• October 14, 2015
    Guest Post

    by Sheila Bedi, Clinical Associate Professor of Law, Northwestern University School of Law; attorney, Roderick and Solange MacArthur Justice Center, Northwestern University School of Law’s Bluhm Legal Clinic

    Prisons and jails are a revolving door of brutality where people held behind bars experience horrific abuse funded by taxpayers and meted out at the hands of the state. My practice is dedicated almost exclusively toworking with and for men, women and children who live behind bars, and most of the cases I’ve filed have to do with prison and jail conditions.

    The facts of some of my cases speak for themselves. A juvenile prison in Mississippi was notorious for subjecting the young women there to sexual abuse, and in the wake of a particularly horrific incident during which correctional officers sexually abused girls who were then left shackled together for over a month, the prison was permanently closed. In downstate Illinois, a young man whose only offense was a first-time drug possession endured over 12 hours of brutal rape. He joined the over 200,000 people who survive sexual abuse in our nation’s prisons. Another case involved a private prison company that raked in over $100 million in profits while subjecting men to abusive conditions. There, some prison staff exploited the youth by selling drugs inside the facility, and youths who were handcuffed and defenseless were kicked, punched and beaten. Other youths were stripped naked and held in isolation for weeks at a time. Young men with serious health needs languished without medical care, sometimes risking death or permanent injury. A federal court found that these conditions resulted in “a cesspool of unconstitutional and inhuman acts . . . The sum of these actions and inactions . . . paints a picture of such horror as should be unrealized anywhere in the civilized world.”

    My work is about transforming—and hopefully dismantling—the criminal injustice system and enforcing the constitutional rights of people who live in the shadows. The challenge is to help the courts understand and reckon with the humanity of the 2.2 million men, women and children this country holds behinds bars. One of the ways that happens is when lawyers recognize the agency, courage and resilience of their clients. I am humbled and often awestruck by the courage of my clients, and the fact that they are willing to trust me with the truth of what they endure behind bars is an incredible privilege. Most of my cases are class actions seeking only injunctive relief. That means my clients aren’t getting any money from being involved in this work and instead put themselves at great risk of retaliation by speaking up and telling their stories to the court, all to ensure that others are protected from the abuses they endure.

  • October 14, 2015

    by Jim Thompson

    Tierney Sneed at Talking Points Memo writes that Alabama Gov. Robert Bentley is “reaching out to legislators with a plan to reopen the 31 driver's license offices recently closed in the state.”

    In The Atlantic, Ada Calhoun explains how a Wisconsin mother is successfully fighting fetal-protection laws that strip pregnant women of their constitutional rights.

    Justin Miller at The American Prospect discusses recent publicly funded campaigns that prove campaign finance reform can come from the bottom up.

    The Editorial Board at The New York Times examines two cases heard Tuesday by the Supreme Court involving life sentences without the possibility of parole and the death penalty.

  • October 13, 2015

    by Jim Thompson

    David R. Dow at Hamilton and Griffin on Rights discusses three death penalty cases before the Supreme Court this term and explains why the Court is unlikely to take a strong stance against capital punishment.

    In The Guardian, Spencer Ackerman reports that the American Civil Liberties Union has filed a lawsuit against two psychologists who convinced the CIA to subject terror subjects to callous torture programs.

    In The New York Times, Richard Fausset explains how a Georgia district attorney won indictments against 15 members of a Confederate flag-supporting group using an unusual legal maneuver.

    Ari Berman at The Nation urges states to follow California’s lead on the expansion of voting rights ahead of the 2016 election.

  • October 13, 2015
    Guest Post

    by Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University

    It is hardly surprising to find amicus briefs by both gun rights groups and gun violence prevention groups in a major gun related case such as Wrenn v. District of Columbia. The issue in Wrenn, the scope of the right to travel armed in public, is one of the hottest being litigated since the Supreme Court decided District of Columbia v. Heller, its controversial five-to-four gun rights decision. If the broad amicus interest in the case is to be expected, there is at least one surprising—and sneaky—aspect of the strategy pursued by one of the amici: the National Rifle Association. In Wrenn, the NRA has essentially taken an end-run around the word limits on amicus briefs by submitting two briefs—one under its own name and another by a group of gun rights advocates with close ties to the NRA, which the NRA represents as a scholarly brief by historians. Even more troubling is the attempt by one of the latter brief’s signers, David Kopel, a long time gun rights and libertarian activist to trumpet their brief on The Volokh Conspiracy, a widely read libertarian law blog that is now hosted by The Washington Post.

    The NRA “historians'” brief was submitted on behalf of a gun-rights foundation in California and five individuals, only two of whom have PhD’s in history or a related discipline. One of those, Joyce Lee Malcolm, holds an NRA-funded chair at George Mason law school. It is the only chair I can think of which seems to carry an ideological litmus test for its holder. The other full time scholar on the brief, Robert Cottrol, is one of the trustees of the NRA’s Civil Rights Defense Fund.

    The mere fact that one takes funding from a source with a particular ideological or policy agenda does not, of course, necessarily discredit the actual research produced with those funds.  That must ultimately be judged on its own merits. (Full disclosure:  About a decade ago I received a grant from a foundation interested in gun control, although my research challenged the prevailing  collective rights theory of the Second Amendment then supported by the foundation.) And none of this would matter in the end if the facts presented in the NRA historians' brief were accurate and the arguments it made historically plausible. Unfortunately, neither of these turns out to be the case.

  • October 12, 2015
    Guest Post

    by Russell Wheeler, Visiting Fellow, Governance Studies, Brookings

    Federal courts are facing a toxic mix of judges creating vacancies at an usually high rate and some Republican senators exploiting Senate traditions to prevent nominations in their states. And the Senate Judiciary Committee and Republican Conference leadership have aggressively slowed down confirmation of those nominations that make it to the Senate.*

    The net effect is a sharp increase in vacant judgeships, putting additional strains on sitting judges, including those who have earned a right to a reduced workload. It mainly affects civil litigants, including small businesses, because of criminal cases’ statutory priority. In the final two years of the Reagan, Clinton and Bush two-term presidencies -- all with divided government -- vacancies decreased. That seems highly unlikely in these final two years of the Obama presidency.

    The October 5 confirmation of a district judge reawakened complaints that seven confirmations in 2015 compare poorly to the 33 confirmations at the same point in 2007, George W. Bush’s seventh year in office.

    In response, majority members of the Senate Judiciary Committee have said that the Senate, over the six-plus years of the Obama administration, has confirmed more judges than in the comparable period of the Bush administration.

    That’s true -- as of October 5, 310 Obama confirmations versus 265 Bush confirmations.

    They’ve also complained, as did Senator John Cornyn on the Senate floor on September 17 (repeating almost verbatim a July 30 floor statement by Judiciary Committee Chair Charles Grassley), that Senate Democrats confirmed 11 judges “at the end of last year.” (Actually, it was 12, on December 16, and most were unanimous.)

    Leaving 11 nominations for confirmation in 2015, said Cornyn, would have put the Senate “roughly . . . on pace for judicial nominations this year compared to 2007.”

    That’s only true with a tortured definition of “roughly on pace.” Eighteen is not “roughly” the same as 33. And those 33 confirmations in 2007 represent a 13.0 percent increase over the number on January 1, 2007.  Even moving 11 confirmations from 2014 to 2015 would have produced only a 9.9 percent increase over the January 1, 2015, number.

    More important, though, neither claim is particularly relevant. The ultimate purpose of the confirmation process is to fill vacant judgeships, not to create comparative confirmation scorecards.