Let's Get Free

A Hip-Hop Theory of Justice

By Paul Butler

[Available Here]

Let's Get Free: A Hip-Hop Theory of Justice is about why locking up so many people is bad for the average law-abiding citizen. It might not be a thesis you'd expect from me, a former prosecutor, but making the streets safer is exactly why I wrote the book.

The U.S. has the highest rate of incarceration in the history of the planet. We have 5 percent of the world's population, and 25 percent of the world's prisoners. Let's Get Free's main argument focuses on the "tipping point" that criminologists have demonstrated about this level of incarceration. When too many people are locked up, the crime rate actually goes up. Too much prison has the ironic consequence of being crimogenic.

Let's Get Free suggests ways that we can safely reduce the number of people in prison. In addition to safer streets, a big advantage would be the diversion of billions of dollars out of locking people up (which costs about $50,000 annually per inmate) and back to more productive areas like education, health care and the environment. The fixes that Let's Get Free recommends range from helping at-risk students graduate from high school, to getting lead out of the environment (a high percentage of the people in prison for non-drug related crimes suffered lead poisoning as a child, which affects their brain in a way that makes them more violence-prone) to ending racial profiling.

The book also includes more controversial recommendations, including strategic jury nullification to protest the war on drugs. Let's Get Free calls for "Martin Luther King jurors" who would consider acquitting defendants in non-violent drug cases, even if the defendant is technically guilty. This kind of protest is perfectly legal, and was credited with hastening the end of alcohol prohibition, the government's last failed "war on drugs."

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Lawyers Harangue Solicitor General: In their brief on civil immunity for the architects of torture, attorneys representing four former Guantanamo detainees offered what "may be the most eloquent statement on the issue I've seen yet," says Daphne Eviatar at The Washington Independent.

Detainee Affairs Resignation: Phillip Carter is leaving his post as deputy assistant secretary of defense for detainee policy. Glenn Greenwald and Marcy Wheeler offer their takes.

OLC Nominee: Is Dawn Johnsen on the cusp of being confirmed as the Office of Legal Counsel's top lawyer?

KSM & the Death Penalty: Critics are concerned that executing Khalid Shaikh Mohammed and others convicted in terror-related charges may martyr them.

More KSM: Adam Serwer untangles the arguments for and against trying KSM in federal court at The American Prospect's blog.

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A new report by the Transform Drug Policy Foundation outlines how drugs might be regulated in a post-prohibition age.

On the pace of decriminalization, the report warns:

Proceeding on the precautionary principle -- that is, bringing in any new regulatory regimes in an incremental, cautious way -- represents the most constructive and responsible way of developing such regimes. Such an approach both ensures that each regulatory step can be carefully assessed, (and reviewed if unintended negative outcomes emerge), and allows individual countries and/or regions to fine-tune their approach according to local economic, cultural and behavioural norms.

A five-point spectrum is provided for how various substances might be regulated, ranging from perscriptions to unlicensed sales. The authors specifically highlight marijuana as the most likely candidate for decriminalization, in light of recent developments towards decriminalization. 

[H/T: Matt Kelley. Image via danhydankoht.]

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This fall's Supreme Court calendar features only one environmental law case - a bit of a relief compared with last term, when the Court heard five environmental appeals and the "green" side lost all five. Yet that case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, is a sleeper with the potential to reshape both the Court's Fifth Amendment takings jurisprudence and its traditional deference to state courts' interpretation of state common law.

What's wrong with "beach renourishment," the innocuous-sounding practice of replenishing sand along storm-eroded coastline, as authorized by Florida statute and carried out at great public expense? According to petitioners, it deprived their property of its "oceanfront" character, by widening the public side of the beach and replacing the traditional dynamic boundary that tracked the mean high water mark with a new, fixed line. They sued in state court - first to enjoin the renourishment program, then for monetary compensation, claiming a taking of their property rights.

The Florida Supreme Court disagreed. In a lengthy opinion that cites Florida case law and authorities dating back to Blackstone, it held that "under Florida common law, there is no independent right of contact with the water"; and that the statute adequately preserves the owners' other rights, including their right of access to the beach and the water. Absent an identifiable lost property right, there could be no taking and no compensation owed. Two Florida justices dissented, and petitioners appealed to the U.S. Supreme Court.

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For months now, we have been waiting for congressional action on the Employment Non-Discrimination Act (ENDA), (HR 3017) and (S1584), federal legislation to end workplace discrimination based on sexual orientation and gender identity. There has been a sense that action on this bill was due shortly after work was completed on the hate crimes bill, which was signed into law last month.

Recently, House and Senate Committees held hearings on ENDA. Testimony in both chambers in favor of this measure has been compelling, illustrating the nationwide problem of job discrimination against lesbian, gay, bisexual and transgender people, outlining the inadequacy of federal law to address the issue, delineating the inconsistent patchwork of state and local laws that presently exists, and demonstrating how enacting ENDA to include its provisions among our nation's existing system of non-discrimination laws would help correct these problems.

ENDA's provisions - banning discrimination in workplaces while protecting religious freedom by including the same religious exemption that currently exists in Title VII - strike the correct balance between the needs of employees and employers, between the need to end discrimination levied against people because of the bias of others while ensuring that businesses can function effectively with an appropriate focus on productivity and sustainability. For this reason, many corporations support ENDA, including those in states where business has experience with non-discrimination laws including similar provisions. A Government Accounting Office (GAO) report issued on October 1, 2009, describes in great detail the experiences of the states that have state-level non-discrimination laws that bar these types of discrimination, some of them in place for more than three decades. Similarly, experience with the implementation of federal non-discrimination laws demonstrate that these laws function effectively as intended, by establishing legal requirements that prevent discrimination in the first place, by providing equal opportunity for job candidates and employees, and by remedying discrimination when it has occurred and can be proven through solid evidence. This legislation is well-written and will be effective.

Mark-up was postponed this week, but from my perspective it should be rescheduled immediately or soon after the Thanksgiving recess. There is no reason to wait to enact this legislation, which is needed and long overdue.

As a member of the employment discrimination bar, as I look ahead to when ENDA is law, I can see that ENDA will work as intended. Employers will understand their basic obligations under our system of federal laws designed to treat all workers fairly, and to ensure that no one is refused a job, denied a promotion, or fired because of personal characteristics that have nothing to do with work. This law will assist employers and employees alike, because it will convey to everyone that job candidates and employees are to be evaluated and treated in accordance with those factors that make a difference to business and in the workplace: a job candidate's credentials, qualifications and experience, and employee's skills, talents, hard work and productivity. These are the worker attributes that contribute both to the bottom line of employers, and to our nation's productivity.

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The Genetic Information Nondiscrimination Act takes effect today. According to the National Human Genome Research Institute, "The long-awaited measure, ... debated in Congress for 13 years, will pave the way for people to take full advantage of the promise of personalized medicine without fear of discrimination."

The Los Angeles Times reports: 

The most sweeping federal anti-discrimination law in nearly 20 years takes effect today, prohibiting employers from hiring, firing or determining promotions based on genetic makeup.

Additionally, health insurers will not be allowed to consider a person's genetics -- such as predisposition for Parkinson's disease -- to set insurance rates or deny coverage.

[Image via Lawrence OP.]

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The False Claims Act allows private citizens to prosecute fraud on behalf of the federal government. It dates back to the 1860s, when Congress passed the act to address fraud on the part of government contractors who supplied the Union Army during the Civil War.

Liability under the False Claims Act is robust: Damages are trebled, civil penalties are assessed for each violation, and the whistleblower can recover his or her attorney's fees. Because the whistleblower also shares 15 to 30 percent of the government's recovery, the False Claims Act is a powerful incentive for whistleblowers to step forward with inside information about fraud and abuse in government contracts. The financial incentives that underlie the False Claims Act, though, are generally reserved for whistleblowers with nonpublic information about fraud in government contracts. The so-called "public-disclosure bar" prevents non-whistleblower plaintiffs from bringing opportunistic suits based on information that is already public knowledge.

But the exact parameters of the public-disclosure bar are unclear and have divided federal courts. This term, the United States Supreme Court will resolve this issue in Graham County Soil & Water Conservation District v. United States ex rel. Wilson.

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Despite some perceptions to the contrary, women lag in leadership roles across an array of sectors, writes Marie Wilson for The Washington Post's On Leadership page.

Wilson, founder and president of the nonprofit advocacy group, The White House Project, notes a new report from the group showing, "The majority of Americans are comfortable with women leading in all sectors, but the reality is women hold only 18% of leadership positions across the 10 sectors we examined, including politics, business, law, sports, academia, journalism, religion, film/TV, nonprofit, and military."

The group's study, "Benchmarking Women's Leadership," found that women are in fact losing ground in several fields, such as politics. Wilson writes, that in the last decade woman have fallen behind "as elected statewide executive officials and have made only incremental gains in Congress, where they currently comprise only 17% of leadership."

In the nonprofit sector, Wilson notes the study found women underrepresented in leadership positions and that their pay continues to be less than their male counterparts.

"Women comprise 75% of nonprofit employees, but hold only 26% of leadership positions," Wilson states. "Women nonprofit CEO's make only 74% of what their male counterparts earn." Moreover, the study found, that "women - and particularly women of color - are far from achieving parity in the arenas in which their participation and inclusion matters most: positions of leadership."

Wilson, a longtime advocate for equality, in part, concludes:

I have been an advocate for women's issues for over 30 years. From the feminist and civil rights movements of the 1960s and 70s to today's ‘post-modern' struggles for equality, I have learned three important things: increasing numbers and changing culture are not mutually exclusive but mutually reinforcing vehicles; action must be taken from the top down and the bottom up; and instituting change cannot be limited to one sector, but must be tackled in every sphere.

The White House Project's entire study is available here. 

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The National Voter Registration Act (NVRA) has sputtered in removing hurdles to voter registration and the Obama administration and state election officials must renew their efforts to bolster the law, writes Estelle Rogers in an Issue Brief released by ACS.

Congress passed the NVRA, in part, to increase voter registration and to prod government to encourage voting. When it was enacted, the NVRA was "heralded as a landmark law that would usher in a new era of universal or nearly universal, enfranchisement and political participation," Rogers states in "The National Voter Registration Act: Fifteen Years On."

But Rogers, the consulting attorney at Project Vote, maintains that while the law has produced some successes, it is hobbled by poor implementation and execution of some its key provisions.

Rogers writes:

Without question, the least successful provision of the NVRA is the requirement that social service agencies and offices serving the disabled provide voter registration services similarly to motor vehicle offices. While this requirement was a promising way of reaching out to citizens who didn't interact with DMVs, such as those too impoverished to drive or own cars, the reality has not measured up to the promise. This disappointing track record is due to widespread non-compliance with the mandates of Section 7 and a failure of enforcement by the Department of Justice, particularly in recent years, not with any lack of clarity in the statute itself.

Section 8 of the NVRA states, "Each state shall insure that any eligible applicant is registered to vote ... and conduct a general program that makes a reasonable effort to remove the names of ineligible voters." But Rogers, says that provision has also been hampered by officials.

"The registration administration provisions of Section 8 are, for the most part, drafted clearly but nevertheless have been widely ignored," she writes. "Significantly increased awareness and enforcement of these provisions is necessary to fulfill the potential of Section 8."

Federal and state officials' leadership is needed to improve the NVRA, Rogers maintains. The Justice Department, in particular, must "provide much needed guidance and enforcement of sections 7 and 8." And state election officials, she writes, must aggressively approach "their responsibilities under the NVRA." For example, Rogers says that states' top election officials should ensure that election administrators "do not impose unreasonable restrictions on registration drives, and that motor vehicle, disability, and social service agencies consistently fulfill their duties under NVRA."

Download a pdf version of Rogers' Issue Brief here and for additional analysis of the law, see her ACS guest blog here. 

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Writing for The Root, Professor Sherrilyn Ifill takes issue with an op-ed by Judge J. Harvie Wilkinson III, published in The Washington Post earlier this year. Ifill, a University of Maryland law school professor, describes the piece as "a stunning breach of manners and an embarrassing display of unwarranted hysteria about what Wilkinson described as rumors of a political 'takeover' of the 4th Circuit."

In his piece, Judge Wilkinson, former chief judge of the U.S. Court of Appeals for the Fourth Circuit, wrote that "the U.S. Court of Appeals for the 4th Circuit is set for a takeover," at the hands of President Obama. 

"Popular commentary has it that the court, on which I serve, is a fortress or bastion or citadel of conservatism," Wilkinson stated. "Discussion of coming changes suggests more the fruits of a successful military campaign than the result of an election giving our new president the right to nominate members to a judicial body."

Ifill replies: 

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The Torture Memos

Rationalizing the Unthinkable

By David Cole

[Available Here]

What should a lawyer do when asked if it's legal to slam suspects into walls, strip them naked, deprive them of sleep for eleven days straight, force them into cramped stress positions and small dark boxes for hours on end, and waterboard them until they fear they are drowning? The answer should be obvious. Such conduct is flatly forbidden - by US and international law. It is cruel. It is inhumane. It is degrading. And it is torture.

When lawyers in the Bush administration's Justice Department were asked that question, however, they said yes. And they continued to say yes, in secret, even as the law developed in public to confirm the absolute illegality of such conduct. Instead of requiring the CIA to conform its conduct to the dictates of law, the lawyers became accomplices to torture, twisting the law to facilitate abuse.

How did they do so? For years, we could only speculate - all but two of the memos on the issue were secret, including all the memos that discussed the CIA's tactics in any way whatsoever. Thanks to a lawsuit by the ACLU and a more forthcoming approach by the Obama administration, we can now see just how lawyers in the Justice Department's Office of Legal Counsel rationalized the unthinkable. The documents I have reproduced in The Torture Memos are the "smoking gun" in the United States' descent into torture. They allow readers to see, first-hand, how law -- and lawyers -- failed.

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By a vote of 59-39, the Senate confirmed President Obama's first judicial nominee to the U.S. Court of Appeals for the Seventh Circuit this evening. Judge David Hamilton's nomination proceeded past a threatened filibuster earlier this week when the Senate voted for cloture 70-29.

Details of the confirmation vote are available here.

Other nominees also progressed in the Senate today. The Judiciary Committee forwarded two nominations for consideration of the full Senate: Jane Branstetter Stranch to the U.S. Court of Appeals for the Sixth Circuit, by a vote of 15-4; and Judge Christina Reiss for the District of Vermont, on a voice vote.

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Does your employer have access to your personal e-mail accounts if they are accessed at work? The answer was once, almost uniformly, "yes."

The Wall Street Journal reports: 

In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.
Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.

Recent decisions cited by the Journal include cases in New Jersey and San Francisco resolved in favor of employees, who were determined to have a reasonable expectation of privacy. The San Francisco decision is being appealed to the Supreme Court.

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Lawmakers are increasingly pushing back against the Supreme Court's conservative majority, which has issued a string of recent decisions that limit Congress' power, writes Simon Lazarus for Roll Call. Lazarus, public policy counsel for the National Senior Citizens Law Center, says that a growing group of congressional leaders has "caught on to the court's bellicosity, increasingly audible since Bush nominees John Roberts and Samuel Alito replaced the mellower Rehnquist and more centrist Sandra Day O'Connor."

Lazarus examines several high court rulings that "slight Congress' intent, constrain its authority, hamper its capacity to legislate, and undermine its ability to ensure that laws are effectively enforced." For example, earlier this year, the Supreme Court ruled 5-4 in Ashcroft v. Iqbal that judges have much greater discretion to quickly dismiss lawsuits. Lazarus says that the Iqbal majority "instructed trial judges to dismiss cases outright unless plaintiffs come to court pre-armed with ‘plausible' evidence of a defendant's liability."

But Congress, Lazarus maintains, is fighting back by advancing legislation that will roll back some the high court's recent actions. Indeed, Sen. Arlen Specter already introduced a bill to restore pleading standards.

Lazarus concludes that it is time Congress responds:

These disparate, often below-the-radar actions by the court threaten Congress' capacity to perform its constitutional role. The recent flurry of court-targeting actions on Capitol Hill could augur that a historic fight has at last been joined.

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Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit ruled that a gay public defender must be compensated for the health insurance denied to his partner under the Defense of Marriage Act (DOMA).

The San Francisco Chronicle reports: 

[Judge Reinhardt] said the 1996 federal law, the Defense of Marriage Act, violates the court's anti-discrimination rules for court-supervised employees. It also deprives them of their constitutional right of equal protection by denying benefits based on their gender and sexual orientation, Reinhardt said.

Reinhardt issued the ruling as head of the court's committee for resolving personnel disputes concerning public defenders. The decision thus bears no precedential value.

Reinhardt, the court's "liberal lion," is not alone in ruling for personnel challenging DOMA. The more conservative Chief Judge Alex Kozinski has also sided with court employees seeking benefits for same-sex partners.

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