Samantha Shalowitz, CLS’18

US District Judge Daniel Jordan III ruled in favor of Planned Parenthood and blocked a Mississippi law that barred medical providers that perform abortions from receiving state Medicaid funds.  In his ruling, Judge Jordan cited a similar ruling by the Fifth Circuit holding that such laws violate federal law.  In its complaint, Planned Parenthood argued that the law unconstitutionally limited patients’ rights to choose their healthcare providers and prevented low-income patients from receiving care.  The governor of Mississippi, Phil Bryant, issued a statement voicing his support for the law and disagreement with the court’s decision.  (Source: Huffington Post)

A federal appeals court in Washington ruled that the president has the power to fire the head of the Consumer Financial Protection Bureau.  Though it did not dismantle the agency, the court ruled that the appointment process was unconstitutional, and made the director’s job subject to supervision, direction, and change by the president.  The ruling weakens the CFPB, considered one of President Obama’s signature accomplishments.  The CFPB was established in 2011 as part of the Dodd-Frank Act in response to the financial crisis.  Republicans have repeatedly tried to weaken the agency, and the court appeared to agree with some of their criticism, holding that the practice of having a single “unaccountable, unchecked director” is atypical and “poses a far greater risk of arbitrary decision-making and abuse of power” than does multi-member leadership.  The CFPB is exploring how it may challenge the decision.  (Source: CNN)

US District Judge Sharion Aycock ruled that a Mississippi woman cannot sue the government after being jailed for 96 days after indictment without an arraignment or seeing a lawyer.  The plaintiff, Jessica Lauch, asserted her innocence in jail and asked for an arraignment, but did not request to see a lawyer.  The court held that her right to counsel was not violated, and that she had no right to an initial appearance because she was indicted.  Jauch was arrested after police pulled her over for traffic violations and noticed she had an outstanding arrest warrant.  However, evidence did not support the charges, and, after Jauch’s lawyer contacted the prosecutor, the charges were dropped.  Jauch has filed notice of appeal.  The case is part of a larger effort by civil liberties advocates to reform Mississippi’s criminal justice system, which they say “provides almost no state funding for public defenders.”  (Source: ABA Journal)


Gahee Lee, CLS’18

The Massachusetts Superior Court dismissed a motion arguing that charter school attendance was a civil right. In response to plaintiffs’ complaints that they were being deprived of their constitutional rights to “adequate” education when denied admission to charter schools, the court held that even if the plaintiffs were currently attending schools that rated lowly on the state rating system for public schools and were denied admission to charter schools solely because the applications outnumbered the available seats, there existed no constitutional violation. Contrary to the plaintiff’s perspective that a subpar rating could be interpreted as the state’s negligence of some of the schools, the court stated that the grading system was established to “identify the schools most in need… and then provide such schools with the ways and means to improve.” The court also cited judicial deference to the legislature as yet another reason to defer judgment regarding school choices. [Source: Huffington Post]

The Oklahoma Supreme Court unanimously struck down a law imposing restrictions on abortion providers, holding that the requirement that providers take samples of fetal tissue from patients younger than 14 and preserve them for state investigators violated the state constitution’s requirement that each legislative bill only address “one subject.” Designated to “thwart legislators from including provisions that would not normally pass in otherwise popular bills,” the “one subject” rule seeks essentially to prevent a situation where legislators must decide between either wholly passing, or rejecting, a bill. The court rejected the legislators’ explanation that the bill sought to both capture child rapists (by use of the fetal tissue) and protect women’s health. Four of the concurring judges noted that they would have rejected the law as an unconstitutional burden on a woman’ right to have an abortion. [Source: Reuters]

The United States District Court for the Northern District of Florida extended Florida’s voter registration deadline by at least 24 hours in light of Hurricane Matthew. The Florida Democratic Party has requested a longer extension given the “strong likelihood” that many of the state’s voters have evacuated to seek refuge from the storm. Governor Rick Scott, on the other hand, has refused to allow more time. The District Court’s judge is to determine on Tuesday, October 11th whether to further extend the deadline. [Source: CNN]


Chad Klitzman, CLS’18

The Supreme Court has refused the Obama administration’s request for a rehearing of United States v. Texas. A 4-4 decision last term resulted in the upholding of a Texas court’s decision to blockade the implementation of President Obama’s executive actions for undocumented immigrants. In the event of a tie on the Supreme Court, the lower court’s decision is affirmed. The controversial program at issue, Deferred Action for Parents of Americans (DAPA), could assist more than four million undocumented immigrants who have lived in the United States since 2010 and who have children who are either American citizens or permanent residents. [Source: CNN / CBS News]

The Pennsylvania Supreme Court has ruled that indigent criminal defendants may sue for alleged inadequate funding in a Pennsylvania public defender’s office. The criminal indigents maintained that their inadequate representation resulted in impairments to their 6th and 14th Amendment rights to counsel. According to Mary Catherine Roper of the ACLU, this decision will give criminal defendants the requisite standing to sue on the basis of inadequate public defender funding. [Source: ABA Journal]

President Obama commuted 102 sentences this week and has set a record for the greatest number of commutations in one year (590). In total, the President has commuted more than 774 sentences – more than the previous 11 presidents combined. The vast majority of the commutations are for drug crimes. White House Counsel Neil Eggleston explained that “The vast majority of [the grants] were for individuals serving unduly harsh sentences for drug-related crimes under outdated sentencing laws.” [Source: ABA Journal / USA Today]

Summer and Rusty Page are fighting to regain custody of their foster child in the face of the Indian Child Welfare Act, which was crafted in order to protect Native American children from large exercises of power by child welfare agencies. The legislation aimed to curtail the high percentage of Indian families broken up by the removal of their children, often without just cause, but the Pages contend that the law actually results in Indian children receiving disparate treatment – often resulting in placement against their own interests. [Source: ABA Journal]

Much Ado About Nothing: Attorney General Eric Schneiderman’s “Groundbreaking” Reforms

Isaac Lara, CLS ’17

The recent decision by Cook County State’s Attorney Anita Alvarez to return charges in the police shooting of Laquan MacDonald more than a year after his murder have raised questions again over whether local prosecutors are capable of impartially investigating police shootings. After all, many local prosecutors depend on law enforcement agencies in collecting evidence, producing testimony for criminal trials, and supporting them during their political campaigns. Such relationships can create conflicts of interest that undermine the public’s confidence in the judicial system to secure justice for victims of police homicides.

To address this problem, some state elected officials have advocated transferring authority for the investigation and prosecution of police-caused civilian deaths to state attorneys general. New York Attorney General Eric Schneiderman is one of the nation’s leading proponents for such a move. At Schneiderman’s behest, in 2015, Governor Andrew Cuomo issued Executive Order 147, which removed authority from local district attorneys over certain types of police-caused civilian deaths and transferred special powers to investigate police shootings to the Attorney General’s Office. Schneiderman himself touted the novelty of the action, suggesting that New York’s approach would eliminate the conflict of interest that may exist when district attorneys investigate law enforcement. He even went so far as describing it as a huge step towards stopping mass arrest and mass incarceration.

However, Schneiderman may have overestimated how effective his new powers really are. While these new prosecutorial powers may draw national headlines, models like Schneiderman’s are unlikely to have a strong impact on removing the conflict of interest that exists between district attorneys and law enforcement.

1. The Attorney General’s Office Already Has the Power to Intervene in Police Shooting Cases

First, Schneiderman’s new prosecutorial powers are not nearly as new or groundbreaking as he has described. The common law in New York already confers upon the Attorney General the authority to bring charges against defendants or intervene in criminal proceedings.[1] For example, in People v. Miner, the New York Supreme Court delineated the power to conduct and intervene in prosecutions of “certain classes” of criminal cases.[2] While this case alone may not justify the inference of power to intervene in any criminal proceeding—such as a police-caused civilian death—it, combined with later opinions, can generally be interpreted to apply to all types of state crimes.[3]

Subsequent case law also demonstrates the broad powers that the New York Attorney General has in prosecuting defendants relative to other law enforcement agencies. For example, in Johnson v. Pataki, the Court ruled that district attorneys do not operate in a “zone of independence” that shielded them from intervention from the Attorney General because the state constitution had not designated a specific—let alone exclusive—prosecutorial duty upon them.[4]

2. The New York Attorney General Lacks the Requisite Expertise and Resources

Second, the New York Attorney General’s office generally lacks the expertise and resources that district attorneys typically have in criminal prosecutions. After all, before Schneiderman’s transfer of power, the vast majority of the Attorney General’s criminal prosecutorial powers were statutorily limited to financial schemes such as securities fraud, money laundering, consumer fraud conspiracies, and occasionally organized crime.[5] Some of the notable homicides they have independently prosecuted without the assistance of outside agencies were based off referrals from local prosecutors involving either cold cases or elder abuse. On the other hand, district attorney offices like Robert Johnson’s in the Bronx have handled nine cases of fatalities involving the NYPD, as well as two nonfatal cases in the past year alone.

Given the office’s limitations, it is hard to believe that the Attorney General would be capable of adequately investigating a homicide case involving police officers, which is an extremely complex matter warranting extensive investigative resources, especially in the first few hours after an incident. Schneiderman, for his part, has argued that he is willing to dispense an unlimited amount of money from his office to support his new prosecutorial duties. However, little effort has been spent in showing how his office would ensure taxpayer funds are spent efficiently.

3. District Attorneys Still Remain Involved in the Investigation

Third, Schneiderman’s new prosecutorial powers are superfluous given the continuing involvement of district attorneys in police shooting cases. For example, after Governor Cuomo issued Executive Order 147, Schneiderman directed all of the state’s 62 district attorneys to conduct a preliminary investigation into any police shooting case before it is transferred to his office. This preliminary investigation includes interviewing witnesses, drafting search warrants, and collecting evidence, among other responsibilities.[6] Such an instruction therefore undermines the purpose of the Governor’s executive order, which was to strip district attorneys of their jurisdiction over police shootings.[7] Thus, Schneiderman has permitted New York’s district attorneys to remain part of the investigative process despite his purported lack of confidence in them to conduct impartial investigations in police shooting cases.

More importantly, though, since both the Attorney General and district attorneys are obligated to follow the Governor’s executive order as issued, any attempt by Schneiderman to amend that order by delegating a portion of an investigation to district attorneys may be unlawful. After all, only the Governor may amend a legal executive order.[8] This makes it likely that the evidence collected by district attorneys during the preliminary stages of an investigation will be challenged by opposing counsel as inappropriately obtained.

4. Conclusion

Although New York Attorney General Eric Schneiderman praised Governor Andrew Cuomo’s executive order to transfer cases involving police-caused civilian deaths from local prosecutors to his office, he may have overstated its efficacy. First, his office already possesses the power to intervene in police shooting cases without the executive order. Second, even if Schneiderman chooses to manage these cases, his office still lacks the requisite experience and resources to manage the increasingly complex investigations to which district attorneys are already accustomed. Third, the executive order itself is redundant in that it strips district attorneys of their jurisdiction over police shooting cases because of presumed bias, while still requiring them to be part of the preliminary investigation.

Therefore, Schneiderman—who has never prosecuted a crime, let alone a homicide—faces difficulty in explaining what impact his “new” powers will ultimately have on police-involved shootings. Perhaps a more effective response than Executive Order 147 would have been to lobby the state legislature to reduce the broad legal latitude that officers currently have in determining what constitutes a reasonable risk to his or her own safety. That would help alleviate the perception of a conflict of interest by reducing the high barriers that district attorneys face in convicting police officers for shooting unarmed civilians. It would also ensure that the families of those who lost their lives during encounters with the police have a fair opportunity to obtain justice.

[1] Earl H. De Long, Powers and Duties of the State Attorney-General in Criminal Prosecution, 25 J. Crim. L. & Criminology 358, 362 (1934).

[2] People v. Miner, 2 Lans. 396 (N.Y. App. Div. 1868).

[3] Long, supra note 1, at 363.

[4] Johnson v. Pataki, 229 A.D.2d 242 (N.Y. App. Div. 1997).

[5] NY CLS Exec. § 63.

[6] E-mail from Eric Scheiderman, Att. Gen., State of New York, to District Attorneys of the State of New York (July 13, 2015) (on file with author).

[7] “Such appointment of a special prosecutor will supersede in all ways the authority and jurisdiction of a county district attorney to manage, interpret, prosecute or inquire about such incidents.” New York Exec. Order No. 147 (July 8, 2015) (emphasis added).

[8] NY CLS Const. Art. IV, § 1.

Climate Change Policy and the 2016 Presidential Election

Gregg Badichek, CLS ’16

The primary debates offer the false impression that climate change is a political issue, with consequences coming decades from now. Climate change is likely be the defining human crisis of the 21st century,[1] requiring a consistent, immediate array of responses. For this reason, voters should consider how candidates would treat President Obama’s considerable—and innovative—climate legacy.

President Obama’s Climate Action Plan

A focal point of the President’s climate legacy is his Climate Action Plan (“CAP”), outlined in June 2013. The plan is a broad aggregation of tactics united under three strategic pillars.[2] First, the plan aims to reduce America’s reliance on carbon fuels and instead promote clean energy sources. This pillar incorporates the contentious Clean Power Plan, which refers to the Environmental Protection Agency rule for regulating carbon output from existing power plants. Also involved is the EPA’s rule implementing final Carbon Pollution Standards for new, modified, and reconstructed power plants. Both finalized this year, the rules are promulgated pursuant to EPA’s authority under Clean Air Act sections 111(d) and 111(b), respectively.[3] The second pillar promotes climate change preparedness through a large mix of Executive tools, such as directives to administrative agencies, the creation of task forces to meet various infrastructural goals,[4] and Administration-led educational initiatives.[5] The third pillar involves Executive efforts to spur global climate communication, the building of dedicated coalitions and forums, and the development of multi-national public-private partnerships pursuing specific climate-related missions. This would include US efforts to seek a robust framework for global emission reduction at the November 2015 UNFCCC conference Paris, France

The Plan’s nuances are many, and far beyond the scope of this article. The takeaway is that the plan—for its reliance on administrative agencies, central coordination, and international partnering—is intrinsically Executive in nature. Thus far, the involvement of the other two co-equal Federal branches has largely taken the form of mitigations of the Plan or outright assaults on its integrity. Unlike environmental legislation or court rulings, the Plan’s Executive characterization binds its survival to the election. The President has vast authority over administrative agencies and their regulations, including the appointment of agency leadership and the setting of their agendas. Just as the President’s Executive authority upholds the Plan, so too will a subsequent President’s agenda result in either the Plan’s continuance or death.

In light of the fact that this plan is uniquely tied to the executive branch, how would the likeliest Presidential candidates of each party wield the broad Executive discretion that underlies much of the CAP’s substance? Will they honor these Executive maneuvers as prudent, and continue them? Or will they denounce the plan as Executive overreach, scaling it back with their own authority?

Democratic Candidates

Leading Democratic candidates Hillary Clinton and Senator Bernie Sanders have both supported climate change action and endorsed the supporting scientific consensus. While Senator Sanders’ environmental record is the stronger of the two, both have time and again reaffirmed their commitment to addressing the issue. During the October 2015 Democratic Debate, Sanders highlighted his efforts to pass legislation that would put a price on carbon. Sanders has called climate change the greatest threat to national security, and opposed the politically charged Keystone XL Pipeline for far longer than Secretary Clinton, who only recently denounced the project. Clinton, for her part, supported President Obama’s efforts at establishing a climate change legacy during her time at the State Department. Clinton fully endorses the President’s Plan, and because of her experience in the Obama Administration, she appears well positioned to continue implementing it should she take office. Were either leading Democratic candidate to take office, the contours of President Obama’s climate legacy would persist—if not expand.

The Republicans

The Republican positions on climate change stand in stark contrast to those of the Democratic frontrunners. While a considerable number of the Republican presidential candidates do not, in fact, deny the existence of climate change, the group’s current leaders—Senator Ted Cruz and Donald Trump—embrace ideas that stand contrary to scientific evidence. Cruz has referred to mainstream climate science as “partisan dogma and ideology.” Trump has haphazardly presented his views in occasional interview exchanges and Tweets, claiming not to believe in anthropogenic global warming and often conflating climate and weather. Trump frequently describes global warming and climate change as schemes laid bare when he experiences cold weather.

Senator Marco Rubio and Dr. Ben Carson—who trail Trump and Cruz at time of writing—likewise refuse to acknowledge the pressing risks of anthropogenic climate change. Carson has referred to climate and weather variations as natural phenomena, over which humans have no control and on which society should not focus. He has also discounted the idea that there is scientific consensus on anthropogenic climate change. Rubio, perhaps struggling to stake out a more moderate position on the subject, has recently argued that America’s economy cannot sustain governmental climate regulation.


For the President’s climate change legacy to endure, a Democratic candidate must win the 2016 election. However, the results of one presidential elections will not ensure climate progress. All presidential candidates should be rigorously challenged—by each other, the media, and, most importantly, the voters—on their climate change positions, and asked to describe with specificity what their administration would do with its inherited CAP: use the executive authority to roll it back, or turn it into the foundation for a sustainable climate change infrastructure? Without the answers to these questions, voters will not be able to make an informed decision on the most important issue facing humanity.

[1] The various risks of climate change were discussed with unprecedented force in the Intergovernmental Panel on Climate Change’s 5th Assessment Report, which can be found here:

[2] President’s Climate Action Plan Tracker, Sabin Center for Climate Change,

[3] 42 U.S.C. § 7411 (1963). The EPA maintains an overview of the differences here: What EPA is doing, Environmental Protection Agency, (last accessed December 5, 2015).

[4] President Obama established the Task Force on Climate Preparedness and Resilience on November 1, 2013 to “advise the Administration on how the Federal Government can respond to the needs of communities nationwide that are dealing with the impacts of climate change.” State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience, TheWhiteHouse.Gov,

[5] The U.S. Climate Resilience Toolkit, (last visited Dec. 1, 2015).

Trial by Most of a Jury: The Court’s Failure to Fully Incorporate the Sixth Amendment

Ethan Thomas, CLS ’17

Though the right to a criminal trial by jury seems to be a quintessential element of due process, it remains one of the few provisions of the Bill of Rights still not fully incorporated into the Fourteenth Amendment’s Due Process Clause. This allows for juries in state courts to return a guilty verdict without unanimous consensus, presenting serious concerns for the rights of criminal defendants, especially as issues of jury composition persist.

It may seem intuitive today that states do not have carte blanche to restrict free speech or perform unreasonable searches and seizures, as the Bill of Rights enumerates these protections. The Bill of Rights’ restrictions on government, however, were not constitutionally mandated at the state level until fairly recently: only in the twentieth century did the Supreme Court find most of the first eight Amendments to be “incorporated” into the Fourteenth Amendment’s guarantee of due process.

Though the Supreme Court rejected Justice Black’s view that the Due Process Clause necessarily incorporated the entire Bill of Rights against the states,[1] the Court has ultimately found, piecewise, that most of the provisions of the Bill of Rights apply. The Court explicitly recognized incorporation of the Bill of Rights’ provisions beginning in Gitlow v. New York[2] in 1925 (freedom of speech and freedom of the press) and most recently in McDonald v. Chicago[3] in 2010 (individual right to bear arms).

Unincorporated Rights and the Sixth Amendment

The only provisions that have not been incorporated are the Sixth Amendment’s right to a unanimous verdict,[4] the Fifth Amendment’s requirement of a grand jury, the Seventh Amendment’s right to a jury trial in civil cases, and the Eighth Amendment’s prohibition of excessive fines.[5] Also, while the Supreme Court has not itself incorporated the Third Amendment, the Second Circuit found that it was incorporated against the states, noting that the absence of precedent on this issue was likely due to its extremely rare invocation.[6]

Curiously, although due process refers on its face to procedure, these few exceptions to incorporation consist mostly of the Bill of Rights’ actual procedural guarantees.

Absent authoritative case law fully incorporating the Sixth Amendment right to a trial by jury, the states are free to determine whether jury verdicts must be unanimous. In practice, this has permitted Louisiana and Oregon to allow ten out of twelve jurors to convict a criminal defendant[7]—a practice upheld by the Supreme Court in 1972 in Apodaca v. Oregon.[8] In the 4–1–4 Apodaca decision, with Justice Powell concurring in the judgment, the Court declined to incorporate the unanimous jury requirement against the states, allowing Louisiana and Oregon to continue allowing criminal convictions by only ten of twelve jurors.[9] Last year, again on appeal from a criminal conviction by a non-unanimous jury in Louisiana, the Court denied a petition for certiorari to reconsider its decision in Apodaca.[10]

The Court’s decision not to hear this issue is confusing not only because of its importance, but also because overturning Apodaca should be an easy decision.

The Case for Incorporation

In McDonald, the most recent Supreme Court incorporation case, the Court discussed what it meant for a right to be “of such a nature” as to be “included in the conception of due process of law.”[11] The Court noted that different formulations include “immutable principles of justice which inhere in the very idea of free government…”[12] rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental;”[13] and principles “essential to a fair and enlightened system of justice.”[14]

Excluding the requirement of a unanimous verdict in a criminal jury trial from the notion of due process is textually perplexing as well as substantively disturbing. Unlike most of the rights that have been incorporated, this is an actual component of procedure. It is rooted solidly in common law, and has been thought to apply to the federal government since the Constitution’s ratification.[15] Justice Powell even recognized this historical support in Apodaca, but he did not find that the practice was authoritative with respect to the states.[16] It is difficult to find a right more entrenched in history and tradition than the right to jury unanimity, and because the jury is the cornerstone of a “fair and enlightened system of justice,” traditional rules regarding the threshold for a jury conviction should not be subject to loosening by the states in criminal trials, where the stakes are particularly high.

Further, the notions discussed in McDonald are incompatible with partial incorporation, i.e., recognizing that the states are bound only to a weaker form of a constitutional guarantee.[17] If a right is “fundamental” and inherent “in the very idea of free government,” it makes little sense to guarantee only part of that right when a state court happens to be exercising jurisdiction. Holding to the notion that a trial by jury is fundamental but not as necessary in state courts is at odds with the principles of incorporation. Interestingly, Justice Powell was the lone justice in Apodaca who advocated this split approach: the four-justice plurality and the four dissenting justices all advocated uniform application of their respective interpretations. Though eight Justices agreed that partial incorporation was not the solution, the rule stands today.[18]

Non-Unanimous Jury Convictions Raise Serious Concerns About the Rights of Criminal Defendants

Aside from the problems inherent in lowering the threshold for conviction, allowing a conviction over the dissent of two jurors—as Louisiana and Oregon do—presents concerns about jury composition as well. It is well-settled that procedures preventing diversity on a jury can pose constitutional problems, and this issue persists today.[19] However, the principle that a jury should represent multiple perspectives from the community is substantially watered down if one or two minority jurors can be essentially vetoed. Further, this substantially hampers the power of jury nullification[20] or jury review[21] —which can be especially important in the context of prosecutions motivated by a discriminatory purpose—by eliminating the ability of one or two jurors to block a conviction when they perceive a fundamental defect in the law.

By denying certiorari on this issue, the Court allowed the Apodaca decision to stand and permitted two states to continue convicting criminal defendants without unanimous verdicts. The incorporation doctrine as articulated by substantial precedent culminating with McDonald nonetheless demonstrates that the Fourteenth Amendment should require unanimous jury verdicts in criminal trials.

[1] “The due process clause of the Fourteenth Amendment… does not draw all the rights of the federal Bill of Rights under its protection.” Adamson v. California, 332 U.S. 46, 53 (1947); see also Id. (Black, J., dissenting) at 71–72 (“My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored,… persuades me that one of the chief objects that the provisions of the Amendment’s first section… were intended to accomplish was to make the Bill of Rights, applicable to the states.”) (citations omitted).

[2] Gitlow v. New York, 268 U.S. 652, 664 (“the ‘liberty’ protected by the Fourteenth Amendment includes the liberty of speech and of the press”).

[3] McDonald v. Chicago, 561 U.S. 742, 791 (“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right [as applied to individuals in recent case law].”).

[4] The Sixth Amendment’s guarantee of a trial by an impartial jury implies, at least with respect to the federal government, additional requirements such as unanimity. See Andres v. Unites States, 333 U.S. 740, 748 (1948) (“Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply.”); see also Kate Riordan, Ten Angry Men: Unanimous Jury Verdicts in Criminal Trials and Incorporation After McDonald, 101 J. Crim. L. & Criminology 1403, 1408 (2011).

[5] See McDonald, 561 U.S. at 765 n.13 (enumerating the unincorporated constitutional rights).

[6] Engblom v. Carey, 677 F.2d. 957, 961 (2d Cir. 1982).

[7] LA Const. art. I, §17 (requiring concurrence of ten jurors to render a verdict in a criminal case, unless the punishment is capital); OR Const. art. I, §11 (requiring concurrence of ten jurors to render a verdict in a criminal case, except for first degree murder).

[8] Apodaca v. Oregon, 406 U.S. 404 (1972).

[9] Id.

[10] Jackson v. Louisiana, 134 S.Ct. 1950 (Mem.) (2014) (denying certiorari).

[11] McDonald, 561 U.S. at 743 (quoting Twining v. New Jersey, 211 U.S. 78, 99 (1908)).

[12] Id. at 760 (quoting Twining, supra n.11, at 102).

[13] Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

[14] Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)) (internal quotation marks omitted).

[15] “[T]he requirement of unanimity arose during the Middle Ages and had become an accepted feature of the common-law jury by the 18th century.” Apodaca, 406 U.S. 404 at 407–08; See also 1 John Adams, A Defence of the Constitutions of Government of the United States, 376 (1797) (“it is the unanimity of the jury that preserves the rights of mankind…”).

[16] Apodaca, 406 U.S. 369 (Powell, J., concurring in the judgment) (“In an unbroken line of cases reaching back into the late 1800’s, the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial.”); see also Riordan at 1414 (citing same).

[17] In fact, the court there says that “incorporated Bill of Rights protections are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” McDonald, 561 U.S. at 765 (citations and internal quotation marks omitted).

[18] The Court in McDonald explicitly recognized Apodaca as an “exception” to the rule against partial incorporation, noting this oddity in how the votes split, and said that Apodaca “does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” Id. at 766 n.14.

[19] See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986) (holding that use of peremptory strikes to purposefully exclude black jurors warrants reversal). This term, the Supreme Court heard arguments in Foster v. Chatman, a case alleging that Georgia discriminatorily struck black jurors on the basis of race. Supreme Court Docket 14-8349; Petition for Writ of Certiorari, 2015 WL 2457657.

[20] See James Kachmar, Silencing the Majority: Permitting Nonunanimous Jury Verdicts in Criminal Trials, 28 Pac. L. J. 273, 307–308 (1996).

[21] Akhil Amar discusses the theory of the role of the jury in “refus[ing]” to follow a law it deems unconstitutional.” Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction, 98–104 (1998). This narrower theory may provide a more legitimate basis for seeking to preserve the power of the jury not to apply a law.

From Scalia and a White Supremacist, a Victory for Prisoners’ Rights

Tochi Onyebuchi

The American democratic experience is an exercise in contradiction.

Moments after the Supreme Court legalized same-sex marriage nationwide, Justice Scalia, whose loquacious and vituperative dissent in Obergefell v. Hodges has since been widely quoted, analyzed, praised, and mocked, handed prisoners’ rights activists a decisive victory. And he used a white supremacist to do it.

As of Friday, June 26, 2015, thousands of people in federal prisons could face re-sentencing procedures, some of which might result in early release, the result of a blow the Supreme Court just struck against mandatory minimum sentencing laws.

The case of Johnson v. United States addressed the constitutionality of a provision in the Armed Career Criminal Act, a 1984 law that mandated a minimum of 15 years imprisonment (and a maximum of life) for possession of a firearm, if that person bears three or more prior convictions of a “serious drug offense” or a “violent felony.” During petitioner Johnson’s conviction for possession of a firearm as a felon, the federal prosecutor, for the purposes of sentencing, classified a prior conviction for possession of a sawed-off shotgun as a “violent felony” under the statute’s residual clause. Consequently, Johnson was sentenced to 15 years in federal prison.

The problem here is that possession of a firearm is not a violent felony under the statute. Or, at least, the Court realized it wasn’t. Indeed, the clause at question had this to say regarding the definition of a violent felony: “any crime punishable by imprisonment for a term ex¬ceeding one year […] that presents a serious potential risk of physical injury to another.” §924(e)(2)(B) (emphasis added).

Under that law, prosecutors have in the past used drunk driving and failing to report to a parole officer as “violent” offenses, as well as many others that could, in no way, be categorized as violent. As a consequence, defendants were often bullied into plea deals on the basis of a law that, according to Scalia, “proved to be anything but evenhanded, predictable, or consistent.”

Johnson’s claim was that the clause that the prosecution had used to levy a harsher sentence was unconstitutionally vague. After nine years of trying to figure out what exactly that clause meant, the Supreme Court agreed.

The ACCA shares DNA with New York’s “Rockefeller Laws” enacted in 1973, which dictated mandatory minimum sentences of fifteen years’ imprisonment for selling two ounces or possessing four ounces of heroin, cocaine, or marijuana. On the federal level, Congress blanketed the statutory landscape with mandatory minimum sentence restrictions for narcotics offenses, firearm offenses, and other offenses.

Judge Rakoff, District Judge for the Southern District of New York, provides an example of the ensuing judicial insanity that came with stripping judges of their powers of discretion:

“[F]ederal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them.”

The practice of augmenting sentences bears strong implications with regards to for-profit prisons: Private prison corporations, such as the Corrections Corporation of America—which in 2012 generated more than $1.7 billion (USD) in revenue—regularly contract with the federal, state, and local governments to fill prison beds and are the prime beneficiaries of sentence-enhancing legislation, such as the ACCA. And, the racial ramifications are undeniable: In fiscal year 2014, 5,498 offenders were convicted of violating the ACCA. 98% were male. 52.4% of those were black.

While the inequities of mandatory minimum sentencing are most often invoked in the context of drug offenses, they wreak similar havoc when tracking weapons offenses.

Friday’s ruling won’t open every cell in Attica, but for the approximately 900 or so prisoners whose convictions have not yet become final (i.e. when a prisoner has exhausted his direct appeal in the federal court of appeals and the Supreme Court has denied a petition for certiorari or the time to file a petition for certiorari has expired), the argument may now be made that they were sentenced under plain error that affected substantial rights and that, as in the case of Samuel Johnson, violated Due Process.

For prisoners whose convictions are final, relief may also be available. Retroactively applying the Johnson decision to defendants already convicted under the ACCA would trigger collateral review. And for those prisoners who were subject to the sentencing enhancement, they may now be able to raise the claim that they were punished with a sentence the statutory law could not impose on them, a sentence that exceeded the statutory maximum for the offense of which they were convicted.

Samuel Johnson was an avowed white supremacist who was under investigation by the FBI since 2010 and was suspected of preparing to commit acts of terrorism. He revealed to undercover agents his cache of AK-47s, semi-automatic rifles, and ammunition. He told them he had manufactured an explosive device meant for specific “progressive” targets.

And he may have provided a new avenue of relief for thousands of inmates of color nationwide.

It is up to Congress now to draft more specific language or simply to operate under the limited statute. But, in the meantime, federal prosecutors may have their hands full in determining who may be eligible now for early release.

Over and Out: The Conclusion of Radio Martí After a Long History of Controversy Under Contradictory Legal Standards [Part II]

Taylor Hartstein

This post is the second in a two-part series on the legal debate over Radio and TV Martí, the U.S. broadcasting programs aimed at Cuba. Part I explores the history of the Martís in the context of U.S.-Cuba relations and the Castro regime’s arguments against the Martís under domestic and international law. Part II discusses the possibility of dispute resolution under the International Telecommunications Union as well as a First Amendment-based defense of the Martís.

The International Telecommunications Union

The International Telecommunications Union (“ITU”) is a specialized agency of the United Nations that regulates international telecommunications. The organization seeks, among other things, “to maintain international cooperation and national use of telecommunications,” “to harmonize actions of all countries planning to use D[irect] B[roadcasting ] S[ystems],” and “to allocate and improve the use of the radio frequency spectrum.”[1] The main institutional mechanism for addressing specific problems is the ITU’s World Administrative Radio Conferences (“WARCs”).[2] The 1971 WARC adopted a specific Radio Regulation 428A, which requires states to reduce “spillover broadcasts” into other countries “to the maximum extent practicable” unless a previous agreement is established between the countries.[3] While this regulation could arguably require the United States to take steps to minimize the effects of its domestic radio on Cuba, the U.S. has construed the regulation merely as a technical guideline, arguing that any broader construction would violate the “free flow” principle of Article 19 of the UDHR.[4] Continue reading Over and Out: The Conclusion of Radio Martí After a Long History of Controversy Under Contradictory Legal Standards [Part II]

Legal News Roundup

Sandra Bland's sister, Sharon Cooper, arrives at her funeral on July 25. Image via NY Times.
Sandra Bland’s sister, Sharon Cooper, arrives at her funeral on July 25. Image via NY Times.

Media outlets continue to raise questions about the death of Sandra Bland, addressing the legality of her arrest and concerns that the dash cam video released by Texas officials was edited. The funeral for Ms. Bland takes place today. [ABC News, CNN, NY Times, ABA Journal]

Ted Olson and David Boies have voiced their support for the Equality Act, which seeks to amend the 1964 Civil Rights Act to comprehensively protect LGBT people from discrimination. Deputy Legal Director of the ACLU Louise Melling describes the added protections that the historic bill would provide as expanding the CRA to include a “more robust vision of equality.” [Politico, HuffPost]

The Eighth Circuit struck down a North Dakota law that banned abortions once a fetal heartbeat was detected, but urged the Supreme Court to reassess the viability standard. The Center for Reproductive Rights has called the law “the most extreme abortion ban in the U.S.” [ABA Journal, SCOTUS Blog, Center for Reproductive Rights]

The Texas Third Court of Appeals threw out one of the two felony counts against former Governor Rick Perry, finding that the applicable “coercion of a public servant” statute violated the First Amendment. Perry’s abuse of official capacity charge still stands. [Reuters]

Over and Out: The Conclusion of Radio Martí After a Long History of Controversy Under Contradictory Legal Standards [Part I]

Taylor Hartstein

In January 2015, Raúl Castro called for the end of the “anti-Castro” broadcasting services known as Radio and TV Martí (“the Martís”) as a precondition to normalizing relations between the United States and Cuba.[1] Finding their genesis in the U.S. “Voice of America” program during the Cold War, these broadcasting programs have continued to cause tension both between the U.S. and Cuba and in the domestic U.S. political sphere throughout their existence.[2] According to their Congressional purview, the objective of the Martís is to “provide news, commentary, and other information about events in Cuba and elsewhere to promote the cause of freedom in Cuba.”[3] However, some argue that the Martís’ efforts contribute to “the perception, pervasive in Cuba, that the United States and the Cuban diaspora are plotting regime change,” which “further strengthens the hard-liners who argue that only a closed political model with minimal market openings can insulate the island from domination by a foreign power allied with old-money elites.”[4]

Image courtesy of the author.

Continue reading Over and Out: The Conclusion of Radio Martí After a Long History of Controversy Under Contradictory Legal Standards [Part I]