July 2016

  • July 28, 2016
    Guest Post
    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department
    Baltimore State’s Attorney Marilyn Mosby recently announced that her office would drop criminal charges against the three remaining Baltimore city police officers who were implicated in the death of Freddie Gray in April of 2015. Mosby’s office had initially charged six Baltimore officers in Gray’s death; three had been acquitted and the trial of one other officer ended when the jury failed to reach a verdict. I had commended Mosby for her courage and decisiveness in bringing the charges against the officers last May, just as I will commend her courage and decisiveness this week in deciding not to proceed criminally against the three remaining police officers who had faced charges in Gray’s death.
    Mosby was in the unenviable and ultimately untenable position of seeking justice for Freddie Gray and for those residents of communities of color in Baltimore who have borne the brunt of the Baltimore police juggernaut. In choosing to charge the Baltimore police officers criminally, Mosby was also, albeit indirectly, seeking justice for other African American men and women who had died at the hands of the police: in Cleveland; Chicago; Mt. Pleasant and Staten Island, NY; North Charleston, South Carolina; Hayward, California; Waller County, Texas, Washington, DC, and too many other locations in the United States.
    In May of 2015, when the officers were charged in Gray’s death, I expressed reservations regarding the likelihood of the officers being found guilty of any of the more serious charges, including “depraved heart” murder. The challenges facing prosecutors in convicting on-duty police officers criminally in the deaths of individuals in their custody are formidable, and in the cases involving the “Baltimore Six,” insurmountable.
    I asked at the time: “Will Baltimore and Freddie Gray see justice?” And I expressed skepticism that justice would be the result for Baltimore or for Freddie Gray. What has been on prominent display in the fifteen months since Gray’s death and the Baltimore officers being charged criminally is the criminal justice system, a system where justice is too often elusive and too frequently aspirational, particularly when the victims are men and women of color and the defendants are law enforcement officers.
  • July 28, 2016
    Guest Post

    by Anupam Chander, Martin Luther King, Jr. Professor of Law and Director of the California International Law Center at UC Davis. Recipient of a Google Research Award supporting related research           

    In 2013, Microsoft was staring at an order that risked its foreign business. The trust of its foreign users was at stake. A federal magistrate judge in New York had ordered Microsoft to produce emails from someone implicated in a narcotics case that were stored on Microsoft’s computers in Dublin, Ireland. While the identity of the target remains secret to this day, many observers assume that the person is foreign because of Microsoft’s policy to locate the records of a user close to that person’s residence. The court warrant thus meant that even if an Irish person used Microsoft’s computers in Europe, a U.S. court could demand that information when it wanted. The order effectively enlisted U.S. companies as the eyes and ears of U.S. courts worldwide.

    Microsoft appealed, drawing the support of Apple, Amazon and numerous other major technology companies (though not all of them). Even the Irish government, in a relatively rare move, filed a brief in the U.S. case, observing that it had a mutual legal assistance treaty with the United States that provided an official process to enable U.S. courts to obtain information in Ireland. Ireland noted what it saw as “potential infringements by other states of its sovereign rights with respect to its jurisdiction over its territory.” It noted that it would be “pleased to consider, as expeditiously as possible, a request under the treaty…”

    This month, the Second Circuit Court of Appeals ruled in Microsoft’s favor, holding that Microsoft’s Irish computers lay beyond the reach of the search warrants issued under the Stored Communications Act, a 1986 federal law. Civil liberties advocates, not just U.S. internet companies and the Republic of Ireland, should breathe a sigh of relief.  

    Some have worried that this decision will lead countries to insist on data localization—the requirement that data about the citizens of a country mostly stay within the country. Elsewhere I have criticized data localization as a measure that erodes free expression, enhances authoritarian control, undermines local enterprise, and reduces trade. The critics of the Second Circuit decision are indeed right that the decision makes the siting of a computer server more important.

  • July 27, 2016

    By Kevin Battersby Witenoff

    A Texas police officer on Tuesday alleged that Prairie View police officials redacted much of his testimony regarding the arrest of Sandra Bland, says Michael McLaughlin at Huffington Post.

    The Editorial Board at The New York Times reports that wealthy towns in New Jersey have evaded building more than 100,000 homes meant to assist low- to moderate-income families.

    “The results of this election will go a long way toward deciding the extent to which the courts will protect the voting rights of all Americans or leave the most vulnerable out in the storm” writes Dahlia Lithwick in Slate

    In the Huffington Post, Sen. Dianne Feinstein (D-Calif.) warns that the Senate is setting a risky precedent for judicial confirmations by refusing a hearing for Chief Judge Merrick Garland. 

  • July 20, 2016
    Guest Post

    by Barry Friedman, Jacob D. Fuchsberg Professor of Law at New York University School of Law, Director of the Policing Project and author of the forthcoming book, Unwarranted:  Policing Without Permission (Farrar Straus and Giroux 2017).

    In light of the deeply troubling events of the last couple of weeks—the shootings by police of Alton Sterling and Philando Castile, and the shooting of police officers in Dallas and Baton Rouge—the country rightfully is preoccupied with how to discuss, and address, issues of policing and race.

    Here, I want to turn to law—which has both exacerbated the problem, and can perhaps offer a somewhat novel solution for how to address it.

    First, the problem. Many people today suggest that one of the reasons why policing falls most heavily on communities of color is unconscious racial bias, or “implicit bias.” There is growing evidence in support of the claim. This is important for two reasons. First, it helps us understand that much of what is happening, or has happened, may have occurred in the absence of intentional racial animus. And second, it explains how—nonetheless—these many individual incidents can together add up to be a national crisis. The phenomenon of unconscious racial bias suggests that when officers exercise their discretion in individual cases, they tend—subconsciously—to be drawn to over-enforcement against racial minorities, which in the aggregate can produce observable and troubling racial effects. 

    To the extent that this indeed is the problem, it is instructive to see how much law is to blame here. One reason why individual biases have such a pronounced effect in the criminal justice system is because of the enormous discretion police officers possess—too much of which is the result of ill-advised Supreme Court decisions. The justices consistently resist adopting bright line rules that limit discretion, while putting such rules in place to grant it. The Supreme Court has said officers may arrest for any offense, no matter how small or insignificant. The Supreme Court also has said pretextual stops—meaning stops that are ostensibly about traffic enforcement but really are just an excuse to look for drugs or other evidence—are just fine. The Supreme Court has upped the incentives to conduct stops and arrests by allowing numerous other actions to follow, be they frisks or full-blown searches. Even if a stop, search or arrest violates state law, the justices have held that any evidence that is obtained still is admissible. The net result is enormous over-enforcement, which the data makes clear has occurred in racially discriminatory ways.

    Then, as is all too familiar, under Supreme Court doctrine it is almost impossible to hold a government liable under the Equal Protection Clause when these practices fall disproportionately on people of color.

  • July 19, 2016
    Guest Post

    by Harsh Voruganti, Founder and Principal of the Voruganti Law Firm

    As of today, July 15, 2016, there are currently 84 vacant Article III federal judgeships across the country, with over a dozen more that will come open in the next few months. In other words, approximately one in ten federal judgeships is currently sitting vacant, leading to judicial backlogs in the affected courts. Unfortunately, due to an obscure Senate theory called the Thurmond Rule, this vacancy rate will only increase in the coming weeks.

    Despite its moniker, the Thurmond Rule is not a formal Senate rule, but rather an informal theory. Under this theory, at some point in a Presidential election year, the Senate will cease considering judicial nominations presented by the President and leave their respective vacancies open for the next President to fill. The exact date at which the Thurmond Rule is triggered is unclear, with some arguing that June 1 is the date the Thurmond Rule is initiated. For his part, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) has indicated his plan to trigger the Thurmond Rule upon the Senate recess in mid-July

    The origin of the Thurmond Rule is unfortunately unclear.  Democrats citing the “rule” during George W. Bush’s Presidency dated it back to Sen. Strom Thurmond’s (R-SC) blocking of judicial nominations made by the Carter Administration in 1980.  However, others argue that the rule had its origins in the failed nomination of Abe Fortas to be Chief Justice of the Supreme Court in 1968.  The “rule” has been cited by both Democratic and Republican Senators in supporting their decision to slow down the judicial nominations of an opposition President. 

    Regardless of the rhetoric on the issue, there is virtually no precedent for a complete shutdown of judicial nominations upon the summer recess. Looking back at the final years of the Carter, Reagan, H.W. Bush, Clinton, and W. Bush Presidencies, each Presidency has seen confirmations of judges occur after the summer recess. In 1980, when the Thurmond Rule was supposedly first invoked, the Senate confirmed two circuit court judges and eleven district court judges after the August recess. In 1988, a Democratic-majority Senate confirmed two circuit court judges and nine district court judges after the August recess. In 1992, a Democratic-majority Senate confirmed three circuit court judges and nine district court judges post-August. In 2000, a Republican-majority Senate confirmed four district court judges in October. In 2008, a Democratic-majority Senate confirmed ten district court judges in late September. Since the “inception” of the Thurmond Rule, every single President has seen district court confirmations post-recess, and three of the last five have seen circuit court confirmations. Averaging out the numbers, a President could reasonably expect one circuit court confirmation and nine district court confirmations post-recess. As there are currently nineteen judicial nominees pending on the Senate Executive Calendar, there is no reason why President Obama cannot see similar confirmation rates.    

    Additionally, many of the nominees confirmed in previous Congresses were nominated and processed late in the Presidential election season. In 1980, the Senate confirmed one judge in December, Justice Stephen Breyer, who was nominated after the Presidential election. In 2008, the Senate Judiciary Committee, under the Chairmanship of Patrick Leahy, held a hearing on ten district court nominations in mid-September, voting and confirming the nominees before the end of the month. Presidents Ronald Reagan and Bill Clinton saw their last judicial confirmations in October of their final term, while Presidents George H.W. Bush and George W. Bush saw theirs in late September. 

    The judicial confirmation pipeline in the Senate today has slowed to a crawl. In contrast to 68 judges confirmed by a Democratic Senate in the last two years of the Bush presidency, only 20 judges have been confirmed by the Republican Senate this Congress. Furthermore, judicial nominees have faced particularly long waits on the Senate floor, with the longest, Jeanne E. Davidson (U.S. Court of International Trade), having waited since February 2015 for a Senate vote. With Senator Grassley’s looming threat to implement the Thurmond Rule, the wait for confirmation votes will likely get worse, not better.     

    Looking at the actual practice of the Thurmond Rule, there is no precedent supporting a shutdown of judicial confirmations after the summer recess. Rather, if one looks at the historical information, the Senate maintains a responsibility to continue processing judicial nominations into late September and October. If the Senate fails to meet that goal, it cannot rely on the Thurmond Rule as a defense.