• November 6, 2015
    Guest Post

    by Christina Swarns, Director of Litigation, NAACP Legal Defense and Educational Fund, Inc.

    In 1879, the United States Supreme Court declared that the singling out of qualified African Americans for removal from jury service “is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure all others.” Although, in the subsequent 136 years, the Supreme Court has repeatedly condemned the practice of racial discrimination in jury selection, today, African Americans are excluded from jury service in ways that “seem[] better organized and more systematized than ever before.” Case in point: Foster v. Chatman, the jury discrimination challenge that was argued to the Supreme Court on Monday, November 2, 2015.

    Foster challenges Georgia prosecutors’ use of peremptory challenges to exclude African-American prospective jurors from the 1987 trial of Timothy Foster, an African-American man with intellectual disabilities who was charged with the murder of a White woman. Peremptory challenges are lawful opportunities for both prosecutors and defense attorneys to excuse prospective jurors from service in a particular trial. But there are limits to their use: In 1986, the Supreme Court held that these challenges cannot be based on race. Nonetheless, in Mr. Foster’s case, the prosecutors struck every single African-American prospective juror. As a result, an all-White jury convicted Mr. Foster of murder and sentenced him to death.

    When challenged, the Foster prosecutors offered a literal laundry list of supposedly race-neutral reasons for each of the strikes they exercised against the African-American prospective jurors. But the prosecutors’ notes, which were uncovered by the defense team some 20 years after Mr. Foster’s conviction, tell a completely different story. A note indicated that green highlighting “represent[s] blacks,” and the names of all the African-American jurors, but none of the White jurors, were highlighted in green. In their notes, the prosecutors referred to the African-American prospective jurors as “B#1, B#2, B#3,” while none of the White jurors were referred to solely by reference to race. In the prosecutors’ list of prospective jurors to strike, the name of every single prospective African-American juror was at the very top. The prosecutors ranked the African-American potential jurors in case they might “have to” seat one of them, but there was no similar ranking of all of the White prospective jurors. And last but not least, the supposedly race-neutral reasons offered by the prosecutors simply do not hold up: For example, the prosecutors said they struck one 34-year-old African-American juror because she was too close to the defendant’s age of 18, even though they accepted multiple White jurors who were actually closer in age to 18.

  • November 6, 2015

    by Jim Thompson

    In The Huffington Post, Samantha Lachman explains why the Supreme Court might take its first abortion case in nine years.

    In The Boston Globe, ACS Board Member Nancy Gertner reflects on her experience as a federal judge during the era of mass incarceration, and details some of the efforts she and others are taking to address the grievous harm caused to African-American lives and communities nationwide. 

    In The New York Times, Clifford Krauss writes that “the opening of an investigation of Exxon Mobil by the New York attorney general’s office into the company’s record on climate change may well spur legal inquiries into other oil companies.”

    Keith Brekhus at PoliticusUSA reports that House Minority Leader Nancy Pelosi (D-Calif.) has selected six pro-choice Democrats to serve on the Select Investigation Panel on reproductive rights, including Rep. Jackie Speier (D-Calif.), who was recognized for her contributions to the field of reproductive justice at the Bay Area Lawyer Chapter’s Sixth Annual Gala Reception.

  • November 5, 2015

    by Jim Thompson

    At NPR Pam Fessler celebrates recent efforts by several states to revise policies that criminalize the everyday activities of homeless individuals.

    Michelle Chen at The Nation discusses the significance of “banning the box” on job applications for formerly-incarcerated individuals.

    At Salon, Sean McElwee explains how ballot measures similar to those recently passed in Maine and Seattle can strengthen public financing in elections, increasing the diversity of campaign donor pools and reducing the power of big money in politics.

    In USA Today, Deborah Barfield Berry reports that civil rights leader and activist Wade Henderson will step down as president of the Leadership Conference on Civil and Human Rights on Dec. 31, 2016. In the National Law Journal, Tony Mauro praises Henderson’s record of garnering bipartisan support for “legislative campaigns on voting rights, criminal justice reform, hate crimes, gay rights and the rights of the disabled, among others.”

  • November 4, 2015
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    In recent years, religious groups have attempted to use the legal system to impose their beliefs on others in a variety of areas, from health-insurance coverage and healthcare services, to discrimination in public accommodations and employment. Religious groups have typically done so by claiming that they have a statutory or constitutional “religious freedom” right to discriminate, deny services, or be exempted from laws or regulations.

    The New York Times exposes another way in which religious groups are attempting to foist their faith on those who might not share it. More and more frequently, religiously affiliated institutions are requiring people with whom they interact to sign contracts that require any disputes to be resolved through religious arbitration instead of the secular court system.

    Such religious arbitration is typically based on religious law, such as the Bible. Arbitration sessions are often opened with prayers. And the arbitrators are typically adherents of the religion of the entity that is being sued.

    Religious arbitration may make sense in some circumstances. Courts are prohibited from resolving disputes relating to certain internal affairs of a house of worship, including controversies that require interpretation of religious doctrine or involve the selection of ministers. In such situations, religious arbitration may provide the best chance for a disagreement to be resolved fairly.

    But religious arbitration clauses have spread far beyond contracts between houses of worship and their employees or members. The Times reveals that such clauses are being used by a variety of entities and businesses that serve the public, including substance-abuse programs, providers of vacation houses, flooring vendors, and even a sponsor of a fishing tournament.

    In these kinds of circumstances, religious arbitration functions as yet another means for religious groups to force the doctrines of their faiths upon people who do not share those beliefs, and to avoid legal rules that apply to others. Religious arbitration, in that context, is also suspect from a legal and constitutional standpoint.

    Although courts have generally upheld contractual clauses that mandate arbitration to resolve disputes, some of the reasoning underlying such decisions does not apply to religious arbitration clauses: Secular arbitrators usually must rely on the same legal principles that courts do; religious arbitrations follow religious law. Secular arbitrations are subject to limited review by the courts; courts cannot review religious arbitrations at all, however, because courts are barred from interpreting religious law. And secular arbitrators must be impartial; religious arbitrations, on the other hand, may be conducted by the very same religious groups that are being sued.

  • November 4, 2015

    by Jim Thompson

    Ari Berman at The Nation discusses new efforts by congressional Democrats to restore lost provisions of the Voting Rights Act.

    At Vox, German Lopez refutes the deeply misguided myths about transgendered individuals that civil rights opponents employed to block an LGBT nondiscrimination ordinance in Houston.

    In The New York Times, Adam Liptak explains why activists opposed to the death penalty are divided on whether or not to bring a decisive case before the Supreme Court.

    Delphine Damora at Mother Jones reports that America’s prison population is not decreasing fast enough to remediate decades of mass incarceration.