August 2010

  • August 18, 2010
    Guest Post

    By Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School - Los Angeles and Publisher, Election Law Blog.
    Does this week's Ninth Circuit order putting on hold any gay marriages in California pending the resolution of appeals in the case mean that the appellate court is likely to reverse Judge Walker's decision declaring California's Proposition 8 unconstitutional? Or, to the contrary, does the fact that the Ninth Circuit also ordered the Proposition 8 proponents to brief the question whether the initiative proponents have standing to appeal in the case mean that the Court is likely to dismiss the appeal without reaching the merits? I believe caution is in order, and that proponents and opponents of gay marriage should read very little into the Ninth Circuit's order as to how that court is likely to decide the Proposition 8 case. But the Ninth Circuit's decision to issue a stay could increase the chances that the Supreme Court ultimately will side with gay marriage supporters.

    Let's begin with the tenuous relationship between the stay order and an ultimate resolution of this case in the Ninth Circuit. As ACSBlog readers no doubt know, on August 4, federal district judge Vaughn Walker declared unconstitutional under the equal protection and due process clauses California's Proposition 8, an initiated constitutional amendment which bars same sex-marriage. On August 12, Judge Walker denied the request by Proposition 8's proponents to stay his ruling pending appeal, though he issued a temporary stay to allow the proponents time to seek a stay from the Ninth Circuit. Judge Walker's stay denial raised the question whether initiative proponents have adequate standing to bring an appeal in the case (given that California government officials have aligned themselves with plaintiffs' position that Proposition 8 is unconstitutional and were not going to appeal).

    Proposition 8 proponents then sought a stay from the Ninth Circuit; otherwise, under Judge Walker's order, gay marriage would have been legal as of 5 p.m. today. On paper, appellate courts are supposed to give considerable deference to a trial court judge's decision to grant temporary relief such as a preliminary injunction or a stay. In practice, in hot button cases the Ninth Circuit has shown little deference to district court stay decisions and the Supreme Court has shown even less deference to the Ninth Circuit.

    Under the Ninth Circuit's general orders, emergency stay motions are decided by a "motions panel" of up to three judges, assigned monthly on a rotating basis. The judges who decided the Proposition 8 stay order are not the same judges who will decide the ultimate appeal. Instead, three other judges - possibly the judges who decided an earlier appeal in the case involving the use of a video feed of the trial - will be deciding the merits of the appeal.

    So one reason why the Ninth Circuit's decision on the stay is not a likely reflection of what the Ninth Circuit will do on the merits of the appeal is that the decisionmakers are not the same (unless, of course, the same judges on the motions panel are chosen by chance). Even so, some have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.

  • August 17, 2010
    A bipartisan group of former senior Department of Justice attorneys and other federal prosecutors recently lodged an amicus brief with the Supreme Court urging it to leave intact a Louisiana jury verdict against prosecutors who withheld evidence in a case that produced a murder conviction. The unique collaboration of the DOJ and federal prosecutors maintains in its friend-of-the-court brief filed in Connick v. Thompson that prosecutors should be responsible for ensuring that constitutional rights are not subverted in the process of securing convictions. The Supreme Court will hear oral argument in Connick early in its forthcoming term, which starts on Oct. 4. 

    In the Connick case, a jury awarded John Thompson $14 million, in part, because prosecutors withheld evidence to help secure his murder conviction. Thompson spent 18 years in prison and had come close to being executed before he was acquitted in a retrail. Following his acquittal, Thompson sued Harry F. Connick, who led the district attorney's office at the time Thompson was convicted in 1985. (Connick is the father Harry Connick Jr., the Grammy-award winning singer.) The New Orleans district attorney's office has fought the jury award, arguing that it should not be liable for the actions of prosecutors in the case. As The Associated Press noted, the Supreme Court has "approved only narrow instances in which local government agencies can be sued for wrongdoing of their rank-and-file employees."

    Thompson's attorneys have argued that prosecutors violated his rights pursuant to federal law, 42 U.S.C. Sec. 1983, which requires prosecutors to discharge their duties in a manner that does not violate constitutional rights. In Supreme Court precedent regarding Sec. 1983, such as Brady v. Maryland, the high court held that withholding evidence is a violation of prosecutors' obligations. Thompson's legal action maintained that the New Orleans district attorney's office violated the federal law because it failed to train its prosecutors on avoiding Brady violations.

    The coalition of former DOJ attorneys, in its amicus brief, states that its "interest is in ensuring that Section 1983 realizes its promise as a remedy for conduct that causes constitutional violations and that the balance of interests carefully struck by this Court's precedents is preserved. The Court's precedent with respect to section 1983 failure-to-train claims promotes respect for the rule of law by holding municipal entities to account when they demonstrate deliberate indifference to constitutional rights and cause constitutional violations. Although successful failure-to-train claims are, and should be, rare, their continued availability strengthens public respect for the criminal justice system, particularly against criticism that the system is indifferent (if not hostile) to the rights of those charged, especially those wrongly charged, with criminal acts."

    The coalition includes former Assistant Attorneys General and Acting Assistant Attorneys General Bill Lann Lee and William Yeomans, both ACS participants. Counsel for the coalition of attorneys includes former Solicitor General Paul D. Clement, who served during the administration of President George W. Bush, and Stanford law school professor and ACS Board member Pamela S. Karlan. See the entire amicus brief here.

    Oral argument in Connick v. Thompson is scheduled for Wednesday, Oct. 6, 2010.


  • August 17, 2010
    Guest Post

    By John Rother, executive vice president for policy and strategy at AARP.
    On Saturday, we marked the diamond anniversary of a national treasure - Social Security, signed into law on August 14, 1935. With his signature, President Roosevelt began what has become the bedrock of economic security for countless working Americans and their families. In addition to providing retirement benefits for those age 62 and older, Social Security provides benefits that help all generations. Families of soldiers killed in Iraq and Afghanistan, children who lose a working parent, workers who become disabled, widows and widowers - all count on Social Security benefits. In all, 53 million Americans today count on Social Security as a critical source of income.

    It's a time to celebrate Social Security's remarkable past success, and to commit to ensuring our nation's most important program will be strong in the future. It's also a time to counter false assumptions that give rise to so-called "solutions" that instead of strengthening the program, will undermine the retirement security of our children and grandchildren.

    The fact is, Social Security will be as important for future generations as it is for current retirees. In the recession millions of Americans lost their jobs and their pensions and saw their private savings accounts plummet with the fall of the stock market, but Social Security benefits were there, as they have been for 75 years, in good times and bad.

    For the majority of retirees, Social Security can be the difference between aging with independence and aging in financial desperation. To be specific, Social Security provides more than half the income for 72 percent of single individuals age 65+ who receive Social Security benefits and for 52 percent of couples who receive benefits.

    And, yet, as vital as these benefits are, they are modest by any standard. Social Security was never designed to be a worker's sole source of retirement income. Today's average workers' benefits will replace only about $4 of every $10 earned while working. The average retirement benefit in December 2009 was $1,168 per month - about $14,000 a year. For retired women, even less - only $983 a month -- or less than $12,000 a year.

  • August 17, 2010
    The military discharged 428 service members last year for violating its "don't ask, don't tell," policy, reports The Washington Post, citing a Palm Center study. According to the newspaper, the study found that the discharges included "disproportionate numbers of women and minorities."

    The Post notes:

    Women account for 14 percent of Army soldiers but received 48 percent of the Army's "don't ask" discharges in 2009, the study said. Six percent of the Marine Corps is female, but women accounted for 23 percent of its discharges. The Navy discharged only two officers for violating the policy in 2009, and both were Asian. The Army discharged five officers - two were black, one was Asian and two were white, the Palm Center said.

    The study also found that the "military continued to fire mission-critical specialists for being gay in fiscal year 2009." The Palm Center study is here.  

    The Palm Center's Nathaniel Frank talked with ACSblog about the history of the policy that bars lesbians and gay men from serving openly in the military, following an ACS panel discussion on efforts to repeal the policy. Frank's interview is available here and video of the full panel discussion is here. A Washington-Post-ABC News poll from earlier in the year revealed "majorities across party lines favor" allowing gays to serve openly.

  • August 17, 2010
    Guest Post

    By James M. Doyle, a lawyer with Carney & Bassil and former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, a statewide public defender agency. Doyle is the author of a recent ACS Issue Brief, "From Error Toward Quality: A Federal Role in Support of Criminal Process."
    Why not a comprehensive, blue ribbon, top-to-bottom review of the American criminal justice system?

    The fact is, no one can think of an objection, and legislation submitted by Sen. Jim Webb and Rep. William Delahunt that would create a National Criminal Justice Commission to conduct that review has support from all points on the criminal justice spectrum and co-sponsors from both sides of the aisle. The odds favor eventual passage, and that's an excellent development. Any review that takes a grown-up look at the American criminal justice system as a system rather than as an archipelago of isolated (and often adversarial) agencies and functions is a step in the right direction. (For more on this, watch video of an ACS panel on an integrative approach to justice.) Blue ribbon commissions draw talented members who deploy broad credibility in support of their recommendations.

    But if the only thing this top-to-bottom review leaves behind is another report -- even if it's a great report with terrific recommendations -- it will not realize its full potential. The Commission's report can be the beginning of a process, not the end of one. It can reveal something for the best people in criminal justice to do between today and the inevitable next National Commission.

    So far, criminal justice is missing the infrastructure for an enduring, bottom-to-top feedback loop, one that persistently communicates the experiences and insights of the victims, cops, lawyers, judges, and probation and corrections officials at the sharp end of the system both to fellow practitioners in scattered jurisdictions and to remote policy-makers: the legislators, and funders whose decisions shape (and often deform) the practitioners' working lives.

    In a recently released issue brief, "From Error Toward Quality: A Federal Role in Support of Criminal Process," I propose that the criminal justice system develop a mechanism, as medicine and aviation have, to create this loop by identifying "sentinel events"-- wrongful convictions, wrongful releases, and near misses in both categories -- that help us avoid future errors and to analyze and share their lessons. Supporting the ongoing practice of dispassionate, fine-grained, all-stakeholders review of these mistakes could provide a revolutionary new approach to creating a reliable system.