Procedural barriers to court

  • April 27, 2010
    Guest Post

    By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment 

    "Conservatives' court-packing ploy," an op-ed by Professor William Marshall, explained how Republicans'

    "judicial activism" mantra has been inordinately effective in shaping the debate over judicial nominations. It has allowed them to push through deeply conservative nominees [and] changed the course of American jurisprudence from one based on advancing principles of equality and liberty to one centered on protecting wealth and privilege. The replacement of Justice Stevens stands as an opportunity for Obama to begin the process of returning our understanding of the Constitution to its essential moorings.

    E.J. Dionne Jr.'s Washington Post column described how "the conservative intellectual offensive" has transformed

    our discussion of the judiciary. That is why the coming clash over President Obama's next Supreme Court nominee ... must be the beginning of a long-term effort to expose how radically conservatives have altered our understanding of what the Supreme Court does and how it does it. Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies ....

    Accounts of right-wing judicial activism have focused on the Roberts' Court's opinions, and properly so. For example, my April 13th ACSblog guest post explained how laws that protect people and the environment are "threatened by activist Supreme Court Justices with agendas that result in plurality and bare majority opinions that are overly broad, unwarranted, and ignore or overturn established precedent."

  • April 22, 2010
    Guest Post

    By David Carroll, Director of Research, National Legal Aid & Defender Association

    Utah statutes require some measure of quality in the provision of right to counsel services mandating that counties provide "timely representation by competent legal counsel" who must provide "undivided loyalty" to clients and have the "investigatory resources necessary for a complete defense." But there is no statewide commission or regulatory department to ensure that these minimum standards are met, let alone standards related to caseload controls, attorney qualifications or training.

    On top of that, Utah is one of only two states in the country that does not contribute any state funding for the right to counsel (Pennsylvania is the other). Collectively, Utah counties spend only $5.22 per capita for the right to counsel, or, 57% below the national average ($12.09). Only Missouri ($5.20) and Mississippi ($4.15) spend less.

    Counties are allowed to create and administer any delivery system they desire and most have either contract or assigned counsel systems. For years, national advocates - including NLADA - have reported that only two of Utah's 29 counties have established staffed public defender offices (Salt Lake and Weber Counties). But in an effort to save money, Weber County (Ogden) defunded the public defender office in 2009 and moved to individual flat fee contracts in which private attorneys take an unspecified number of cases (the county saved over $100,000).

    Today, the Salt Lake Tribune reports on what those changes mean to clients. In a move similar to the Weis v. The State case out of Georgia, prosecutors in Utah have made a motion to remove the attorneys of a client facing the death penalty because they are no longer under contract with the county to handle trials. Appointed 21 months ago when they were employed staffed public defenders, the two attorneys are arguing that removing them now would be prejudicial to their client. The would-be replacements for the client have never handled a death penalty case.

    The ACLU of Utah is intervening in the case with a hearing set for May 7. The ACLU reports that other systemic deficiencies in Utah include attorneys carrying twice as many felonies as recommended under national standards -- in addition to their own private caseloads. Excessive caseloads force attorneys to regularly waive preliminary hearings and fail to file motions because of a lack of time.

  • April 8, 2010
    Guest Post

    By Ann Baddour, Senior Policy Analyst, Texas Appleseed & Steven Schulman, Pro Bono Partner, Akin Gump Strauss Hauer & Feld LLP


    The U.S. immigration court and detention systems have both acknowledged the need to extend special protections to vulnerable populations, including unaccompanied children. Immigrants with mental disabilities, given their particular inability to navigate these systems and obtain care on their own, should also be regarded as vulnerable and afforded protections in the U.S. immigration system.

    Immigrants with mental disabilities are detained in a system ill-equipped to care for them, and, to make matters worse, are often arbitrarily transferred far away from their family and community supports, denied basic due process in a complex immigration court system, and released from detention or removed from the U.S. without regard to their personal safety.

    Texas Appleseed, one of Appleseed's 16 public interest law centers in the U.S. and Mexico City, and its pro bono counsel, Akin Gump Strauss Hauer & Feld LLP, document these challenges and recommend specific reforms in a new report, Justice for Immigration's Hidden Population. Based on information from more than 40 interviews with immigration attorneys, immigration detainees, and other stakeholders, along with detailed policy research, the study identifies these troubling trends:

  • April 5, 2010
    Guest Post

    By Amanda Frost, associate professor of law, American University Washington College of Law

    Plaintiffs have won a rare victory against the government in a case involving the state secrets privilege. On April 1, 2010, Federal District Judge Vaughn Walker ruled in favor of Al-Haramain Islamic Foundation, Inc., a now-defunct Islamic charity that had sued the government for intercepting its employees' international telephone conversations without obtaining a warrant. Al-Haramain claimed the government's warrantless wiretap violated the Foreign Intelligence Surveillance Act (FISA), a federal law that limits the government's ability to eavesdrop on its citizens. The case is one of several challenging the National Security Agency's warrantless wiretapping program. The government has responded to all such lawsuits by arguing because its surveillance activities concern national security, the state secrets privilege requires dismissal of claims that it violated FISA.

    Yet FISA was enacted for the very purpose of preventing the government from eavesdropping without a warrant, and it provides a mechanism by which individuals or groups who believe they have been victims of an unlawful government wiretap can seek redress in the courts even when the claim relies on classified evidence. Under FISA, if a plaintiff establishes a "colorable basis" for believing that it has been subject to unlawful surveillance, the Court can then examine classified evidence in camera to determine whether the surveillance occurred, and if so whether it was lawful.

  • April 1, 2010
    Guest Post

    By Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief, and Brigitte Amiri, Senior Staff Attorney, ACLU Reproductive Freedom Project

    Last week, a federal district court in Massachusetts ruled that an ACLU challenge to the government's use of taxpayer dollars to impose religious doctrine on victims of human trafficking may go forward. The decision is a victory for women's health and for the basic constitutional principle that federal dollars cannot be used to favor one religious perspective over all others.

    Since April 2006, the Department of Health and Human Services (HHS) has awarded the United States Conference of Catholic Bishops (USCCB) millions of dollars to make grants to organizations that provide direct services to trafficking victims. HHS did this knowing that USCCB prohibits, based on its religious beliefs, grantees from using any of the federal funds to provide or refer for contraceptive or abortion services. We brought a lawsuit on behalf of the members of the ACLU of Massachusetts who object to their tax dollars being used for religious purposes.

    Shortly after we sued, the government asked that the court dismiss the case. The government argued that taxpayers couldn't bring the lawsuit. They argued that only, for example, a trafficking victim could raise an objection.