July 2010

  • July 30, 2010
    Guest Post

    By David Carroll, Director of Research, National Legal Aid & Defender Association (NLADA)
    Recently the St. Louis Today reported that public defenders in that city are considering refusing new cases, as their colleagues at the Missouri State Public Defenders (MSPD) have already done in Springfield and Troy. The news story also reports that the prosecuting attorney calls the whole public defender caseload issue "contrived" because prosecutors handle a far greater percentage of cases than do public defenders.

    Far from being a "contrivance," the Missouri public defender system has been one of the most overworked and underfunded right to counsel systems in the country for its entire history. "It is not possible [for public defenders] to control the number of criminal cases which are filed, the seriousness or complexity of the cases, or the number of persons who may appear as indigent defendants. The Constitutional right to counsel in conjunction with a lack of control over the amount of services to be delivered creates a situation in which the management options are sharply limited. Administering the public defender and appointed counsel programs within the constraints of the statutes becomes increasingly difficult as costs and caseloads climb." With such clarity, the Missouri Public Defender Commission accurately predicted the caseload problems that they would face over the next three decades in a report sent to the state legislature in 1979.

  • July 30, 2010
    Guest Post

    By Roger Bearden, Director of the Disability Law Center at New York Lawyers for the Public Interest (NYLPI). For more information about NYLPI, visit its Web site.

    We have much to celebrate on the 20th anniversary of the Americans with Disabilities Act, but for many individuals with disabilities who continue to be confined in institutions, their day of celebration has yet to come.

    The ADA set out a comprehensive mandate to eliminate discrimination against individuals with disabilities. While some forms of discrimination are apparent, others have proven more insidious, such as the decades-old practice of confining individuals with disabilities to institutions.

    In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court considered the case of two women in Georgia who each had been confined in a state psychiatric hospital for several years despite the determination by their treating professionals that they could live and receive care in the community. The Court held that unjustified isolation of individuals with disabilities violated the ADA and an individual with mental illness may sue a state for failing to serve him or her in the most integrated setting appropriate to his or her needs.

  • July 29, 2010
    The Senate is moving far too slowly on confirming judicial nominations, causing more vacancies on the federal bench and delaying justice for Americans, President Obama said earlier this week at the White House.

    ACS is launching JudicialNominations.org, a resource that will offer all those concerned about the ability of federal courts to operate efficiently to stay on top of the judicial nominations process. JudicialNominations.org brings together for the first time an array of information, including an interactive map that allows the user to select an individual district or circuit court and identify the number of vacancies in that area, how long those vacancies have existed, whether anyone has been nominated to the seats, and how long nominees have waited for confirmation. The Web site will also provide links to congressional statements, videos, upcoming hearings and other events, and the latest nomination news.

    During his Rose Garden address, Obama said he had urged leaders of both parties in Congress, to "work with us to fill the vacancies that continue to plague our judiciary. Right now, we've got nominees who've been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate."

    The president continued, "If we want our judicial system to work - if we want to deliver justice in our courts - then we need judges on our benches. And I hope that in the coming months, we'll be able to work together to ensure a timelier process in the Senate."

    Visit JudicialNominations.org today and check back frequently to follow developments on judicial nominations and vacancies on the federal bench.

  • July 29, 2010
    Guest Post

    By Jeffrey D. Clements. Mr. Clements is former Chief of the Public Protection and Advocacy Bureau in the Massachusetts Attorney General's Office, and now focuses on litigation and appeals with Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United v. FEC case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. Mr. Clements is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights."
    A few days ago, Senate Republicans united to defeat the Disclose Act, critical legislation intended to respond to the Supreme Court's invalidation in Citizens United v. FEC of the ban on the use of corporate general treasury funds to make independent political expenditures. The House passed the Act in June. But despite the wishes of large majorities of the American people and of 58 of 100 Senators, the legislation could not get past a Republican filibuster.

    Following the modern and somewhat insulting acronym trend, the formal name of the legislation is the "Democracy Is Strengthened By Casting Light on Spending in Elections Act". The Senate version of the Disclose Act would amend the Federal Election Campaign Act of 1971 to restrict political contributions, independent expenditures and electioneering communications by government contractors, recipients of TARP bail-out money, holders of federal off-shore drilling leases, and foreign national corporations. The Act would apply to "corporations and other organizations" and requires reporting and disclosure of the identity of donors to an independent expenditure campaign, disclosure of political spending to shareholders and members, and certification and "stand-by-your-ad" statements by responsible officers of the corporation ("I am XXX and I approve this message.")

    In January, President Obama rightly called the Citizens United decision a "strike at democracy itself." Most Americans agree. According to a recent comprehensive poll about Citizens United, 82% of respondents worried that Congress "will not go far enough to keep corporations from having too much influence," and 77% believe that Congress should promote a Constitutional amendment to address the problem.

    Yet, in a measure of how damaged our democracy has become due to special corporate interest money, a minority of Senators representing a fraction of the American people killed even the modest response of requiring reporting and disclosure of corporate political spending, and restricting such spending by certain foreign corporations and government contractors.

    In doing so, the surreal and undemocratic world of Washington circa 2010 was on full display:

    First, preference for action by a wide majority of the American people and even a wide majority of the US Senate doesn't matter. The bizarre filibuster rule, appearing nowhere in the Constitution, again allowed legislation to "fail" despite the support of 58 Senators representing 3/4 of the States and of the American people. Once again, regardless of the wishes of the other 306 million Americans, those fighting for necessary reform were reduced to begging unsuccessfully for the support of Senators Collins and Snowe, representing the 1.3 million good people of Maine.

  • July 29, 2010
    Inside Out
    Barry Eisler

    By Barry Eisler, an award-winning author of bestselling thrillers. Eisler spent three years in a covert position with the CIA's Directorate of Operations and has worked as a technology lawyer. Eisler also blogs on torture, civil liberties and the rule of law.
    As a thriller writer, blogger, and former CIA officer who continues to adhere to his oath to protect and defend the Constitution, I've never been so satisfied with one of my novels as I am with Inside Out.

    I'm a big believer in the power of fiction to promote ideology, and in fact addressed this subject recently in an essay for NPR on George Orwell's Nineteen-Eighty-Four. I'm appalled at how effectively the right has been using fiction to promote torture, and conceived of Inside Out in part as a way to fire back: a means of depicting not a cartoon fantasy, but rather the true causes and consequences of torture, consequences that include worsening erosion of our values, increased damage to national security, and the continued degradation of the Constitution itself.

    Of course, Inside Out is filled with great characters, edge-of-your-seat action, and steamy sex - it's a thriller, after all. But what sets it apart from most works of the genre is the timeliness and relevance of the story. The ninety-two interrogation videos the CIA confessed last year to destroying, and which form the foundation for the book's plot, are back in the news now, as independent prosecutor John Durham concludes his two-year obstruction of justice investigation. And the other subjects at the heart of Inside Out - torture, ghost detainees, renditions, the real nature of America's Establishment - continue to be the most profound and controversial political issues of the day.