• December 9, 2016

    by Christopher Wright Durocher

    The optics were stark—12 jurors, six white men, five white women and one black man, sat in judgment of Michael Slager, the white police officer who shot and killed Walter Scott, a black man, in North Charleston, South Carolina. The results were depressingly familiar—a jury unwilling to convict a police officer for unjustified use of force. The question lingers—if prosecutors cannot secure a conviction against a police officer in a case this egregious, can they ever?

    For those who pay attention to the rare cases in which police officers face prosecution for their use of force, the result was eerily similar to the case again University of Cincinnati police officer Ray Tensing. Less than a month ago, Tensing's trial also ended when a predominantly white jury in Ohio—six white men, four white women and two black women—were unable to reach a verdict in his trial for killing Sam DuBose, an unarmed black motorist.

    The disturbing video evidence in the killings of Scott and DuBose, along with the other evidence presented at the trials, make the inability of the juries to reach a guilty verdict difficult to fathom. That is, until you consider who was actually sitting on those juries and what they were being asked to decide. 

    Both juries failed to adequately reflect the racial diversity of the communities from which they were selected. In Slager’s case, his attorney successfully struck seven people of color from the jury pool, leaving only one black juror, even though North Charleston’s population is 47 percent black.  In Tensing’s case, not only was the jury predominantly white, but reports indicate that four jurors agreed with the statement from the juror questionnaire that “Some races and/or ethnic groups tend to be more violent than others.”

  • December 7, 2016
    Guest Post

    *This piece was originally posted as a part of the Harvard Law and Policy Review's Obama Legacy Symposium. 

    by Don Verrilli, Former Solicitor General of the United States

    I was fortunate to be a part of many great moments, in and out of the Supreme Court’s chambers, during my tenure as Solicitor General in the administration of President Obama. But of all the great moments, the one that means the most to me occurred at the end of a grueling three days of oral argument in the historic Health Care Case, when I spoke these words:

    The Medicaid expansion that we are talking about this afternoon and the provisions we talked about yesterday, we have been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance.

    There is an important connection, a profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. That in this population of Medicaid eligible people who will receive health care that they cannot now afford . . . there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put upon them and have the opportunity to enjoy the blessings of liberty.

    And the same thing will be true for a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I can multiply example after example.

    In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure the blessings of liberty. And I think that that is important as the Court’s considering these issues that that be kept in mind.

  • December 6, 2016
    Guest Post

    *This post originally appeared in The Commentator, The Official Student Newspaper of NYU School of Law

    by James Mayer

    As opposition to the Dakota Access Pipeline grows around the country, the cultural heritage issues that are central to the Standing Rock Sioux’s fight are disappearing from the national conversation, replaced by a whitewashed narrative of environmental activism.

    A Texas-based company, Energy Transfer Partners, is building the nearly 1,170-mile pipeline to carry oil from the oil fields of North Dakota to Illinois. The pipeline passes less than a mile from the Standing Rock Sioux reservation, through the Sioux’s traditional lands and, importantly, across several culturally significant burial grounds and sacred places. Dakota Access also crosses the Missouri River, the Standing Rock Sioux’s major source of fresh water, just upstream from the reservation. Energy Transfer Partners has already received a permit from the Army Corps of Engineers, yet the Standing Rock Sioux say they were not consulted during the permitting process and claim the pipeline will destroy significant cultural heritage sites. In September, a federal judge denied an injunction to stop construction until the legal issues were resolved.

    The Standing Rock Sioux oppose Dakota Access because it destroys their cultural heritage by damaging sacred sites, destroying traditional burial grounds and degrading ancestral lands and this is the foundation of their legal challenge to Dakota Access. Central to the community’s legal case is that they were not consulted in the development or permitting of the pipeline, in violation of the National Historic Preservation Act. The Sioux allege that Energy Transfer Partners did not consult with them in surveying the pipeline route and did not approach them for input until permits were nearly approved. Until Dakota Access respects and accommodates the community’s cultural heritage, the Standing Rock Sioux will continue to fight.

    This is not to say that environmental concerns are not also at the heart of the community’s struggle against Dakota Access, because environmental issues are central to the protests and are the basis of two supplemental legal claims. However, the mainstream focus on environmentalism and the inevitable comparison to Keystone XL, are silencing the issues of cultural heritage and cultural sustainability that drive the opposition to the project. For many Indigenous communities, environmentalism and cultural heritage are indistinguishable. Separating environmental concerns from cultural contexts whitewashes the issue, marginalizes Sioux agency as a key element of this protest and devalues the community’s cultural heritage.

  • December 6, 2016
    Guest Post

    by Norman Fletcher, Former Georgia Supreme Court Justice

    In 1967, Georgia enacted the Habeas Corpus Act in reaction to serious friction caused by federal habeas corpus review of Georgia criminal judgments. Georgia had grave systemic problems in its criminal justice system stemming from our most profound historical injustices. Georgia’s 1967 statute is broadly patterned after federal habeas corpus law, with one extremely important exception today: Georgia has never provided a right to counsel in habeas corpus. Over the nearly 50 years of this statute, the Georgia Supreme Court has decided scores of cases raising this very problem. The tragic case of William Sallie demonstrates it is not a theoretical one. If Georgia conducted its death penalty the way that virtually all other capital states do, we could expect that the evidence of a severely biased and untruthful juror tainting his 2001 trial would have been heard, and not procedurally defaulted, and his constitutional violations addressed. Instead, he is scheduled to die on Dec. 6, 2016.

    Read Justice Fletcher's full opinion editorial via The New York Times.  

  • December 5, 2016
    Guest Post

    by Gary C. Norman, Esq. L.L.M.

    Every July, Americans celebrate the anniversary of the Americans with Disabilities Act and its values: applauding, on one hand, the progress that has been obtained in achieving enhanced access to a range of public goods and services, including, healthcare information and decision making; and on the other, rallying for enhanced inclusion in the life of the community. My guide dog Pilot and I stood near the podium at a 2016 hearing, before the Senate Judicial Proceedings Committee of the Maryland General Assembly, in support of a bill that embodies one of the hallmarks of disability rights: autonomy. I testified supporting a bill, which will likely be re-introduced in 2017, the Richard E. Israel and Roger “Pip” Moyer End-of-Life Option Act. When a terminally ill person, regardless of physical abilities, determines that his/her remaining days or weeks will contain only suffering, aid in dying provides another option in line with these values. And it is in favor of this, with notable safeguards, I testified, hoping for a thoughtful conversation.

    Americans with disabilities have been rendered as passive, even victimized, consumers of the healthcare system. People with disabilities are shown as some of the unhealthiest among the American populous because of unequal access to social determinants of health, such as unemployment or under-employment and because of a lack of equal decision making. I support consequently aid-in-dying bills because people, including and even particularly those with disabilities, must be empowered to be in the driver’s seat for all of their intimate, important family decisions, free of external judgment.

    Let us have, therefore, this thoughtful conversation about death with dignity, which I am convinced meets rights-based and bioethical-based goals of autonomy.

    Discussions on the merits of aid-in-dying bills should make clear the end-users of the medication are people who are truly on the precipice of death as a result of a terminal disease. Several other modalities for ameliorating, easing or even hastening the active dying process, such as terminal sedation, are already available. Indeed, rendering this kind of decision arguably comprises a constitutional right. Numerous legislatures are now considering an additional option: allowing a physician to prescribe upon request to individuals within 6 months of death a lethal dose of medication that adults can voluntarily consume, when and whether they choose, to die peacefully in their sleep. This is the option of medical aid in dying, and it is already authorized in five states: California, Montana, Oregon, Vermont and Washington.