ACSBlog

  • November 23, 2016
    Guest Post

    by Lawrence O. Gostin, Founding O'Neill Chair in Global Health Law at Georgetown Law, Faculty Director of the O'Neill Institute for National and Global Health Law, Director of the World Health Organization Collaborating Center on Public Health Law & Human Rights, and University Professor at Georgetown Law

    Since 2002, the Supreme Court has banned the execution of people with intellectual disability. Writing for the Court, Justice John Paul Stevens looked to the clinical understanding of intellectual disability and explained that people with that condition bear diminished culpability “by definition” and are “categorically excluded from execution,” lest cruel and unusual punishment be imposed.

    In spite of this categorical ban, people with intellectual disability still face execution in the U.S. because Texas – the state that carries out far more executions than any other state – has disregarded the Supreme Court’s directive that intellectual disability evaluations in death penalty cases must be informed by the medical community’s diagnostic framework. The Supreme Court will soon have an opportunity to address Texas’s unusual and bizarre approach.

    Texas is a global outlier when it comes to its method for evaluating intellectual disability claims in death penalty cases. Remarkably, Texas prohibits the use of current medical standards. It is difficult, if not, impossible to locate any other jurisdiction in any country where it is forbidden to use current medical standards in evaluating intellectual disability. As with any field, when policy makers or courts not only defy scientific evidence or standards, but also disregard them, the results can be catastrophic—in this case, literally a matter of life or death. And briefs in the Supreme Court show that no other jurisdiction in the U.S. follows that practice.

  • November 22, 2016
    Guest Post

    by Olivia N. Sedwick

    On Nov. 7, 2016, the ACS Student Chapter at Howard University School of Law hosted a “community conversation” aptly titled “Depending on Tomorrow: The Future of the Supreme Court.”  Our discussion featured two notable attorneys from Skadden, Arps, Meagher & Flom, LLP: Greg Craig and ACS Board Member Cliff Sloan. The panelists have a great deal of experience including having served two Presidents and arguing before the Supreme Court. With such experience, the conversation was well informed about the expectations and attendant implications that would possibly accompany the next presidential administration.

    Much of the conversation focused on the realistic expectations and attendant implications that would come with another Clinton presidency. In that vein, we discussed how a Clinton Supreme Court nomination could even out—not necessarily drastically shift—the dynamic of the Court and what important past and upcoming decisions hung in the balance as a result. As Howard Law students, we are always focused on the greater societal implications on equality, justice and fairness. Naturally, we discussed Citizens United, Shelby Cty. v. Holder, the Affordable Care Act and immigration concerns. Likewise, we also discussed the sore-spot that is the 1994 Crime Bill—how and why it was so bad and how another Clinton presidency could possibly remedy it.  Those of us in the room knew that many of these decisions—and with them our very livelihoods—lay in wait until the next day, tomorrow.

    It is for this reason why I believe that the program was so salient and timely because, for the first time in many of our lives, one day meant to live freely or in fear, to live or to die. While such a statement might be hyperbolic for some, for many anything short of a Clinton administration could mean precisely that. It could mean the likelihood of deportation would increase, more than just a little bit. It could means that affordable access to treatments, in many respects, would became slightly unaffordable. Unfortunately, the day after the election became the day that many of us would have to begin to live in fear. It means that hindrances to the ballot box could possibly be resurrected simply because necessary changes that would restore optimal strength to the Voting Rights Act of 1965 would likely be halted even further.   

  • November 22, 2016
    Guest Post

    *This post was originally published on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    President-elect Trump announced that he plans to nominate Senator Jeff Sessions to be Attorney General, and for those who have concerns—or outright opposition—to this pick, recent headlines have been daunting: “Sessions looks like a lock for confirmation.” “Senate Democrats Can’t Stop Sessions, So How Much Will They Fight?

    To some extent, I understand this analysis: Senate Democrats cannot stop this nomination unless Republicans join them, and based on the public statements of support so far, that doesn’t seem likely.

    Then again, I imagine this was also the analysis in 1986, when a Republican-controlled Senate considered Sessions’ nomination to the district court—before the Senate Judiciary Committee held two sets of hearings. Before Senator Howell Heflin (also of Alabama) withdrew his support, stating “fairness and impartiality go to the very heart of our justice system...as long as I have reasonable doubts, my conscience is not clear, and I must vote no.” Before two Republicans joined every Democrat on the Judiciary Committee in opposing his nomination. Before the Judiciary Committee rejected a lower court nomination for the first time in nearly half a century.

    What happened in 1986 could happen again today: Senators could diligently review the record and vote their conscience.

  • November 21, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Clinical Professor of Law and Director of the Center for Immigrants' Rights at Penn State Law

    In the wake of the election, immigration has been a centerpiece. Immigration attorneys and advocates have worked around the clock speaking to clients about how best to proceed in their cases and to the immigrant community and beyond about the rule of law. The fear and uncertainty sweeping immigrant communities are propelled by an anti-immigrant agenda by President-elect Donald Trump and his transition team. Specifically, proposals to end the Deferred Action for Childhood Arrivals (DACA) program; deport two to three million “criminal aliens”; and subject certain individuals to a “Muslim registry” have caused immediate and specific concern and also confusion between rhetoric and reality.

    DACA is a program implemented by President Obama in 2012 that enables noncitizens without status to apply for a form of prosecutorial discretion called “deferred action” if they entered the United States before the age of 16, are currently in school, have resided continuously since June 15, 2007 and meet other program requirements. Since the program started, more than 700,000 people have received DACA and employment authorization pursuant to their deferred action status- thousands more have had their DACA status “renewed”. Whether the President-elect will revoke DACA and work permits from DACA holders remains to be seen, but the concerns are real and have furthermore heightened the risks for prospective applicants and applications for renewal which may be pending through inauguration day. Current and would-be recipients of DACA represent the lowest priorities and should not be targeted by any Administration.

  • November 18, 2016

    by Katie O’Connor

    This year, for the second time in sixteen years, the winner of the national popular vote tally will not be the winner of the Electoral College vote and will not, consequently, be the next president of our country. In other words, this year, for the second time in sixteen years, the candidate who received the most votes from American voters will not win the election. This can and does happen, of course, because of the Electoral College system.

    There are many proffered explanations for why the Electoral College was created and maintained and none of them are particularly flattering to our democracy. The racist roots of the Electoral College are obvious. At the time our constitution was created, representatives to the U.S. House of Representatives were apportioned based on the three-fifths compromise, which counted each slave as three-fifths of a person for purposes of apportionment. This allowed for increased representation in southern slave states even though slaves could not vote. Subsequently, each state was given a number of electors to the Electoral College equivalent to the state’s two senators plus its number of representatives, furthering the skewed representation by slave states.

    Though it may not have been the reason the Electoral College was created, it soon became equally obvious that the institution furthered a sexist agenda as well. In a direct national popular vote system, a state could double its potential influence in an election by extending the franchise to women. With the Electoral College, though, a state would have the same influence regardless of how many people voted. Thus, the Electoral College disincentivized expanding the franchise and allowed for the continued disfranchisement of women with impunity.