Who Killed Habeas Corpus?

*This piece was originally published in the Winter 2018 issue of Dissent Magazine. 

On November 4, 1995, Leandro Andrade walked into a K-Mart in Ontario, California, and attempted to shoplift five children’s videotapes. He was caught by a security guard and promptly arrested. Two weeks later, he walked into another K-Mart in nearby Montclair and tried to steal four more videotapes. Again, he was caught and arrested on the spot. This time, he was tried and convicted in a California state court of two counts of petty theft with a prior conviction. His sentence for stealing $153 worth of VHS tapes? Fifty years in prison.

The staggering sentence was largely a result of California’s three-strikes law: Andrade had been in and out of prison since the early 1980s, including on charges of (nonviolent) burglary, and the shoplifting incidents were the final straw. Prosecuted as felonies, each demanded a minimum sentence of twenty-five years under the California law, adopted just the year before.

Andrade’s appeals in the California courts were unsuccessful, so he filed a petition for a writ of habeas corpus in federal court challenging the constitutionality of his sentence. Ultimately, the case went to the Supreme Court, and on March 5, 2003, the Court ruled against him. Andrade remains in prison today, with no possibility of parole until he’s eighty-seven years old.

Andrade’s case offers a window onto what may well be the most tragic development of the modern legal era: the destruction of habeas corpus as an effective remedy for individuals who are imprisoned as a result of a violation of their constitutional rights by a state court. Once known as the Great Writ of Liberty, habeas corpus has been so extensively diminished that it is no longer a protection against unlawful imprisonment but rather an empty procedure that enables and may actually encourage state courts to disregard constitutional rights.

The writ of habeas corpus came to the United States by way of English common law and is explicitly recognized in the Constitution. In the Judiciary Act of 1789, Congress conferred habeas jurisdiction on the newly created federal courts, thereby enabling prisoners to challenge the legality of their custody in such courts. Two great events in American history established the reach and power of the writ. The first was Reconstruction. Among the important constitutional amendments and statutes passed by the Reconstruction Congress was the Habeas Corpus Act of 1867 in which the benefit of the writ was extended to formerly enslaved people and others convicted in state courts. Thus, for the first time, federal courts were authorized to monitor state criminal proceedings to ensure that defendants’ constitutional rights were respected. The second was a series of decisions by the Warren Court in the 1960s extending the procedural protections in the Bill of Rights to criminal defendants in state courts. Many law-enforcement officials resisted these decisions—including, for example, the rulings requiring the exclusion of evidence resulting from unlawful searches or from interrogations unaccompanied by Miranda warnings—and many state court judges did not enforce them. Through habeas corpus, state prisoners could go to federal court to vindicate their rights.

As the Warren Court era came to an end, however, an increasingly conservative Supreme Court, led by Warren Burger (1969–1986) and then by William Rehnquist (1986–2005), came up with a variety of ways to limit federal habeas review of state prisoners’ constitutional claims. The Court prohibited federal courts from reviewing claims of unlawful search and seizure, barred consideration of claims not properly raised in state court, required federal courts to presume that state courts had found facts correctly, and ruled that federal courts could not consider habeas petitions if they contained even a single claim that had not been exhausted in state court. The Court also prohibited federal courts from granting habeas relief based on a new rule and broadly defined when a rule was new. It barred consideration of second petitions, made it more difficult for federal courts to conduct evidentiary hearings, and required federal courts to find that certain state court errors were harmless. In sum, the Court created numerous new obstacles for habeas petitioners.

Nevertheless, even with the impediments the Court created, a state prisoner generally had the right to have a federal court independently review the merits of her or his constitutional claim. And a federal court had the authority and, in fact, the duty, to grant a writ of habeas corpus if a prisoner was in custody as a result of a constitutional violation. In the mid-1990s, however, things took another bad turn. Congressional Republicans led by Newt Gingrich made habeas corpus “reform” part of their “Contract with America” and drafted a bill containing a hodgepodge of restrictions. They declined to discuss the bill with habeas experts, refused to hold hearings, and fast-tracked the legislation onto the floors of both houses. And although the bill had little to do with terrorism and affected all state prisoners, not just those subject to the death penalty, they named it the Antiterrorism and Effective Death Penalty Act (AEDPA) and, in the wake of the bombing of the federal building in Oklahoma City, passed it with an overwhelming majority.

Sadly, over the objections of habeas scholars, civil libertarians, and his own counsel, Abner Mikva, President Clinton signed the bill in April 1996. One would have hoped that Clinton, who had taught constitutional law, would not have signed a bill weakening the Great Writ. Clinton was well aware of the harm that AEDPA would cause to people whose state court convictions resulted from the deprivation of constitutional rights, but he was willing to sacrifice them for his own political gain. He wanted to be perceived as being “tough on crime,” and habeas corpus had no politically significant constituency. A terrible bill thus became the law of the land.

Two provisions of AEDPA are particularly objectionable. The first, as interpreted by the Supreme Court, requires federal courts to defer to state court rulings that are based on incorrect interpretations of federal constitutional law as long as such interpretations, however wrong, can be regarded as “reasonable.” The second bars federal courts from granting relief based on any authority other than clearly established Supreme Court precedent. This provision bars lower federal courts analyzing constitutional claims from relying on the case law in their circuit. Thus, even if circuit precedent clearly supports relief, if the Supreme Court has not spoken, the writ must be denied. The effect of these provisions is to prevent federal courts from granting relief to many prisoners whose convictions are obtained unconstitutionally.

Although AEDPA was misguided from its inception because it elevates flawed state court adjudications of guilt over individuals’ constitutional rights, the Supreme Court has made it much worse. Interpreting the language of the statute in an astonishingly one-sided and restrictive way, the Court has exacerbated the worst aspects of AEDPA and essentially barred independent federal court review of state prisoners’ constitutional claims. The Supreme Court’s disturbing interpretations of AEDPA began in 2000 in Williams v. Taylor, a decision written by Justice Sandra Day O’Connor, an avid states’ rights enthusiast. In Williams, the Court held that even if a state court misinterprets Supreme Court precedent and thus reaches an incorrect legal conclusion, that error does not require the state court’s decision to be overturned. Then, in Leandro Andrade’s 2003 case involving the stolen videotapes, Lockyer v. Andrade, the Court went further, holding that even if a state court’s resolution of an issue governed by Supreme Court precedent is clearly erroneous, that is not enough to warrant habeas relief.

Since then, the Court has become even more extreme. In 2011, in Harrington v. Richter, it said that habeas corpus was appropriate only for addressing “extreme malfunctions” in state criminal justice systems, namely “where there is no possibility that fair-minded jurists could disagree.” This interpretation is not supported even by the language of AEDPA and, taken literally, would mean that a federal court could never grant relief because to do so it would have to find that none of the state court judges who denied the claim was a “fair-minded jurist.” In Richter, the Court also determined how the statute applied to a state court decision denying relief without giving any reason for its decision. The deference to state courts required by AEDPA applies only to claims “adjudicated on the merits.” Because the state court’s decision in Richter was totally devoid of any explanation, it was unclear that the court had even considered the claim’s merits. Nevertheless, the Supreme Court created a presumption that unexplained decisions were decisions on the merits entitled to AEDPA deference.

As I mentioned earlier, under AEDPA, a federal court can grant habeas relief only if the state court decision unreasonably applies or is contrary to “clearly established federal law, as determined by the Supreme Court.” The Supreme Court’s interpretation of this phrase has also been horribly one-sided. In Andrade, the California courts rejected the defendant’s argument that a fifty-year sentence over $150 worth of videotapes violated the Eighth Amendment’s prohibition of cruel and unusual punishment. A federal habeas court disagreed, ruling that the punishment was “grossly disproportionate”—a principle created by the Supreme Court to determine when punishment is excessive. The Supreme Court reversed, holding that its own decisions regarding gross disproportionality were not clear enough to constitute clearly established federal law.

Then in 2006, in Carey v. Musladin, the Court made things even worse. Mathew Musladin was tried for murder in California, and the family of the deceased, Tom Studer, sat in the front row behind the prosecutor, in view of the jury, wearing large buttons with Studer’s photograph on them. Musladin claimed self-defense, and argued that by allowing Studer’s family to portray the deceased so sympathetically, the court violated his right to be tried by an unbiased jury. Musladin was convicted, and the question on habeas review was whether his due-process right to a fair trial was violated. Supreme Court precedent established that a defendant was entitled to a trial free from impermissible influences on the jury such as being required to appear in prison clothing. The lower federal court granted habeas relief, but the Supreme Court reversed, holding that the state court did not violate clearly established federal law. This was so, the Court said, because the prison-apparel case involved a government-sponsored influence, unlike the “private communications” from Studer’s family. Thus, almost any factual distinction between a prior Supreme Court case and a new habeas case now justifies denying relief.

Finally, there was the Court’s 2011 decision in Cullen v. Pinholster, in which Scott Lynn Pinholster was sentenced to death in state court and sought federal habeas relief based on ineffective assistance of counsel at the penalty phase of his trial. The federal court held an evidentiary hearing at which Pinholster offered powerful mitigating evidence not presented to the jury that tended to explain his aggressive behavior and organic personality disorder. The federal court overturned the death sentence, but the Supreme Court reversed, construing AEDPA to say that a federal habeas court can look only at the record that was before the state courts. Pinholster is a catastrophe for death penalty defendants, whose best claim often is that their lawyer failed to present mitigating evidence that might have caused the jury to impose a less harsh sentence. Evidence supporting such claims is almost never available in the state court record.

Through this series of rulings, the Supreme Court turned a terrible statute, AEDPA, into an utter and unmitigated disaster. The problem arises from the Court’s obvious antipathy to federal court review of state court convictions and its resulting tendency to read every provision in the statute as altering habeas law to the disadvantage of petitioners. The Court often expresses its antipathy in terms of federalism and clearly regards having a federal court overturn a flawed state court conviction as more harmful than imprisoning someone who has been unlawfully convicted. What the Supreme Court refuses to recognize, however, is that state courts, as presently constituted, are institutionally incapable of providing adequate review of their own criminal convictions.

In many states, post-conviction review is very hard for prisoners to come by. Even where such review is accessible, however, state courts are not well positioned to enforce the constitutional rights of criminal defendants. Whereas federal judges have life tenure, judges in most states are elected or subject to appointment or reappointment by officials who are themselves subject to election. For a prisoner claiming she or he has been deprived of a constitutional right, there is a substantial difference between having the claim heard by a judge or judges with life tenure and a judge or judges who must be reelected or reappointed. This problem has gotten worse as judicial elections have become increasingly contested, increasingly involve substantial spending by special-interest groups, and increasingly result in the defeat of incumbents.

Conservative organizations now spend millions of dollars on judicial elections. Although many such organizations are primarily interested in economic-oriented issues such as tort law, their TV ads typically focus on criminal law issues, which have higher salience with voters. My home state of Wisconsin provides an example. In 2008, with nearly $3 million worth of help from the state’s major business lobby, Wisconsin Manufacturers and Commerce, and a similarly oriented right-wing group, Wisconsin Club for Growth, a little-known trial court judge, Michael Gableman, ousted a respected state supreme court justice, Louis Butler, by contrasting his own law-and-order philosophy with the incumbent’s supposedly soft-on-crime stance. Almost all of the corporate money behind Gableman was spent on sham issue ads—attack ads that do not use the words “vote for” or “vote against” and that, therefore, are not considered political under the Supreme Court’s campaign finance jurisprudence and do not trigger disclosure requirements. The ads called Justice Butler “Loophole Louie,” highlighted his dissent in a highly publicized murder case and urged voters to tell him “to stand up for victims—not technicalities.” They resulted in the first defeat of an incumbent Wisconsin supreme court justice in almost half a century.

No matter how impartial and well-intentioned its members, a court made up of elected judges can struggle to maintain balance in a high-profile criminal case. Consider, for example, the case of Ted Oswald, who was convicted of the murder of a police officer in a conservative, suburban Wisconsin county in 1995. Because of the publicity, the state trial judge sequestered the jury pool while he and the lawyers questioned jurors individually in the courtroom. On the fourth day of questioning, a juror testified that several others had repeatedly told the jury pool that Oswald was guilty and that a trial would be a waste of time and money. Naturally, Oswald’s lawyer asked the judge to permit further questioning of the jurors to determine if they had been prejudiced. In an unusual and arbitrary decision, the judge denied the request, clearly fearing that more questioning would result in his having to dismiss the entire jury pool and that county taxpayers would not look favorably on the expense involved in empaneling another pool.

The decisions of the appellate courts in the Oswald case were also affected by concern about public opinion. Both the state court of appeals and the state supreme court attempted to avoid deciding the case, the former by certifying the case directly to the state supreme court, and the state supreme court by declining to accept the certification. Ultimately, after a long delay, the court of appeals affirmed Oswald’s conviction, conveniently overlooking the trial court’s errors in jury selection. (Full disclosure: even under AEDPA, as a federal judge in the Eastern District of Wisconsin, I was able to grant a writ of habeas corpus in this case.)

The threat of being defeated at the polls is real, and it affects judicial behavior. Many other cases and a substantial body of research make this clear. In the years following the 1986 recall of Chief Justice Rose Bird and two colleagues for overturning numerous death sentences, the California Supreme Court upheld death sentences at one of the highest rates in the country. And a 2004 study showed that Pennsylvania sentencing judges became “significantly more punitive the closer they [were] to standing for reelection.” This was so, the authors concluded, even though judges in Pennsylvania serve ten-year terms and face nonpartisan retention rather than contested elections. Another study discovered that elected state supreme courts affirmed 62 percent of death penalty sentences, while supreme courts comprised of judges appointed for life affirmed just 26 percent of such sentences. Further, elected supreme court justices, including justices generally supportive of defendant’s rights, were more likely to affirm death sentences as they approached the end of their terms.

Nor is there anything new about this. In the Federalist No. 78, Alexander Hamilton wrote, “adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.” In the civil-rights era, elected state court judges often proved unable or unwilling to protect the rights of racial minorities, mirroring the inability of elected state judges to protect the constitutional rights of criminal defendants today. And in 1977, in an influential article, civil-liberties lawyer and scholar Burt Neuborne refuted the notion that state courts provided an adequate forum for the adjudication of Fourth Amendment claims, which was the basis for the Burger Court’s troubling decision that federal habeas review of unlawful search and seizure claims was unnecessary.

An elected judiciary is not the only factor that puts state courts in a poor position to decide difficult issues of constitutional criminal procedure. Many state courts have heavy caseloads, limited staff, little experience in addressing such issues, and extremely conservative legal cultures. As a federal judge, I have observed a considerable number of cases where state courts overlooked clear constitutional violations, including cases where lawyers were grossly ineffective—failing, for example, to contact exculpatory witnesses, obtain a copy of the defendant’s file from prior counsel, or read police reports because the officer’s handwriting was hard to read. On another occasion, Wisconsin trial and appellate courts considered a case six times without noticing that police officers had obtained admissions from a defendant in a homicide case without providing him with Miranda warnings.

For all of these reasons, federal judges are far better positioned than state court judges to protect the constitutional rights of criminal defendants. And protecting such rights, often in cases involving minority defendants, is of course one of the paramount functions of courts. Unfortunately, the destruction of federal habeas corpus by AEDPA and the Supreme Court has made this function virtually impossible for federal courts to perform. Along the way, the Supreme Court’s habeas jurisprudence has not only undermined the constitutional rights of individuals but also the authority of federal courts to decide cases as provided in Article III of the Constitution. The Supreme Court has done this by forcing federal courts to defer to interpretations of federal law by state courts that are incorrect. Federal courts are now compelled to place their stamp of approval on constitutional error.

Two additional points require mention. The first is that the Supreme Court has been extraordinarily relentless in dismantling the writ. As Judge Stephen Reinhardt explains, contrary to its usual practice and to its statements that it should not accept a case for review for the mere purpose of correcting an error, the Court has increasingly granted review in habeas cases solely to reverse a circuit-court decision that the Court considered insufficiently deferential to a state court judgment, even though, as discussed, that judgment may have been wrong. Between 2007 and 2015, the Court summarily reversed some fifteen cases in which circuit courts had granted writs on the ground that the state court’s adjudication, whether or not mistaken, was not unreasonable. In short, procedurally as well as substantively, the Court takes every opportunity it can to eliminate meaningful federal review.

Second, the Clinton and Obama appointees to the Court seem to have lost whatever appetite they once had for contesting the conservative majority on this issue. They appear to have given up and accepted the right-wing justices’ destruction of habeas corpus as a settled matter not to be further disputed. The statistics bear this out. In 2006, as Judge Reinhardt notes, the Court issued five 5-4 decisions regarding whether a state court decision on the merits was contrary to or an unreasonable application of clearly established federal law and in three found that AEDPA did not bar relief. From 2007 to 2013, however, the Court decided twenty-eight such cases and denied relief in twenty-six. And of the twenty-six denials, only six engendered a dissent and only one dissent received four votes.

Inasmuch as deference to state court decisions has emerged as a suffocating force in most habeas cases, a number of scholars have attempted to determine what the appropriate next step might be. Two have suggested substantially abandoning federal oversight of state convictions. Others have proposed different forms of review than federal courts have traditionally performed. The fact is that, short of repealing AEDPA and the Supreme Court’s decisions interpreting it, there is no satisfactory response to what the Court has done and no way to escape its tragic consequences. Except when a state has done something truly shocking in the course of convicting someone (and even then, only sometimes), habeas corpus no longer provides a meaningful avenue for protecting the constitutional rights of criminal defendants.

Your Challenge: Address to the National Student Leaders of the American Constitution Society

The American Constitution Society was founded in 2001 to “promote the vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, equality, access to justice, democracy, and the rule of law.” ACS is committed to the proposition that law should be a force to improve the lives of all people.

ACS seeks to bring about change by shaping the debate on important legal and constitutional issues by developing and promoting high-impact ideas; by building networks of lawyers, law students, judges, and policymakers dedicated to those ideas; and by countering the conservative legal movement that for the past half-century has aggressively sought to erode our nation’s enduring constitutional values.

To achieve these goals, ACS has established lawyer chapters in more than forty cities across the nation and student chapters in two hundred law schools. It has created on-going programs to address such issues as access to justice, democracy and voting, constitutional interpretation, judicial nominations, and equality and personal liberty, to name just a few.

Our nation’s need for the American Constitution Society is more compelling today than at any time since its founding. Our democracy today is in serious peril. The threats are everywhere, they are evident, and they are dire. They are evident in the corrupting and distorting role of money in our political process, in the Republicans’ unprecedented use of political gerrymandering to distort our representative democracy, in the Supreme Court’s evisceration of the Voting Rights Act, in the Court’s perverse understanding of the Second Amendment, in the impact of social media and the polarization of American democracy, in the mass incarceration of African-Americans, in the persistent attacks on the rights of women, immigrants, gays, lesbians, and transgender persons, in the corruption of congressional norms with the Republicans’ unprecedented abuse of the filibuster and unconscionable refusal to confirm Merrick Garland to the Supreme Court, and on and on and on. In this world of Donald Trump, Jeff Sessions, Neil Gorsuch, and Mitch McConnell, our nation needs the American Constitution Society today more than ever. ACS stands on the right side of history, and it deserves and needs your support.

By saying all this, I do not mean to create despair, but determination. Our nation has been through challenging periods in the past. During World War I, for example, the government imprisoned more than two thousand people for their criticism of the war and the draft, during World War II we interned more than 120,000 individuals of Japanese descent – more than two-thirds of whom were American citizens, and during the Age of McCarthy our nation at the state, local, and federal levels persecuted and prosecuted thousands of individuals during a vitriolic anti-Communist campaign that challenged the very premises of our democracy. In short, we have been here before, and although each time is different, with courage, determination, and conviction, we can – once again -- win back our democracy.

I arrived in law school as a student in September of 1968. This was the heyday of the Warren Court. In the prior fourteen years, the Supreme Court had declared racial segregation unconstitutional, held for the first time that wiretapping is a “search” within the meaning of the Fourth Amendment, revolutionized American democracy by recognizing the principle of “one person/one vote” and holding that the right to vote is a fundamental constitutional freedom, overruled prior decisions holding that individuals could be criminally prosecuted for criticizing the government, held unconstitutional laws that required prayer in public schools and that forbade blacks and whites from marrying, adopted the exclusionary rule for violations of the Fourth Amendment, guaranteed criminal defendants a right to counsel, required Miranda warnings to ensure that confessions were not coerced, and on and on and on.

It was a heady and exciting time. It was a time when the Supreme Court was a vital force in our nation for justice, for equality, and for democracy. It was a time when the Supreme Court deeply understood and reflected the most fundamental responsibility of the judiciary in our constitutional system – to protect the rights of the oppressed and the disadvantaged against majoritarian hostility and indifference, and to protect our democracy against majoritarian manipulation, abuse, and distortion. Moreover, in that same spirit, Congress had recently enacted the Civil Rights Act, which forbade discrimination even by private entities, and the Voting Rights Act, which was designed effectively to forbid discrimination in elections. When I entered law school half-a-century ago, it was in the heyday of the Warren Court, the sexual revolution, and civil rights movement, and the beginning of the women’s rights movement. It was a heady time, indeed.

Even then, though, the bitter conflicts over the Vietnam War divided the nation as tens of thousands of Americans died each year in a conflict that most people entering law school thought to be perverse, illegitimate, and immoral, the 1968 Democratic Convention in Chicago revealed just how ugly the nation’s divisions had become, and the brutal assassinations of Martin Luther King, Jr. and Robert F. Kennedy tore the very soul out of many hopeful Americans. It was a moment of both extraordinary progress and profound frustration, a moment of bitter division throughout our society, and a time of anger, sorrow, and dismay.

And then Richard Nixon was elected president. Within two years, he had totally transformed the Supreme Court. The Warren Court – that bastion of justice, equality, and liberty – was no more. It was now replaced by the Burger Court, with four conservative justices newly appointed by Richard Nixon. For those of us in law school at the time, it was, truly, a moment of despair.

And then it got worse, for in the half-century since 1968, Republican presidents have appointed twelve of the sixteen justices to the Supreme Court, and for fifty years now there has never been a majority of justices appointed by Democratic presidents. The consequences of this transformation have been dramatic for the nation. On issues like campaign finance, gerrymandering, voting rights, gun control, the rights of labor unions, and a host of other issues, the ever-more conservative justices of the Supreme Court – shifting from justices like Blackmun, Powell, Stevens, O’Connor and Souter to justices like Scalia, Thomas, Roberts, Alito, and Gorsuch – have moved the Court in an ever-more aggressively conservative direction. Instead of pursing the fundamental constitutional values of equality, justice, and electoral integrity, these ever-more extreme justices have embraced a form of unprincipled conservative judicial activism that finds support neither in precedent, nor in the traditional conservative call for judicial restraint, nor in so-called “originalism,” nor in any principled justification for judicial review.

My point in all of this should be obvious: You face a challenge. But it is not a challenge you can’t handle. Just like those who won back our First Amendment rights after World War I and after the Red Scare, just like those who won back the rights of Japanese-Americans after World War II, just like those who have fought the battles for civil rights, women’s rights, and gay rights, you must use your legal skills, your personal conviction, your sense of justice, and your commitment to individual liberty, dignity, and equality, to win the day.

And this, you will do. It was will take time, it will take courage, it will take determination, but I am confident that when you look back at this moment fifty years from now, you will say – “I helped get us here.” “Here” will not be perfection, but it will be progress. And as you work for that goal, ACS will be there to support, encourage, and guide you. As former judge and founding member of ACS Abner J. Mikva once observed, “ACS’s goals are ambitious, but they are attainable. . . . Our work is just beginning. Don’t just stand there – join us.”

Thank you.

Reining in RFRA (EEOC v. R.G. & G.R. Harris Funeral Homes, Part 2)

* A separate blog post by Professor Eyer on this case addresses the Sixth Circuit’s analysis of the sex discrimination claims raised by the Plaintiff, and is available here.

Since the Supreme Court’s decision in Hobby Lobby—extending the protections of the Religious Freedom Restoration Act (RFRA) to for-profit entities—the specter of possible RFRA defenses to federal anti-discrimination claims has loomed large. In the recently decided EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit takes the Supreme Court at its word in Hobby Lobby that such defenses will not succeed—that the government has compelling and narrowly tailored interests in eradicating employment discrimination. As importantly, it reins in several broader trends towards expanding RFRA far beyond the bounds of pre-Smith free exercise law—trends that might otherwise threaten to turn RFRA into an essentially automatic exemption from generally applicable federal laws.

The District Court opinion in EEOC v. R. G. & G.R. Harris Funeral Homes exemplified recent trends towards converting RFRA into a largely assured exemption from federal law for those claiming religious scruples. Taking the Defendant, a for-profit funeral home owner, at his word that he would be “substantially burdened” by having to comply with gender stereotyping case law (and employ a transgender funeral director), the Court made essentially no independent inquiry into whether the threshold requirement for triggering a RFRA defense was met. The Court then proceeded to conclude that the government must, to prevail, show that it had a compelling interest in addressing this specific instance of discrimination—and could not simply rely on its general compelling interest in eradicating sex discrimination. Finally, the District Court reasoned because the EEOC could have offered the Funeral Home some other compromise as part of the conciliation process—albeit certainly not one that would have erased the Funeral Home’s prior discriminatory termination of the plaintiff —its actions were not narrowly tailored.

The Sixth Circuit’s opinion in Funeral Homes—reversing the District Court, and rejecting the Funeral Home’s RFRA defense—properly reverses course from this expansive reasoning, and seeks to restore some sensible limitations to the scope of available RFRA defenses. As an initial matter, as the Court notes, the conclusion that some courts have drawn from Hobby Lobby—that essentially no judicial inquiry is appropriate into a exemption-seeker’s articulated belief that their religious practice is “substantially burdened” by the application federal law—would effectively “substitute religious belief for legal analysis regarding the operation of federal law.” Under such a regime, an individual need only claim a substantial burden—which cannot be second guessed by the courts—after which the claimant is assured an exemption from the law, absent the government’s satisfaction of the most demanding and rigid standard of scrutiny. No other constitutional (or quasi-constitutional) right is triggered by such a subjective and unreviewable personal claim of entitlement.

The Sixth Circuit in Funeral Homes rejects this regime, concluding that claims that one has satisfied the “substantial burden” requirement of RFRA are indeed questions regarding the proper interpretation of the statute, and thus are reviewable by the courts.  Finding that neither feared customer disapproval, nor mere toleration of an employee’s own understanding of her sex and gender identity, are—as a matter of law—a cognizable “substantial burden,” the Court thus rejected the Funeral Home’s claims.

As importantly, the Sixth Circuit also recognized that language in prior Supreme Court case law requiring a “to the person” analysis of the satisfaction of strict scrutiny (where a substantial burden is imposed on religion under RFRA) did not mean that the government must articulate some independent compelling interest specifically as applied to the case at hand. Rather, properly framed, the question is whether the government’s generally compelling interest (here, eliminating the harms of sex discrimination) was implicated in the particular claim for exemption. As the Sixth Circuit properly concluded, such was no doubt the case in the Funeral Homes case, where the EEOC’s grant of an exemption would mean that “the EEOC would be allowing a particular person—Stephens—to suffer discrimination…”

Funeral Homes illustrates the critical nature of correcting this misunderstanding of what the “to the person” analysis entails under RFRA—especially in the context of religious defenses to anti-discrimination law claims. Prior cases in which the Supreme Court has found an exemption warranted based on “to the person” analysis have involved circumstances where the government’s generally compelling interest was not meaningfully implicated in the context of the particular religious adherent.  The point that the Court was making through its “to the person” admonition was thus only that the government must show its generally compelling interest to be implicated in some significant way by the case at hand. But in anti-discrimination cases, the very harm the government is trying to prevent—its compelling interest in protecting individuals against discrimination—is directly implicated in each and every individual case. Because the government’s interest is in preventing harm to third parties—an exemption allowing such harm would inevitably significantly implicate that interest.

The more expansive (and, in the view of the Funeral Homes court, erroneous) understanding of this “to the person” language would, in contrast, require the government to prove that not only that its generally compelling interest was implicated—but rather that each individual instance of applying its law was, standing alone, furthering a compelling government goal—a very different, and much more difficult task.  The government’s interests necessarily will seem less compelling when disaggregated to the granular level.  Thus, flipping the question—from whether the reasons behind a generally compelling statutory regime are meaningfully implicated in an individual request for exemption—to whether the government prove in the first instance a compelling interest in each itemized application of the law—subtly but critically changes the nature of the question, in ways that will make it difficult for the government to ever justify its application of the law.

As in the case of arguments for absolute deference to religious claimants views of “substantial burden,” such an approach would be far more generous to RFRA rights claimants than accepted standards of protections for other constitutional (or quasi-constitutional) rights. RFRA already affords special protections to those claiming religious rights of exemption from otherwise applicable law. As the Sixth Circuit properly recognized, we should not expand those special protections into an effectively automatic exemption from the operation of federal law.

Insecurity: How lax security procedures could hurt our national security

Each day, it seems, another personnel-related headline emerges from the West Wing of the White House. As a result, the events of just a few days past often feel like ancient history. But rather than succumb to the 24-hour news cycle, it behooves us to pause and consider more closely White House Chief of Staff General John Kelly’s recent intervention regarding security clearances for White House staff and the circumstances that precipitated it.

In addition to making reforms to the clearance process, the memo terminated interim high-level clearances for anyone whose application had been pending since June 2017. While it is not unusual for senior White House staff to have interim clearance at the outset of an administration, hundreds of staffers in November and dozens as late as February still were cleared only on an interim basis. This list included the President’s Senior Advisor and son-in-law, Jared Kushner—despite which fact he enjoyed regular access to America’s most sensitive secrets, including the President’s daily intelligence briefing.  (Recognizing that Kushner is likely ineligible for a permanent clearance—Kelly ultimately downgraded his interim clearance level.) Given that the clearance process usually takes about 8-10 weeks, providing access to the PDB to staff whose clearance applications are pending after 13 months in office is both unusual and alarming.

As it turns out, Kushner actually provides a textbook example of the risks that the security-clearance system is designed to guard against and the danger to the United States’ interests posed when that system is not enforced effectively.

To understand the importance of security clearances, consider the nature of the information they are designed to safeguard. Clearances are governed by Executive Order 13526, which establishes three levels of classified information, for which there are three corresponding levels of clearance—Confidential, Secret, and Top Secret.  Information is designated “Confidential” if its unauthorized disclosure “reasonably could be expected to cause damage to the national security”; “Secret” if the disclosure could “cause serious damage to the national security”; and “Top Secret” if that damage could be “exceptionally grave.” Certain agencies also use additional access controls to further limit the distribution of classified information that is extraordinarily sensitive, such as information about sources and methods of intelligence collection—known as “Sensitive Compartmented Information”—and certain military operations—known as “Special Access Programs.”

Foreign governments and individuals around the world are constantly on the lookout for opportunities to access these secrets. To ensure that they do not succeed, access is limited to individuals who can be relied upon for loyalty and discretion. To smoke out applicants who do not qualify, executive-branch investigators seek to discover whether the individual’s history or character raises one or more of several different red flags. These warning signs generally fall into one of two categories:  first, circumstances that might make an applicant susceptible to outside influence (particularly foreign influence); and second, behavior that calls into question an applicant’s allegiance to the United States, judgment, reliability, or general trustworthiness. The investigation into Kushner’s background raised red flags in both of these categories.

Consider the ways in which Kushner opened himself up to pressure or coercion from those who may not have the best interests of the U.S. at heart. Unlike most officials who pursue high-level government jobs, Kushner retained hundreds of millions of dollars in assets as well as substantial interest in his family’s real estate firm, Kushner Companies.  And now we know that Kushner Companies received hundreds of millions of dollars in loans from two companies after Kushner met with their executives in the White House.  What, if anything, did they ask Kushner for in return? The family company is also currently struggling under a $1.2 billion dollar debt on a single building in Manhattan—a debt for which Kushner has been in contact with investors in multiple countries, including allies of the U.S. as well as rivals, such as China. Might officials from one of these countries be willing to bankroll Kushner Companies in return for access to Kushner himself, and perhaps to the information entrusted to him?  Moreover, that Kushner repeatedly failed to report both millions of dollars in assets and hundreds of foreign contacts on his security questionnaire surely did not inspire investigators’ confidence in Kushner’s trustworthiness and willingness to prioritize the good of the United States over his own personal interests.

One need not accuse Kushner of intentionally conveying dangerous classified information to foreigners to see that he has placed himself in a situation that others might exploit. Indeed we already know that government officials from four different countries—United Arab Emirates, Israel, China, and Mexico—view Kushner as a “soft target” due to (among other things) his “complex business arrangements and financial difficulties.” Yet disclosure of Top Secret information conveyed with even the best of intentions is just as dangerous as any calculated act of espionage.

To be sure, the classification and security-clearance system is imperfect. There is broad agreement across the political spectrum that far more material is stamped “classified” than is necessary. And while it might seem appealing at first glance to err on the side of caution, as Supreme Court Justice Potter Steward said in the Pentagon Papers, “when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless.” Another threat to the integrity of the system often discussed in the wake of the Edward Snowden disclosures is the sheer number of individuals who possess security clearances—as the Washington Post has pointed out, the number of people with a security clearance is larger than the entire population of Norway.  Indeed, there are well over a million with top secret clearance alone. The laws of probability say that the more people who have access to information, the more likely it is to leak out.

Despite its flaws, the process serves an important purpose. And while Gen. Kelly’s belated efforts to address information-security concerns are laudable, the White House Staff’s seemingly casual approach to the issue during their first year in office is yet another example of the Trump presidency’s disregard for longstanding norms, the erosion of which could be devastating for America.

A Human Rights Lens on the Detention and Forced Medical Treatment of Pregnant Women

How far can a state go in restricting a woman’s constitutional rights under the guise of protecting a fetus? The Seventh Circuit will soon have the opportunity to answer this question when it issues its much-anticipated decision in Loertscher v. Anderson. The case challenges a Wisconsin law that allows child protective services to take a pregnant woman into custody to protect her “unborn child,” from “the time of fertilization to the time of birth,” based on concern that the woman’s purported use of alcohol or controlled substances poses a “substantial risk” to the physical health of her “unborn child.”

Wisconsin’s law is unique in that it places a woman in the custody of child protective services. However, several other states allow or promote use of civil commitment laws to detain pregnant women. Civil statutes that detain pregnant women to prevent future substance use and force them to undergo drug treatment raise serious constitutional issues related to a woman’s right to liberty, privacy, personal autonomy, and non-discrimination.

As we argue in a new ACS Issue Brief, they also violate core human rights principles.

Universal human rights standards recognize that every person has the right to be free from arbitrary detention and forced medical treatment. Women do not lose these rights when they become pregnant. Indeed, human rights bodies emphasize the importance of incorporating a gender perspective to ensure that physical differences between women and men -- such as the capacity to be pregnant -- as well as stereotypical attitudes about women’s ability and right to make their own health care decisions, are not used to undermine women’s equal enjoyment of their human rights. Human rights bodies have explicitly rejected the idea that fetal interests can be considered separately from, or promoted to the detriment of, pregnant women. And human rights standards emphasize that pregnant women must be treated with dignity and respect.

International human rights experts have raised concern about statutes like the one at issue in Loertscher. In October 2016, at the conclusion of an official fact-finding visit to the United States, in addition to raising due process concerns, the U.N. Working Group on Arbitrary Detention described such laws as a “form of deprivation of liberty [that] is gendered and discriminatory . . . , as pregnancy combined with the presumption of drug or other substance abuse, is the determining factor for involuntary treatment.” It recommended that laws like Wisconsin’s that purport to seek to promote maternal and fetal health “be replaced with alternative measures that protect women without jeopardizing their liberty.”

Ultimately, the Seventh Circuit may avoid addressing whether the Wisconsin law violates women’s liberty and privacy rights by holding the statute void on vagueness grounds (as the district court did). Nevertheless, international human rights law illuminates the fundamental rights violations resulting from Wisconsin Act 292 and state civil confinement laws targeting pregnant women suspected of substance use, and thus provides a useful perspective for courts and legislatures considering similar civil detention schemes.

It's Time To Take On Big Opioid Like We Did With Big Tobacco

*This piece was originally posted on Buzzfeed

The unchecked flood of opioids into our country has caused unspeakable damage, and the companies that manufacture them will inevitably be held accountable. When that moment comes, it is vital that we avoid the mistakes made in our attempts to hold Big Tobacco accountable.

I helped coordinate the tobacco lawsuits of the 1990s, which ended with a giant settlement deal that would cost cigarette makers more than $200 billion and require major changes to the industry. But much of that money was wasted, and countless people have died as a result.

We can’t let that happen again, and now is the time to start talking about what a Big Tobacco–style national settlement with Big Opioid should look like — and to demand nothing less from our state and federal leaders.

The courageous state attorneys general who sued Big Tobacco were not naive — they knew it would be a long, complex fight, and that changing corporate behavior and using settlement funds wisely would not be easy. They proposed sweeping tobacco marketing reforms, and fought to ensure that funds would be devoted to public health.

But in the scramble toward a final resolution of the cases, these wise goals were lost. No meaningful regulation of the tobacco industry emerged until 2009, when Congress finally passed legislation that subjects cigarettes to the regulation of the United States Food and Drug Administration.

Just as disastrous was the fate of those tobacco settlement dollars — historic sums of money extracted from corporations for historic misdeeds against society. Governors and state legislators used them to pay for roads, lower taxes, or to meet budget shortfalls. In many states future cash flows from tobacco settlements were sold to investors in return for a onetime cash payment that disappeared into one-off government spending. That kind of failed short-term thinking can’t be repeated.

Despite the shortcomings, historic progress was made in the wake of the tobacco cases. Smoking rates, especially among children, fell dramatically. When we started in 1994, fully 35% of teenagers smoked, and today that percentage is 15%.

But this success was a pale shadow of what might have been. Today 36 million Americans continue to smoke, and tobacco remains the number one cause of preventable deaths in our country. We can’t let that happen again in our response to the opioid crisis.

That response won’t match perfectly with the tobacco cases, even though the behavior of some in the pharmaceutical industry has been egregious and clearly warrants legal action. Unlike tobacco, opioids entered our communities via the gateway of prescriptions by physicians and was distributed by pharmacists, all of whom are regulated by state licenses.

There will also be a difference in the sums of money involved — the more than $200 billion paid out by cigarette makers reflects the vast scale of their industry and profits, and the correspondingly vast public health costs they created. Opioids have their own unique evils, but have fortunately not yet reached the scale of cigarettes — and unlike tobacco, they are not inherently bad for everyone: They relieve real pain for millions of Americans.

Regardless, as the vast scope of a national crisis becomes clearer and the death toll mounts, the pressure on litigation targets to settle will become insurmountable.

When that day comes, attorneys general must make sure that opioid marketing be reformed and permanently monitored, and that all funds from opioid settlements go into public health. Opioid settlement funds cannot be siphoned to pay for criminal law enforcement or useless “just say no” public relations campaigns. They must be used for the treatment of the millions of our neighbors who are suffering from addiction.

And just as in tobacco cases, settlements must reflect geography of the suffering caused by pharmaceutical company behavior. The opiate crisis is not decimating all regions equally.

To accomplish this, today’s attorneys general should task a team of independent experts to determine now the best ways to monitor the pharmaceutical industry and treat opioid abuse. This isn’t a knock on the abilities of state attorneys general and their counsel, but rather a simple recognition that the skills needed to pursue difficult litigation and negotiate a meaningful settlement are different to the ones needed to figure out how to reform complex pharmaceutical marketing and not waste settlement funds that come to the states.

We need to start discussing the contours of an opioid settlement today, and to demand that public health principles be front and center. Without that discussion, and the priorities that emerge from it, we are destined to repeat past mistakes that must not be repeated.

We still live with the terrible human toll of tobacco use decades after we pledged as a country to address the crisis. Living with the opioid epidemic for decades to come cannot be a choice that any of us should accept.

*James E. Tierney served as the attorney general of Maine for 10 years, and has since consulted with state attorneys general on a wide variety of issues including the tobacco cases of the 1990s. He currently teaches at Harvard Law School, where he is a lecturer on law and directs the State Attorney General Clinic. He is the director of StateAG.org.