• June 30, 2016
    Guest Post

    by Robert Smith, Director of the Fair Punishment Project at Harvard Law School

    Last year, in Glossip v. Gross, Justice Stephen Breyer supported his point that the death penalty had become truly unusual in America by noting that “the number of active death penalty counties is small and getting smaller” such that “[o]nly a handful of America’s 3,143 counties use the death penalty with any regularity.” Fast-forward one year. Within the past month, the Court has addressed four death penalty cases stemming from the fifteen active death sentencing counties that Breyer highlighted.

    The Court added two of the cases to its merits docket for next term, Moore v. Texas and Buck v. Texas, both out of Harris County, once called the buckle of the death belt. It reversed the death sentence in Lynch v. Arizona, a case out of Maricopa County, the jurisdiction with the second most death sentences in America since 2010. And, finally, in Tucker v. Louisiana, Justices Breyer and Ginsburg renewed their invitation for the Court to revisit the Constitutionality of the death penalty in a dissent from the denial of certiorari which queried “whether “geography” and not the “comparative egregiousness of the crime” best explained Mr. Tucker’s death sentence.

    What is going on in these counties? Population and homicide rates explain some of the differences in a few of the largest counties. But even in those places there is a lot left to be explained. Here’s a hint:

    A prosecutor named Dale Cox obtained the death sentence against Lamondre Tucker. Cox was responsible for 1/3 of the death sentences in Louisiana between 2010 and 2015. He infamously told a reporter that we “need to kill more people”, told defense lawyers in a capital case that he wanted to “cut their f---ing throats”, and told jurors that Jesus demanded that people like the defendant have a millstone wrapped around their neck and be thrown into the sea. Therefore, Breyer and Ginsburg would have been correct if they had written: it appears as though the personality and predilections of the prosecutor and not the “comparative egregiousness of the crime” best explained Mr. Tucker’s death sentence. The same statement could be said for Lynch, decided the same day as Tucker. Juan Martinez was the trial prosecutor in that case. He is one of a trio of prosecutors that account for 28 percent of Arizona’s death sentences over the past decade. The Arizona Supreme Court has called out Martinez by name, found that he committed misconduct in at least two previous capital cases, and identified at least seventeen instances of Martinez’s inappropriate behavior in the Lynch case alone. And both Bobby Moore (his original sentence) and Duane Buck were sentenced to die during the Johnny Holmes era in Harris County.

  • June 29, 2016
    Guest Post

    by Linda Goler Blount, President & CEO, Black Women’s Health Imperative 

    Women, the highest court in the land has reaffirmed your constitutional right to the abortion access! This week, the Supreme Court ruled a Texas law, which requires abortion clinics to meet the standards of outpatient surgical centers and doctors to have admitting privileges at nearby hospitals, unconstitutional. 

    Supporters of the Texas Targeted Regulation of Abortion Providers, or TRAP, law said it was necessary in order to protect women’s health and safety. But all it did was make it more difficult for women - especially poor women and women of color - to get an abortion. Since the law took effect in 2013, dozens of clinics shut down, forcing some women to drive hundreds of miles away for the procedure, or even to attempt unsafe, illegal, and sometimes deadly home abortions.

    This week’s landmark decision in Whole Woman’s Health v. Hellerstedt means several clinics will reopen, removing unnecessary barriers to abortion access for the five million women of reproductive age in Texas. Most importantly, it sets a legal standard that will impact similar laws across the country.

    The fight isn’t over yet, though. The Hyde Amendment is still blocking some women from accessing their constitutionally protected right to an abortion. It prohibits women who receive health insurance through the government from using those federal funds to pay for abortions. The amendment primarily affects low-income women who are on Medicaid. These women cannot afford to pay for an abortion out of pocket. And if they have children they cannot afford, it's likely they - and their children - will remain in poverty for the rest of their lives.

    So as we celebrate this week’s victory, I encourage you to support the Black Women's Health Imperative in our efforts to overturn the Hyde Amendment and get the EACH Woman Act passed. We must ensure all women receive the abortion care they need and deserve.

  • June 28, 2016
    Guest Post

    by Sarah Warbelow, Legal Director, Human Rights Campaign

    Last month marked the 20th anniversary of Romer v. Evans, the landmark Supreme Court decision that laid the legal groundwork for some of our community's biggest victories including US v. Windsor and Obergefell v. Hodges.  In Romer, the Supreme Court determined that a Colorado anti-gay voter referendum violated the Equal Protection Clause of the Constitution.  Several Colorado municipalities had passed protections from discrimination on the basis of sexual orientation in the employment, housing, healthcare and other basic services.  In response, in 1992 Colorado voters adopted Amendment 2 to the Colorado Constitution, which precluded these protections and any judicial, legislative or executive action designed to protect LGB people from discrimination.  The Court ruled Amendment 2's blatant targeting of LGB people for discrimination to be a clear violation of the Equal Protection Clause of the Constitution.

    In addition to strengthening the legal foundation for LGBT civil rights in the Constitution under the 14th amendment, Romer also sent a powerful message to lawmakers and courts that homophobia, or as the court described it a "bare... desire to harm a politically unpopular group," can never be a legitimate state interest.  

    The precedent that Romer created is clear.  Hate must not be used as the basis for lawmaking.  It illustrates the critically powerful role of the Court as designed by our nation's founders to facilitate a genuine balance of powers within our democracy and to safeguard individuals from the so-called tyranny of the majority.  As James Madison described in the 51st edition of  the Federalist Papers,  "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure."  

    Two decades after Romer, and over two centuries since the publication of the Federalist Papers these words remain frighteningly relevant.  Today we can look back on what has been the most pro-equality administration in this nation's history.  Under President Obama's leadership the federal government has implemented a myriad of federal protections in heatlhcare, employment, and housing.  Many states and cities across the country now provide local protections as well. However, the anti-LGBTQ animus that fueled Amendment 2 in Colorado in 1996 continues to be a powerful force in American politics.  As we have seen in North Carolina over the past months there are powerful forces transforming "bare animus" into state sanctioned bullying, particularly targeting transgender people. 

  • June 28, 2016

    by Jim Thompson

    Richard Wolf at USA Today reflects on the recently-completed Supreme Court term, quoting ACS President Caroline Fredrickson, who concludes, “the court has left uncertainty, [as well as] differing interpretations of the law in different parts of the country.” Additional commentary comes from Kenneth Jost at Jost on Justice.

    The Supreme Court on Monday struck down Texas’s restrictive anti-abortion measures. ACS Board member Linda Greenhouse examines the majority opinion in The New York Times.

    In Time, Geoffrey Stone, co-faculty advisor to the University of Chicago ACS Student Chapter, opines that Senate republicans will forever change the judicial confirmation process “if they don't cease the manipulative obstruction of Merrick Garland.”

  • June 28, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Director of the Center for Immigrants’ Rights Clinic at Penn State Law-University Park and author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)

    The 4-4 ruling in U.S. v. Texas on June 23 stunned the minds and hearts of the Administration, affected individuals and families and legal experts who held on to the belief that the Supreme Court would issue a decision that was reasoned and consistent with the rule of the law. Instead, the Supreme Court issued a nine word ruling: “The judgment is affirmed by an equally divided court.” The ruling did not include information about the individual position of the justices or a rationale behind this ruling. The impact of U.S. v. Texas on immigrants is immediate and prevents those who would have qualified to apply for two deferred action programs designed by the Administration and aimed at undocumented parents and young people who meet certain guidelines.

    In the wake of last week’s ruling in Texas, it is important for the immigrant communities, attorneys and advocates to be aware of the existing discretionary tools available beyond the 2014 deferred action programs. For as long as the immigration system has operated, prosecutorial discretion has enabled thousands of individuals and families to stay together.  Potentially, those would have qualified for the 2014 deferred action programs known as DAPA and DACA Plus are by virtue of their eligibility low enforcement priorities and eligible for some form of prosecutorial discretion. Unaffected by the litigation is a memorandum published by Department of Homeland Security Secretary Jeh Johnson. The Johnson Memo identifies several factors that DHS employees should consider when making prosecutorial discretion decisions, including but not limited to: length of time in the U.S.; military service; family or community ties in the U.S.; status as a victim, witness or plaintiff in civil or criminal proceedings; and humanitarian reasons like poor health, age, pregnancy, a young child, or a seriously ill relative.

    The Johnson Memo contains important language about how discretion should be exercised during the detention process and states discourages detention for noncitizens “who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.” While many forms of prosecutorial discretion can be exercised at any stage of enforcement, the Johnson Memo emphasizes the importance of exercising this discretion early in the enforcement process.