ACSBlog

  • July 13, 2015
    Guest Post

    by Theo Shaw, a William H. Gates Public Service Law Scholar, University of Washington School of Law; and one of the young students charged in the “Jena 6” case. Follow him on Twitter @theorshaw

    Glenn Ford, imprisoned nearly half his life for a murder he didn’t commit, died earlier this month after a battle with lung cancer. Socially, though, he died 30 years ago – in part because of our nation’s underfunded public defender systems and prosecutorial misconduct, and lack of accountability.

    As an intern for the Innocence Project New Orleans (IPNO) in 2010, I worked on multiple cases where prosecutorial misconduct and lawyers’ ineffectiveness resulted in wrongful convictions. Some of our clients received ineffective legal representation because our nation’s public defender systems are so terribly underfunded lawyers are compelled to represent more people than is ethically possible, which increases the likelihood of wrongful convictions.

    Compounding those injustices are government abuses of power. During Ford’s initial trial, prosecutors withheld evidence favorable to his defense. Disturbingly, Ford’s nightmare isn’t unique. During my summer with the IPNO, I befriended John Thompson. He spent 18 years in prison—14 of those years on death row—for a crime he didn’t commit. In his case, prosecutors also withheld evidence favorable to his defense; and the gross injustice of government abuse is a reality for many more defendants.

    After his release, Ford filed a petition seeking compensation for his wrongful imprisonment. Ford's request was denied because, according to District Judge Katherine Dorroh, he failed to prove by clear and convincing evidence that he was factually innocent. This is clear for me: a criminal justice system built on the principle of Equal Justice Under Law should require more – for justice and fairness.

    For our society to banish these injustices it must face reality and take action. 

    In our juvenile and criminal justice systems, race and poverty significantly determines outcome. In fact, there are important cause and effect relations between race and poverty. It’s undeniable and ethically inexcusable that for indigent and racial minorities in our justice systems, both historically and within our contemporary society, the right to counsel is violated almost daily.

    As a prospective public interest lawyer, I am strongly committed and passionate about the right to competent legal representation and equal justice for indigent people, racial minorities, juvenile offenders, condemned prisoners, and those wrongly convicted in our legal system. This means I am just as committed to fighting systemic poverty, challenging racial discrimination in our criminal justice system, and ending human rights abuses in our juvenile and adult detention facilities, practices such as solitary confinement, guard abuse, and degrading conditions of confinement.

    My vision and hope for a just society is also fueled by a deeply held universal concern (across race) for all persons who have had or will have their constitutional rights violated. Hence, I am committed to using my knowledge (legal and otherwise) to be a powerful and compassionate voice for every person accused of a crime. In this way I hope to help this country realize the promise of Gideon v. Wainwright

     

     

  • July 10, 2015

    by Caroline Cox

    On Tuesday, the Senate confirmed Kara Farnandez Stoll with a 95-0 vote for a seat on the U.S. Court of Appeals for the Federal Circuit. The Senate Judiciary Committee approved her nomination in April, and her confirmation will make her the first minority woman to serve on the Federal Circuit.

     The Senate Judiciary Committee voted on three judicial nominees on Thursday. The Committee voted to send the nominations of Luis Felipe Restrepo, to serve on the U.S. Court of Appeals for the Third Circuit, Travis Randall McDonough, to serve on the U.S. District Court for the Eastern District of Tennessee, and Waverly D. Crenshaw, Jr., to serve on the U.S. District Court for the Middle District of Tennessee, to the Senate for confirmation votes.

    The large number of judicial vacancies continue to make it difficult for federal courts to adequately conduct business and deliver justice. Carl Tobias, the Williams Chair in Law at the University of Richmond, urges the Senate to fill the vacancies on the U.S. Court of Federal Claims at The Hill, and the blog for the Alliance for Justice examines how Texas has become the epicenter of the judicial vacancy crisis.

    There are currently 62 vacancies, and 27 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.

  • July 10, 2015

    by Caroline Cox

    The New York Times features a debate over whether the Supreme Court has become too powerful.

    At The Atlantic, Russell Berman discusses how a bipartisan consensus in Congress could lead to meaningful reform of the criminal justice system.

    Andrew Prokop reports for Vox on the Florida Supreme Court ruling against partisan gerrymandering.

    At the blog for the Brennan Center for Justice, Walter Shapiro considers what gun control advocates can learn from South Carolina.

    Steven Mazie contends at The Economist’s Democracy in America blog that liberals may find themselves less satisfied with Supreme Court rulings next term. 

    Fili Sagapolutele and Jennifer Sinco Kelleher report for the Associated Press that American Samoa is holding out against the Supreme Court's marriage equality ruling.

  • July 9, 2015

    by Caroline Cox

    In The New York Times, ACS Board member Linda Greenhouse argues that the Supreme Court has not taken a liberal turn this year.

    Andrew Pincus explains the next challenge to President Obama’s executive action on immigration at Talking Points Memo.

    David A. Graham reports for The Atlantic that the Baltimore Mayor has fired the city’s police commissioner.

    At The New Yorker, Amy Davidson considers what Dred Scott has to do with the decision in the marriage equality case.

    Frank Norris reports for NPR that a settlement in a Kansas lawsuit will create a new standard for gun seller liability for dealers who sidestep mandatory background checks.

  • July 8, 2015
    Guest Post

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

    The so called new originalism has generated a good deal of academic buzz over the past few years.  (As is true for most forms of originalism the actual impact of the theory on the behavior of courts has been quite modest.)  It is hard to find much support for originalism among professional historians. Judged from the perspective of history, most new originalist scholarship seems methodologically simplistic and ideologically tendentious. Rather than move constitutional theory forward, new originalism represents a serious intellectual step backwards

    In the current issue of The Virginia Law Review Professor Lawrence Solum of Georgetown, a prominent new originalist, responds to some of this recent historical criticism. Solum’s variant of new originalism is the most sophisticated of the many rival theories now floating around.  Moreover, he maintains that his originalist approach to history rests on truths derived from philosophy and linguistics, insights that he claims historians have neglected. Although Solum has dressed up his theory in a ponderous philosophical jargon, his approach has done little more than wed the old law office history to a new law office philosophy. Stripped of its pretentious vocabulary, Solum’s theory leaves us at the same old impasse: originalism remains an ideology pretending to be a scholarly methodology.

    Solum describes his theory as follows:

    Because constitutional communication (like legal communication generally) is simply a form of human communication, theories of constitutional interpretation must be reconciled with the general theory of the way linguistic communication works that has been developed in the philosophy of language and theoretical linguistics.

    The first problem with such a claim is that it mistakenly asserts that there is a clear consensus in the philosophy of language about how to approach issues of meaning. This statement is clearly false. Philosophers remain deeply divided over these types of questions. Even if one assumes that some variant of Gricean pragmatics (the model Solum favors) is the correct theory to understand constitutional communication, Solum’s adaptation of Gricean ideas is questionable at best, and arguably is simply wrong-headed. The claim that constitutional communication is just another form of ordinary communication and must conform to the models used to comprehend ordinary language seems equally problematic. There are many forms of communication that do not conform to the rules governing ordinary language, for example, poetry, politics, and oratory.  (Indeed the very idea of a universal model of ordinary communication that transcends boundaries of time, space, and place itself seems deeply ethnocentric and has been challenged by many anthropologists.)

    The final problem with Solum’s model stems from his rendering of the current state of linguistic theory. Solum appears to have ignored the entire sub-fields of  socio-linguistics and linguistic anthropology. Rather than support his theory, empirical work in these two fields undermines virtually every one of Solum’s assumptions and claims about how language works. Indeed,  if one looks at Solum’s  model it clearly violates some of the most basic research protocols in these sub-fields by assuming the existence of a broad consensus on linguistic matters and ignoring the existence of rival speech communities within the dominant linguistic community under examination -- Founding era America. Although English speakers in America in 1788 may have been part of the same linguistic community, they were not all members of the same speech community. Indeed, the degree of linguistic consensus Solum posits for post-Revolutionary era America exceeds anything linguistic anthropologists have ever documented in decades of field research. Solum’s theory is really a form of American exceptionalism on steroids. Such a consensus model is not only hard to reconcile with the empirical evidence gathered by anthropologists about linguistic diversity in virtually every complex literate society, it does not fit the available historical evidence about Founding era constitutional culture. The Founding era was not characterized by consensus, but was defined by profound conflicts over the meaning of constitutional terms, constitutional interpretive methods, and constitutional aspirations. New originalists, including Solum have never grasped this basic fact which historians demonstrated decades ago.