• May 18, 2016
    Guest Post

    by Ronald S. Sullivan, Jr., Clinical Professor of Law and Faculty Director of the Criminal Justice Institute, Harvard Law School            

    This week the United States Supreme Court will consider the case of Lamondre Tucker, an African-American man who was sentenced to death in 2011―under the banner of the Confederate flag. Tucker was convicted in Caddo Parish, Louisiana, a county that is plagued by racially biased jury selection. One recent study found that African-Americans have been excluded from juries in Caddo Parish at a rate that is three times higher than whites, a practice so insidious that it has earned the nickname “blackstriking.”

    An amicus brief filed by the Charles Hamilton Houston Institute for Race and Justice in Tucker v. Louisiana notes, “Of the twenty death sentences imposed in the modern era by Caddo Parish juries, fifteen were imposed on Black defendants. Of those fifteen, ten were charged with the murder of a white victim. Conversely, no white defendant has ever been sentenced to death in Caddo Parish for killing a Black victim. Taken at face value, these numbers suggest that the badges of the Confederacy adorning the courthouse entrance in Caddo Parish signify more than stale remnants of a bygone era.”

    Unfortunately, Tucker’s case is not an isolated incident. Just last month, Kenneth Fults was executed by the state of Georgia despite being represented by a lawyer known for using racial slurs. Fults, an African-American man, was accused of killing a young white woman. After the trial, one of the jurors reportedly explained, "that n***r got just what should have happened . . . I knew I would vote for the death penalty because that’s what that n***r deserved."

    Duane Buck’s case was equally contaminated by racial bias. Buck, an African-American man, was sentenced to death for a crime that occurred 20 years ago after a defense expert testified that Buck’s race was a relevant predictor of his future dangerousness. The prosecutor subsequently asserted that "the race factor, black, increases the future dangerousness . . ." The Texas jury sentenced Mr. Buck to death based upon the finding that he was likely to be a danger in the future. Mr. Buck has asked the U.S. Supreme Court to review his case.

    In South Carolina, Johnny Bennett had his death sentence reversed by U.S. District Judge Mark Gergel because the prosecutor, Donnie Myers, called Bennett, an African-American man, “King Kong,” a “beast of burden,” and other racist names during his trial. Myers also highlighted the fact that Bennett had a sexual relationship with a “blonde-headed lady” in order to fan the flames of racial prejudice. The state attorney general has, not surprisingly, announced that he is appealing Judge Gergel’s decision.

    Even when offered a chance to correct injustices of the not-so-distant past, many prosecutors cling to racially tainted verdicts. These cases are not relics of the past, they are evidence that racial bias continues to infect the entire capital punishment system.

  • May 18, 2016

    by Jim Thompson

    Brentin Mock at The Atlantic explains how a Mississippi school district was able to keep its middle and high schools segregated for six decades following the Supreme Court’s ruling in Brown v. Board of Education.

    The drug manufacturer Pfizer announced Friday that it will no longer sell its drugs to be used in the execution of prisoners, dealing a huge blow to proponents of the death penalty, reports Winston Ross at Newsweek.

    The Senate on Tuesday confirmed Erik K. Fanning’s nomination as secretary of the Army, making him the first openly gay leader of a branch of the U.S. military, celebrates Elliot Hannon in Slate.

  • May 18, 2016
    Guest Post

    by Christopher Wilds, Herbert and Nell Singer Social Justice Fellow, NAACP Legal Defense and Educational Fund

    Imagine being a Black student in a school district where, for decades, one school has almost never enrolled Black students and the predominantly Black school suffers from crumbling ceilings, decades old textbooks, bathrooms without stalls, and discriminatory discipline policies. Today, 62 years after the NAACP Legal Defense and Educational Fund, Inc. (LDF) litigated and won Brown v. Board of Education – the case that declared the doctrine of “separate, but equal” unconstitutional and heralded the end of legal segregation in this country – LDF remains enmeshed in the struggle to eradicate “apartheid schools” – the racially isolated “black schools” that are inferior to their counterpart “white schools” and undermine educational outcomes for far too many African-American children. While the legal victory in Brown has had a significant historical and societal impact, it did not completely eliminate the pervasive racial discrimination and educational inequalities faced by students of color.

    For students in far too many school districts across the nation ‒ including those in St. Martin Parish, Louisiana ‒ racially segregated schools are a fact of life. A report by the Center for Civil Rights Remedies at UCLA noted that the number of majority-minority schools (those with zero to 10 percent white enrollment) has more than tripled in enrollment in the past 25 years. And a report by the Government Accountability Office (GAO) released yesterday details the harms that flow from such racially and economically isolated schools: Specifically, the report found that schools that are isolated by poverty and race generally had fewer resources, more disciplinary actions, and poorer academic outcomes than other schools.

    Despite the pervasiveness of racially isolated schools, desegregation remains a significant challenge ‒ just as it was 62 years ago. The GAO report notes that that the Department of Justice is monitoring and enforcing about 178 open desegregation cases. LDF likewise oversees a docket of about 100 desegregation cases ‒ many of which have been open since the Brown era. LDF’s work in the Thomas v. School Board of St. Martin Parish desegregation case is a powerful example of how and why the contemporary effort to erase the vestiges of segregation in education remains critically important.

  • May 17, 2016

    by Jim Thompson

    A federal judge on Friday ordered Cleveland, Miss., to desegregate its middle and high schools, 62 years after the Supreme Court issued its landmark ruling in Brown v. Board of Education, reports Emma Brown at The Washington Post.

    At Talking Points Memo, Tierney Sneed comments on the Supreme Court’s unanimous, unsigned opinion on the high-profile contraceptive case Zubik v. Burwell, concluding, “The Supreme Court's non-decision to punt the issue reflects not just its intractability, exacerbated by the vacancy left by Justice Antonin Scalia’s death, but also hints of trouble to come when the case goes back down to lower courts.”

    Adam Liptak at The New York Times discusses a recent study that shows the Supreme Court disproportionately favors white men when appointing friends of the court.    

  • May 16, 2016
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center. Simon Lazarus helped draft an amici curiae brief in House of Representatives v. Burwell, filed by CAC on behalf of House Minority Leader Nancy Pelosi and other members of the Democratic Caucus, in support of the Administration.

    On Thursday afternoon, May 12, District of Columbia District Judge Rosemary Collyer ruled unconstitutional the Obama administration’s funding of “cost-sharing reduction” subsidies (CSRs) prescribed by Section 1402 of the Affordable Care Act (ACA), to complement the “premium assistance tax credits” prescribed by Section 1401, by assisting lower-income exchange subscribers to pay for medical services and products. According to an Avelere health study, at least 65 percent of all Obama enrollees are eligible for the subsidies, and 5.9 million people currently use them. The decision upheld a lawsuit filed in November 2014 by the House of Representatives, alleging that Congress had not enacted an appropriation covering the COS subsidies, and hence, the administration’s funding of them violated the constitutional command that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

    When then-Speaker John Boehner first proposed the lawsuit in July 2014, a broad consensus of experts warned, in the words of former House legal counsel (for Congresses controlled by both parties) Charles Tiefer, that “it is a bad idea for a Speaker to file such an embarrassing loser.” Nonpartisan experts like Tiefer knew, as he wrote in testimony submitted to the House Rules Committee considering Boehner’s resolution to file the case, that applicable Supreme Court precedents dictated “no standing . . . for anything remotely like” the House’s lawsuit.

    No good would be served here by restating the precedents that Judge Collyer chose to disregard or, as she put it, distinguish and limit. Briefs filed by the Department of Justice and allied amici have done that job, and will surely repeat when the case is appealed to the D.C. Circuit. But it is worth briefly spelling out the real-world consequences of Judge Collyer’s arguments purporting to distinguish pertinent standing doctrine, in light of the separation of powers policy considerations undergirding established congressional standing limitations.

    In sum, given the political dynamics of inter- and, especially with respect to Congress, intra-branch behavior patterns and incentives, displacing those precedents in accord with Judge Collyer’s decision will provide irresistible incentives – for one house of Congress or, more realistically, internal factions with political leverage – to trigger lawsuits over a virtually limitless array of inter-branch or partisan disputes previously resolved through political processes, formal and informal.