• February 2, 2016
    Guest Post

    by Ashley Nellis, Ph.D., senior research analyst, The Sentencing Project

    On January 25, the U.S. Supreme Court revitalized hope to as many as 2,000 inmates sentenced as teenagers to life without the possibility of parole (LWOP). In its 6-3 ruling in the case of Montgomery v. Louisiana, the Court settled inconsistent interpretations of Miller v. Alabama the Court’s 2012 ruling that juveniles could not be sentenced to life without parole under mandatory sentencing schemes. Some states had interpreted Miller to be applied retroactively while others viewed the ruling as forward-looking only. As I wrote in October, the current case emerged from Louisiana’s state supreme court which ruled that Miller v. Alabama did not apply to Louisiana’s more than 250 prisoners serving mandatory life sentences. With its favorable ruling in Montgomery, the Supreme Court has now resolved the matter by defining its opinion in Miller as a watershed rule representing a transformation in law, practice, and jurisprudence, which cannot be subjected to the Teague v. Lane bar on retroactivity.

    Mandatory sentences of life without parole for juveniles rose significantly in the 1990s during the so-called “superpredator” era, which has now been wholly discredited as fear-based media hype (See Figure 1). Had it not been for the mandatory minimum sentences that were popularized during this time, the number of juveniles sentenced to LWOP would have been substantially lower. In last Monday’s ruling, Justice Kennedy corrected the misguided conclusion that children cannot be reformed, writing that “children who commit even heinous crimes are capable of change.” Consistent with the Court’s rulings in a series of cases over the past 10 years, children are different in ways that make the mandatory, permanent sentence of life without parole entirely inappropriate.

  • February 2, 2016

    by Jim Thompson

    At The Intercept, Liliana Segura says the impending execution of Georgia’s oldest death row inmate exposes the racist roots and unforgiving nature of the death penalty. 

    The U.S. Department of Justice will open an investigation into the San Francisco Police Department after video footage showed police officers fatally shooting a young, black man in December, says Stephen A. Crockett, Jr. at The Root.

    On Monday, legislation requiring the State Department to identify sex offenders on passports passed the House of Representatives and was sent to President Obama’s desk, reports Beth Schwartzapfel at The Marshall Project. Critics are calling the proposed identification marker a “scarlet letter.”

    Last week, the New Orleans public defender’s office announced it is too understaffed to take on new felony cases. The American Civil Liberties Union, a customary ally, responded to the statement with a lawsuit. Eli Hager at The Marshall Project explains why this legal move may actually benefit the struggling agency. 

  • February 1, 2016
    Guest Post

    by Juan Perea, professor of law, Loyola University Chicago School of Law

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    Most contemporary historians conclude that the American Constitution is a proslavery document. When I speak with historians about teaching constitutional law, often they are shocked that law professors typically do not teach the Constitution as proslavery. I think the general failure to teach the Constitution as a proslavery document does a major disservice both to students and to society.

    So what do I mean when I label the Constitution “proslavery?” I mean that the Constitution protected slavery and promoted slave ownership. The Constitution’s text contains several proslavery clauses. The Apportionment Clause, Article I, Section 2, added three-fifths of “all other Persons” ‒ slaves ‒ to the number of free inhabitants of a state for purposes of representation. This clause, by boosting the number of representatives in Congress for the slave states, guaranteed political protection for slavery. The same three-fifths ratio boosted the representation of slave states in the Electoral College during presidential elections. The slave import limitation, Article I, Section 9, prohibited Congress from regulating the international slave trade until 1808, 21 years after ratification of the Constitution. Not only was Congress forbidden from regulating the transoceanic slave trade, but Article V of the Constitution explicitly forbids amending the slave import limitation, one of only two such forbidden matters in the whole document. Lastly, the Fugitive Slave Clause, Article IV, Section 2, guaranteed nationally, for the first time, the right of slave owners to pursue and reclaim their slaves anywhere throughout the land.

    The Constitution thus protected slavery by increasing political representation for slave owners and slave states; by limiting, stringently though temporarily, congressional power to regulate the international slave trade; and by protecting the rights of slave owners to recapture their escaped slaves. The Constitution also promoted slave ownership by promising increased political representation while keeping unregulated the flow of slaves through the international slave trade for 21 years. Pretty significant protections, don’t you think?

    At this point one might ask, didn’t Reconstruction abolish slavery and require equal protection of the laws? Yes, the Reconstruction amendments did accomplish these things. However, the formal abolition of slavery only changed the rules of play, not the game of white domination itself. Slave codes became black codes, which became Jim Crow laws, which became race-neutral laws with outsized, unfair disparate impacts on people of color. Formal equal protection has yielded, in the main, only ostensibly race-neutral laws with heavily disparate racial impacts.

  • February 1, 2016

    by Jim Thompson

    President Barack Obama announced executive action Friday that requires companies with 100 employees or more to report to the U.S. Equal Employment Opportunity Commission how much they pay their employees broken down by race, gender and ethnicity, reports Bourree Lam at The Atlantic. This new rule “will help to root out discrimination and reduce the gender pay gap—which, according to the White House, leaves women in full-time jobs earning 79 cents for every dollar a man earns.”

    In a surprising turn of events, a grand jury in Harris County, Texas, empaneled to investigate criminal wrongdoing by Planned Parenthood, announced indictments against the anti-abortion activists who falsified documents to conduct a series of sting videos against the medical services provider, Dahlia Lithwick writes in Slate.

    Nic Cavell at Wired urges voters and politicians to resolve the issues of gerrymandering in American politics.

    Thursday, after years of increasing class sizes, pay cuts, deteriorating school conditions and emergency managers, several teachers in Detroit filed a lawsuit against the school district, says Kristina Rizga in Mother Jones.

  • January 29, 2016
    Guest Post

    by Ross Eisenbrey, vice president, Economic Policy Institute

    *This post originally appeared on

    Employers are increasingly forcing employees to give up their right to sue in court and to accept private arbitration as their only remedy for violations of statutory and common law rights. Private arbitration can forbid class actions, limit damages, allow the employer to choose the arbitrator, and cut off appeals, resulting in a system unfairly tilted in the employer’s favor. As Stone and Colvin find, employees are much less likely to win in mandatory arbitration than in federal court: employees in mandatory arbitration win only about a fifth of the time (21.4 percent), whereas they win over one-third (36.4 percent) of the time in federal courts.

    Differences in damages awarded are even greater. The typical award in mandatory arbitration ($36,500) is only 21 percent of the median award in the federal courts ($176,426). While there are additional factors to consider in comparing the two systems, at the outset it is important to recognize that in a simple comparison, mandatory arbitration is massively less favorable to employees than are the courts.