April 2009

  • April 30, 2009
    Guest Post

    By Christopher Hill, State Strategies Coordinator for the ACLU Capital Punishment Project

    During the last general election there was much discussion about the power of the executive branch. One great power that the executive branches of the federal government and most states have is the power to grant clemency.

    The ability to examine a person's life and decide to grant him or her mercy is awesome. This ability is even more incredible in the capital punishment context. It gives the executive the chance to save a life. In 2003, Gov. George Ryan (R-Ill.) commuted the death sentences of all 167 death-row inmates and pardoned four men. He did so because he believed that the state's capital punishment system could no longer be trusted given the numerous exonerations and the documented cases of law enforcement misconduct.

    Clemency can make things right when the complicated and convoluted procedures of the judicial system prevent justice from being done because, for example, a death-row inmate has missed a deadline. It can also make things right when a death-row inmate has shown that he has reformed and deserves the mercy of a life sentence without parole.

    Gov. Jay Nixon (D-Mo.) has that chance. Dennis Skillicorn is scheduled to be executed on May 20, 2009. Skillicorn (left) does not dispute that when he was younger he committed murders and was a thief. While he was addicted to drugs; he did horrific things. (Update, 5/1/09: Although he was convicted of an earlier murder and plead guilty to the Arizona murders, Skillicorn claims that he was not the triggerman in his first conviction and Nicklasson also confessed to being the triggerman in the Arizona murders.) 

    Dennis Skillicorn is never going to be released from prison. In addition to his death sentence in Missouri, he has life sentences to serve in Arizona. Interviews he has given indicate he is remorseful for his crimes and that he understands that he has to be punished for his actions. The issue is whether he should die for them.

    This is where clemency comes in and Dennis Skillicorn has many arguments for clemency.

  • April 30, 2009

    UPDATE: Fri. May 1, 2009, 10:23 a.m. (EST)

    You can now download Keeping Faith with the Constitution at www.ACSLaw.org/KeepingFaith.


    Keeping Faith with the Constitution presents a common-sense approach to interpreting the U.S. Constitution and explains why it is the world's most enduring written Constitution. Authored by legal scholars Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder, the book shows how the Framers inscribed the fundamental values of liberty, equality and democracy into the Constitution and offers an approach to interpreting the Constitution that, as its Framers envisioned, applies the Constitution's text and broad principles to the changing needs and conditions of our society.

    The authors call their approach "constitutional fidelity," and argue that being faithful to the Constitution requires judges to ask not how the Constitution's general principles would have been applied in 1789 or 1868, but rather how those principles should be applied today. As the authors explain, this approach is true to the vision of the Framers, who deliberately left the words and broad principles in the document open to future interpretation and adaptation.

    The book notes the shortcomings of originalism and so-called "strict construction." The authors argue, for example, that if originalism means resolving constitutional disputes according to how those who wrote the text would have resolve them at the time, it would not be faithful to the Framers' own vision. The Framers, they explain, were not so parochial as to bind future generations to their own specific understandings of broad principles. The genius of their accomplishment is that they correctly anticipated that a constitution written in general terms, open to interpretation and adaptation by succeeding generations, would endure and retain its legitimacy even as the nation experienced profound social, economic and political transformations.

  • April 30, 2009

    The Washington Post has become the latest voice to join the broad array of observers supporting the nomination of Dawn Johnsen to lead the Justice Department's Office of Legal Counsel (OLC). The Post joins a bi-partisan group of 70 legal scholars, former OLC directors appointed by Democrat and Republican presidents, the editorial board of The New York Times and Sen. Richard Lugar (R.-Ind.) in extolling Johnsen's qualifications for the position.

    The Post editorialized: 

    Ms. Johnsen is undoubtedly qualified for the position, and she should be confirmed.

    Ms. Johnsen's confirmation has been held up by Republicans concerned that she's an "ideologue," in the words of Sen. John Cornyn (R-Tex.). Ms. Johnsen's nomination squeaked by on a party-line vote before the Senate Judiciary Committee and has been stalled for the past month amid filibuster threats from some Republicans.

    Let's put aside, for the moment, the fact that the Justice Department under President Bush was perhaps the most politicized in a generation -- and that among the most warped sections of the Bush Justice Department was the OLC. It is nonetheless legitimate to ask whether Ms. Johnsen will behave as badly as some of her immediate predecessors.


  • April 29, 2009
    Guest Post

    By Bruce E. Boyden, Assistant Professor of Law, Marquette Law School

    President Obama's first 100 days in office are drawing to a close; that means that there are only 1,361 policy-shopping days left until the next Inauguration. What should President Obama, the first Blackberry-using president, set as his technology agenda during that time?

    One area ripe for change we can believe in is the laws that govern individual behavior on the Internet. The country is in the midst of a revolution in communications technology. The networked personal computer has given almost every individual the power of their own printing press, record press, film studio and radio tower, all with worldwide instantaneous distribution. And it's given those individuals the power not only to speak, but to listen - to anything, from any source, from anywhere in the world.

    The laws that govern all this are struggling to keep up. Our copyright laws, electronic privacy laws and computer security laws were mostly passed in the technological Dark Ages -- twenty or thirty years ago. Those laws need to be brought up to date so that culture can be shared, copyright owners can get paid, reputations can be protected, and emails can be safe from snoops.

    Legislators are busy people, and so far the response to the information revolution has been a series of quick fixes. But patchwork amendments are not enough; the hard work of revisiting the foundational assumptions underlying these laws cannot be postponed forever. Obviously an Administration with a major recession, two wars, health care reform and global warming on its plate can only accomplish so much. But President Obama has already shown that he is not deterred by the difficulty of a necessary task. He's also shown that he can shun easy fixes in favor of a careful, balanced approach, which is what's needed here.

  • April 29, 2009
    Earlier this week, a bi-partisan group of 70 legal scholars lobbied Sen. Richard Lugar (R-Ind.) to support the nomination of his constituent, Dawn Johnsen, to head the Justice Department's Office of Legal Counsel (OLC). Lugar has since announced his support for Johnsen, a former ACS board member. According to Politico, Lugar's defection from those threatening to block Johnsen's nomination all but guarantees that the threats will prove toothless.