a Republican or otherwise. For example, in the 1994 election for the 32nd JDC, Anthony Lewis, a Democrat and the only Black candidate, received about 73 percent of Black voter support, but only 1 percent of white voter support, thus losing the election. Reflecting the same dynamic 20 years later, in the 2014 election for the Houma City Court, another court in the parish, Cheryl Carter, a Republican and the only Black candidate, received about 85 percent of Black voter support, but only 8 percent of white voter support. As a result, she too lost the election.

  • September 11, 2015

    by Paul Guequierre

    Solitary confinement has been described as a living death. Jack Henry Abbot said about the practice: “Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone.”

    Solitary confinement, the topic of a new Issue Brief by law professor Laura Rovner released today by ACS, is viewed by much of the developed world as torture. The international community has almost universally condemned the use of long-term isolation. In 2011, the U.N. Special Rapporteur on Torture concluded that prolonged solitary confinement is prohibited by the International Covenant on Civil and Political Rights (“ICCPR”) and the Convention Against Torture, and declared that the use of solitary confinement for more than 15 days constitutes torture. So why then, is use of the practice so rampant in the United States? The good news is it’s gaining renewed scrutiny in the court of public opinion. The question is: How will federal courts respond?

    As long ago as 1890, the U.S. Supreme Court criticized the use of solitary confinement. Justice Samuel Miller, who was a physician as well as a lawyer, observed that: “A considerable number of the prisoners [subjected to solitary confinement] fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”

    And as recently as this year, U.S. Supreme Court Justice Anthony Kennedy criticized the practice, practically asking for a solitary confinement case, saying: “Research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price.

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Texas challenge to DAPA

    In what the Washington Post’s Karen Tumulty tweeted as “The most underplayed story of the day,” on Friday, July 10, two of the three judges on a Fifth Circuit Court of Appeals panel made clear, during a contentious oral argument, their intent to leave in place a District Court injunction shutting down the Administration’s November 2014 decision to confer “deferred action” treatment on undocumented parents of U.S. citizens or lawful permanent residents, and on undocumented individuals who were less than 16 years old when they arrived here, if they come forward and pass background checks for criminal records or otherwise priority deportable activities.  As detailed by Marty Lederman and others, under regulations adopted by the Reagan Administration, and endorsed in 1986 amendments to the Immigration and Naturalization Act, deferred action treatment triggers freedom to work and receive benefits such as the Low Income Tax Credit and Social Security.

    The court argument concerned a legal challenge to the Administration’s program, officially styled Deferred Action for Parents of Americans (DAPA), filed by Texas’ high decibel conservative Governor Greg Abbott, on behalf of 25 other Republican-led states.  Earlier, on February 17, Texas federal trial judge Andrew Hanen had ruled against the Obama administration, and issued an injunction barring implementation of DAPA nationwide.  Texas’ Solicitor General had good reason to file in Hanen’s court; he was well-known for previous over-the-top accusations that the Department of Homeland Security “is clearly not” enforcing immigration laws, “helping those who violate them,” and, indeed, “completing the criminal mission” of transborder human traffickers.  Given the echoing hostility vividly on display from Fifth Circuit Judges Jerry Smith and Jennifer Elrod, their decision can pretty well be counted upon to leave Hanen’s injunction in place.  To have any hope of salvaging the DAPA program before leaving office in January 2017, President Obama will likely be back before the Supreme Court in a few months.

  • June 23, 2015
    Video Interview

    by Nanya Springer

    As Stephen Bright provided closing remarks at the 2015 ACS National Convention, he extoled the virtue of representing unpopular clients ‒ particularly criminal defendants, who are usually poor and often people of color.  He listed the names of inmates who have been wrongfully convicted and recently released from prison, all unwitting members of a far-too-large society of American exonerees:  Willie Manning in Mississippi, Anthony Ray Hinton in Alabama, Alfred Brown in Texas, and Glenn Ford in Louisiana.  But Bright also delighted the crowd by introducing a special guest: exoneree and recent law school graduate Jarrett Adams.

    Adams served almost 10 years of a 28-year prison sentence for a crime that he did not commit.  After being exonerated with the help of the Wisconsin Innocence Project, he obtained a degree in criminal justice and then attended law school at Loyola University Chicago.  He has worked at the Federal Defender’s Office in Chicago and at the public interest law firm Loevy & Loevy, and soon he will begin a dual fellowship with the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the Seventh Circuit ‒ the very court that overturned his conviction and set him free.

    At the convention, Adams sat down with ACS to explain why it’s so important for law students to develop professional networks.  He said, “There are only so many big firms, and if you don’t . . . get a 4.0 or know someone . . . you don’t have the opportunity to summer with them and to get into the door.  ACS offers you the opportunity to network with the big law firms at events like this.”  He added, “You never know when you’re going to be in a networking event and meet someone that’s going to help you become someone.”

    Arguably, Adams – who hopes to practice civil rights law and continue leading the nonprofit organization he co-founded, Life After Justice – is already “someone.”  But, as he would probably agree, there is always room for growth and advancement.

    Adams’ entire interview can be viewed below.

  • June 3, 2015
    Guest Post

    by Anthony S. Winer, Professor of Law, William Mitchell College of Law

    *This post is part of ACSblog’s symposium honoring the 50th anniversary of Griswold v. Connecticut.

    Griswold v. Connecticut is justly celebrated for discerning the constitutional right to privacy, and thus constitutional protection for reproductive freedom.  It not only protected access to contraceptives, but also provided the foundation for the later cases constitutionally protecting access to abortion.  Moreover, Griswold helped instill constitutional respect for the broader concerns of “marriage, procreation, and family relationships,” and ultimately for the even broader concern of “personal dignity and autonomy.”

    However, where the privacy and personal autonomy of LGBT people are concerned, the legacy of Griswold is more nuanced.  Doctrinal developments following Griswold constrained gay rights in some respects, and in some respects fortified them.  And the way in which the Supreme Court has been treating LGBT rights recently may presage salutary changes to come.

    The most negative aspect of the Griswold legacy for LGBT people is that it did nothing to forestall the disaster of Bowers v. Hardwick.  This was the 1986 case in which the Supreme Court held that Georgia’s anti-sodomy law did not protect sexual relations between two men (nor presumably between two women).  When Bowers was decided, Griswold was already 21 years old, and Roe v. Wade had already passed its thirteenth anniversary.  Cases applying the right to privacy were not in short supply, but the Court majority could not bring itself to allow lesbians and gay men to share in the newly discerned freedoms.  There was no principled reason for Bowers to come out differently from the contraception or abortion cases.  Bowers seemed to create a “special case,” perhaps founded on homophobia, excluding lesbian and gay rights from the zone of privacy that protected others.