• October 7, 2015

    by Jim Thompson

    Matt Ford at The Atlantic reports that approximately “6,000 federal inmates whose long sentences were reduced last year will be released at the end of October, marking the start of the most substantial effort yet to reduce America’s gargantuan prison population.”

    At, John Archibald explains why making free voter IDs available to residents of Alabama’s Black Belt is not enough to ensure full voting rights in the region.  

    In The Washington Post, Greg Sargent interviews Adam Winkler, ACS Board of Directors member and author of Gunfight: The Battle over the Right to Bear Arms in America, about combatting gun violence in America.

    Brian Lamb at C-SPAN talks with Tony Mauro about his new book Landmark Cases: Historic Supreme Court Decisions, a companion publication to the C-SPAN television series. 

  • October 6, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    Yesterday, the Supreme Court issued a per curiam ruling in Kulbicki v. Maryland. The ruling was brief but unusual; the Court does not often take certiorari to review state habeas rulings. Here, the Maryland Court of Appeals had granted habeas to a prisoner whose trial lawyer had utterly failed to challenge an FBI agent’s testimony about Comparative Bullet Lead Analysis, or CBLA. The FBI agent did not find an “exact” match but sufficient similarity to conclude that the bullet that killed the murder victim came from Kulbicki’s weapon (and also matched a fragment in his truck). The problem was that this CBLA bullet analysis was flawed science. The National Academy of Sciences concluded in a 2004 report that "The available data do not support any statement that a crime bullet came from a particular box of ammunition.” Fundamental flaws in the assumptions and empirical basis for CBLA analysis led Maryland courts to reject CBLA evidence 15 years later, and the FBI to itself later disavow and discontinue use of the technique in 2005.  

    Should Kulbicki’s lawyer have known back in 1995, at the time of the trial, that this was flawed science? Kulbicki argued that a report co-authored by the analyst showed how the FBI analyst had doubts even in 1991 “that bullets produced from different sources of lead would have a unique chemical composition.” The Court rejected the notion, saying that “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Further, “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial,” it would be asking lawyers to "go looking for a needle in a haystack” to search for such evidence that the forensics were flawed.

    Compare the Court’s ruling in Kulbicki to last year’s per curiam opinion in Hinton v. Alabama, another case examining a lawyer’s failure to adequately develop forensic evidence at trial, including firearms and tool mark analysis. The outcome was different. In Hinton, a death penalty case, the Court found the lawyer to have been constitutionally ineffective. (On remand, Hinton’s conviction was vacated). From the beginning, the tone in the two per curiam opinions could not have been more different. In Hinton, the Court correctly stated the Strickland v. Washington constitutional standard for ineffective assistance of counsel as asking “if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.” In Kulbicki, the Court oddly misstated the standard as “meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” That description of the Strickland test was, at the very least, a casual and imprecise one.

  • October 6, 2015

    by Jim Thompson

    Tierney Sneed at Talking Points Memo reports that the NAACP Legal Defense and Educational Fund (LDF) has requested to meet with Alabama officials to express concerns that DMV closures in majority-minority counties will make it harder for African Americans to obtain government-issued voter IDs necessary to vote under state law.

    In a press release, the Constitutional Accountability Center condemns Republican Senate leaders “complicit in the virtual shutdown of the judicial confirmation process.”

    In The Washington Post¸ Aaron C. Davis writes about legislation presented before the D.C. Council that would make the District the most generous place for paid family leave in the U.S.

    Melvin I. Urofsky at The New Republic discusses the potential for the next prophetic dissent to be delivered during the coming Supreme Court term. 

  • October 5, 2015
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    The New York Police Department announced on Thursday that it has established new and unprecedented guidelines governing the use of force, and perhaps more importantly, the reporting and recording of each instance in which an NYPD officer uses force, whether or not it results in an actual arrest. According to The New York Times, not only will the use of force during incidents resulting in lawful arrests be reported and investigated, “but also in other encounters with the public, including the sort of brief, violent detention and release that occurs routinely on the street.” 

    Huh?  This raises at least two questions: In what universe are the police routinely engaging in violent encounters and detentions with the public on the street that result in that one-time “suspect” being released without arrest and criminal charge?  On what legal basis was the stop initiated in the first place?  James Blake, the African American tennis star who was attacked and thrown to the ground by an NYPD officer in September, is an example of just such a “brief, violent detention.” These “encounters” (assaults) apparently occur with such frequency in New York City that it is only now, in 2015, after an attack on a celebrity former professional athlete attending the U.S. Open, that these incidents of “rough police play” are even seen as worthy of being recorded and investigated. 

    Any encounter or stop on the street between a police officer and a member of the public that results in a “violent” detention, no matter how brief, where there is no reasonable suspicion or probable cause that results in an arrest is a de facto instance of excessive force. Without doubt, there will be rare and infrequent instances where officers strongly believe that they have the reasonable suspicion or probable cause required to make a legal stop on the street and in so doing see their suspicions dispelled upon further investigation. The police may even see the need to use some level of force in making the stop. 

    But the routinization of the use of violence by the police in New York City in making street stops of innocent and law abiding citizens like Mr. Blake is troubling, as it should be. The world saw what the NYPD did to Mr. Blake; what we have not witnessed are the no doubt hundreds of thousands of other instances during the past several years of men, women and children of color being knocked down, bundled, tackled, beaten and then unceremoniously sent on their way without arrest or charge by the NYPD.

  • October 5, 2015

    by Jim Thompson

    Garrett Epps at The Atlantic discusses the partisan implications of three forthcoming Supreme Court cases.

    At The New Republic, Lawrence Goldstone explains that the decision in Citizens United vs. Federal Elections Commission has misguided legal roots in “a series of late nineteenth century Supreme Court rulings that disemboweled the Fourteenth and Fifteenth amendments and ushered in the Jim Crow era.”

    Catherine Fisk at On Labor argues that Justice Antonin Scalia’s frequent opinion that public employees have minimal free speech rights “should require him to reject the First Amendment challenge to union fair share fees in Friedrichs vs. California Teachers Association.”

    At Vice, Max Rivlin-Nadler explains why budget constraints are undermining defendants’ right to an attorney in legal proceedings. This story is part of a larger series on mass incarceration in America.