Edward Garner made off with a purse and $10 in cash after burglarizing a home in Memphis, Tenn., late on the evening of Oct. 3, 1974. He paid for his crime with his life when a Memphis police officer, Elton Hymon, shot him in the head as Garner fled on foot and ignored the officer’s shouted instruction to halt.
A Shelby County grand jury declined to bring any charges against Hymon for the shooting, but Garner’s father later filed a federal civil rights suit against Hymon and the city of Memphis for his son’s death. And when the case reached the U.S. Supreme Court, the justices ruled that the Tennessee law authorizing the use of deadly force to apprehend any suspected felon fleeing from police was unconstitutional.
“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable,” Justice Byron R. White wrote for the 6-3 majority in Tennessee v. Garner (1985). White, a pro-law enforcement vote in most criminal procedure cases, concluded that the Fourth Amendment’s rule against “unreasonable” seizures allows the use of deadly force only if necessary to prevent the escape of a suspected felon who poses a physical threat to the officer or to others.
A decade after the Supreme Court ruling, a law professor who ran the numbers found a measurable decline in the number of police homicides over time. The drop was slightly greater in those states that formally found their deadly-force statutes unconstitutional than in those states that left laws inconsistent with the ruling on the books.
Missouri was among those states that never changed its unrestricted deadly-force law. So when the St. Louis County prosecutors assigned to the grand jury investigating the shooting death of Michael Brown went to the law books, they found a statute that had not been changed since 1979, six years before the Supreme Court’s ruling. And the prosecutors gave grand jurors that law on Sept. 16 as Ferguson, Mo., police officer Darren Wilson was about to testify before them and give his account of the fatal encounter with Brown.
It was more than three months later, on Nov. 21, when prosecutor Kathi Alizadeh confessed error to the grand jurors. Alizadeh told the grand jurors that she and colleague Shelia Whirley had found after additional “research” that the Missouri statute “does not comply with the case law.”
Back in September, the prosecutors had given the grand juror a printed copy of the Missouri deadly-force statute to have before them as Wilson testified. Now, Alizadeh told the grand jurors to “fold that in half so that you [ ] don’t necessarily rely on that. . . .” She proceeded to give the grand jurors a new sheet of paper — apparently not included in the materials released by the St. Louis County prosecutor’s office. The new handout “does correctly state” the law on use of deadly force, Alizadeh explained, but without specifying exactly what was wrong from the previous handout.
From the transcript, it does not appear that Alizadeh identified the Supreme Court’s decision by name or explained its holding or reasoning. She simply said that the previous explanation of the law had “something in it that’s not correct. Ignore it totally.”
Garner’s death 40 years earlier differed in significant respects from Brown’s fatal encounter on the afternoon of Aug. 9. Garner was slight of build: 5-foot-4 and 100 pounds, according to the evidence; Brown was bigger: 6-foot-2 and 280 pounds. Garner was suspected of nothing other than the alleged burglary; Brown had compounded his suspected offense — the theft of a package of cigarillos from a conveniences store — by a tussle of some sort with Wilson as the officer sat in his patrol car.
Most significantly, Hymon assumed Garner was unarmed and fired at Garner’s back. Wilson testified that he fired at Brown only after the teenager had reached inside his waistband, possibly for a gun, and had begun to charge at the officer. “At this point,” Wilson told the grand jurors, “I’m backpedaling pretty good because I know if he reaches me, he’ll kill me.”
Some witnesses disputed Wilson’s reconstruction of the events. According to those accounts, Brown had his hands up as though to surrender. In any event, Wilson never saw Brown with a weapon. And from his own words Wilson started out in pursuit of Brown not because he saw the teenager as a threat to himself or to others but only because he thought it his job to apprehend the fleeing suspect.
Three decades earlier, the Supreme Court had laid down a rule that catching a crook does not of itself justify a police officer in using deadly force. But grand jurors did not know of that rule when they initially listened to Wilson’s testimony. Instead, the grand jurors had in mind the prosecutors’ mistake of law that completely excused Wilson. Asking the grand jurors three months later to ignore the mistake was surely a fruitless attempt to unring the bell.
The grand jurors are barred by law from explaining their reasoning or even disclosing their vote. But even without the other mistakes by police and prosecutors in the case, the prosecutors’ ignorance of the current law on deadly force was enough to doom any chance for the grand jury to hold Wilson accountable at law for his actions.
Sunday, November 30, 2014
Wednesday, November 26, 2014
In Ferguson, Passive Prosecutors Let a Case Slip
When Detective Nick Amaro shot and seriously injured an unarmed black teenager on the TV program Law and Order: Special Victims Unit, the police brass and the district attorney’s office came down hard on him. Ignoring advice from his fellow officers, Amaro (played by actor Danny Pino) asked to go before the grand jury investigating the shooting to plead his case.
As seen in the Jan. 15, 2014, episode, Amaro faced hostile questions from grand jurors, but explained how he had mistaken a ricocheting bullet for the victim firing at one of his fellow officers. Amaro insisted he had followed police procedure in the shooting. His account, along with his distraught regret at the boy’s injuries, persuaded the grand jury not to indict him.
However fictitious the episode, it illustrates that it is not unheard of for the target of an investigation to appear before a grand jury. That is the route that Ferguson, Mo., police officer Darren Wilson took on Sept. 16 to tell his side of the Aug. 9 killing of the unarmed black teenager Michael Brown. Unlike the typical case, however, the two St. Louis County prosecutors in the grand jury room treated Wilson, the target of the investigation, with kid gloves, not as a potential defendant in a homicide case.
The 81-page transcript of Wilson’s testimony was released along with the rest of the testimony and evidence before the grand jury on Monday night [Nov. 24] as District Attorney Robert McCulloch announced the panel’s decision not to charge Wilson with any crime for the shooting. The transcript shows that prosecutors Sheila Whirley and Kathi Alizadeh allowed Wilson to tell his story with few interruptions and with nothing like the kind of challenging cross-examination one would expect.
The testimony makes clear there was ample probable cause to support an indictment, most likely for voluntary manslaughter, even if a conviction at trial was at best a long shot. Wilson’s testimony strains credulity at many points, but by his own account he chose to use deadly force instead of less lethal alternatives — mace or a baton — once the confrontation with Brown had begun. And Wilson’s claim that he feared for his life from a fist-swinging teenager simply mocks his supposed training as a police officer to deal with resisting suspects.
Wilson mishandled the confrontation from the moment he saw Brown and Brown’s friend Darien Johnson walking down the middle of the street on the afternoon in question. He never should have initiated the encounter from the vulnerable position inside his patrol car. Had Wilson followed proper police procedure and gotten out of the car, Brown would not have had him at a disadvantage in the fight that ensued.
As for the fight itself, Wilson’s description at the least exaggerates his physical injury. After taking two punches, Wilson said he felt that “a third one could be fatal.” But the hospital photograph taken afterward shows only minor swelling on the left side of his face. Even so, Wilson had quickly decided to use his weapon. “Once he was hitting me in the face,” he told the grand jury, “that enough was in my mind to authorize the use of force.”
The physical evidence does confirm Wilson’s testimony that Brown grabbed for the gun and that Wilson eventually fired at close range once he gained control of the weapon. An autopsy showed that Brown had gunpowder residue on his hand. When the shots caused Johnson and then Brown to flee, Wilson got out of the car and ordered them to halt and get on the ground. As Wilson told it, Brown instead turned, reached inside his waistband, and started to “charge.” Wilson fired 10 times, and Brown fell to the ground, fatally wounded.
A cross-examination could have probed Wilson’s account, but the prosecutors merely let it go. On the PBS NewsHour, two experts shook their heads in disbelief. Susan McGraugh, a law professor at St. Louis University, said the prosecutors were merely “pitching softballs” at Wilson. Christina Swarms, a one-time criminal defense lawyer and now director of litigation for the NAACP Legal Defense Fund, recalled that she often had her clients appear before grand juries. “I would love to have had my clients handled by prosecutors the way the prosecutors handled” Wilson, she said.
The prosecutors’ performance matched their boss’s passive attitude throughout the case. Throughout, McCulloch spoke only of presenting the evidence to the grand jury, not actually seeking an indictment. In his news conference, he described his office’s role not as prosecutors but as “legal advisers” to the grand jury.
Many in the Ferguson community and many others across the nation rightly feel that McCulloch simply punted the case to the grand jury. Prosecutors rely on cooperation with police, but McCulloch’s countywide office could have risked poisoning the well with the small Ferguson police department by taking a more assertive stance.
Now, Ferguson faces a challenging task of healing the breach between the predominantly white police department and the predominantly black citizenry. Wilson, who showed no remorse in his grand jury testimony, is reportedly resigning from the force. But more by way of reform will be needed in Ferguson and elsewhere to protect against the unnecessary deaths of civilians at the hands of those sworn to protect and serve, not to menace and kill.
As seen in the Jan. 15, 2014, episode, Amaro faced hostile questions from grand jurors, but explained how he had mistaken a ricocheting bullet for the victim firing at one of his fellow officers. Amaro insisted he had followed police procedure in the shooting. His account, along with his distraught regret at the boy’s injuries, persuaded the grand jury not to indict him.
However fictitious the episode, it illustrates that it is not unheard of for the target of an investigation to appear before a grand jury. That is the route that Ferguson, Mo., police officer Darren Wilson took on Sept. 16 to tell his side of the Aug. 9 killing of the unarmed black teenager Michael Brown. Unlike the typical case, however, the two St. Louis County prosecutors in the grand jury room treated Wilson, the target of the investigation, with kid gloves, not as a potential defendant in a homicide case.
The 81-page transcript of Wilson’s testimony was released along with the rest of the testimony and evidence before the grand jury on Monday night [Nov. 24] as District Attorney Robert McCulloch announced the panel’s decision not to charge Wilson with any crime for the shooting. The transcript shows that prosecutors Sheila Whirley and Kathi Alizadeh allowed Wilson to tell his story with few interruptions and with nothing like the kind of challenging cross-examination one would expect.
The testimony makes clear there was ample probable cause to support an indictment, most likely for voluntary manslaughter, even if a conviction at trial was at best a long shot. Wilson’s testimony strains credulity at many points, but by his own account he chose to use deadly force instead of less lethal alternatives — mace or a baton — once the confrontation with Brown had begun. And Wilson’s claim that he feared for his life from a fist-swinging teenager simply mocks his supposed training as a police officer to deal with resisting suspects.
Wilson mishandled the confrontation from the moment he saw Brown and Brown’s friend Darien Johnson walking down the middle of the street on the afternoon in question. He never should have initiated the encounter from the vulnerable position inside his patrol car. Had Wilson followed proper police procedure and gotten out of the car, Brown would not have had him at a disadvantage in the fight that ensued.
As for the fight itself, Wilson’s description at the least exaggerates his physical injury. After taking two punches, Wilson said he felt that “a third one could be fatal.” But the hospital photograph taken afterward shows only minor swelling on the left side of his face. Even so, Wilson had quickly decided to use his weapon. “Once he was hitting me in the face,” he told the grand jury, “that enough was in my mind to authorize the use of force.”
The physical evidence does confirm Wilson’s testimony that Brown grabbed for the gun and that Wilson eventually fired at close range once he gained control of the weapon. An autopsy showed that Brown had gunpowder residue on his hand. When the shots caused Johnson and then Brown to flee, Wilson got out of the car and ordered them to halt and get on the ground. As Wilson told it, Brown instead turned, reached inside his waistband, and started to “charge.” Wilson fired 10 times, and Brown fell to the ground, fatally wounded.
A cross-examination could have probed Wilson’s account, but the prosecutors merely let it go. On the PBS NewsHour, two experts shook their heads in disbelief. Susan McGraugh, a law professor at St. Louis University, said the prosecutors were merely “pitching softballs” at Wilson. Christina Swarms, a one-time criminal defense lawyer and now director of litigation for the NAACP Legal Defense Fund, recalled that she often had her clients appear before grand juries. “I would love to have had my clients handled by prosecutors the way the prosecutors handled” Wilson, she said.
The prosecutors’ performance matched their boss’s passive attitude throughout the case. Throughout, McCulloch spoke only of presenting the evidence to the grand jury, not actually seeking an indictment. In his news conference, he described his office’s role not as prosecutors but as “legal advisers” to the grand jury.
Many in the Ferguson community and many others across the nation rightly feel that McCulloch simply punted the case to the grand jury. Prosecutors rely on cooperation with police, but McCulloch’s countywide office could have risked poisoning the well with the small Ferguson police department by taking a more assertive stance.
Now, Ferguson faces a challenging task of healing the breach between the predominantly white police department and the predominantly black citizenry. Wilson, who showed no remorse in his grand jury testimony, is reportedly resigning from the force. But more by way of reform will be needed in Ferguson and elsewhere to protect against the unnecessary deaths of civilians at the hands of those sworn to protect and serve, not to menace and kill.
Sunday, November 23, 2014
On Immigration, Obama on Sound Legal Ground
President
Obama has powerful legal arguments on his side to defend his
decision to protect approximately 4 million undocumented aliens from the threat
of deportation. But Obama weakened his case in the court of public opinion by
the politically motivated decision to defer formalizing this policy until after
the midterm congressional elections.
The 33-page legal memorandum by the Justice Department’s Office of Legal Counsel (OLC) provides a well-reasoned and well-documented conclusion that the president’s policy is “a permissible exercise of [the Department of Homeland Security’s] discretion to enforce the immigration laws.” As the memorandum explains, the policy specifies somewhat restrictive criteria for eligibility for the time-limited protection from deportation and limits the legal rights or benefits for immigrants covered by the policy: work permits, yes; health benefits, no; and no legalization or path to citizenship.
The memorandum cites Supreme Court precedents, congressional enactments, and longstanding regulations as legal authority. The categorical protection for immigrants who have been in theUnited
States
The OLC memo gains credibility by its second conclusion that the same protection from deportation — in legal parlance, “deferred action” — cannot be extended to the parents of immigrants who have been previously been granted that status. The memo finds “no precedent for using deferred action to respond to humanitarian concerns arising from previous exercise of deferred action.”
The strong legal and policy arguments in support of the policy all but destroys the administration’s justification for delaying the move until after the midterm elections. All of the reasons for the policy were just as strong a year ago as they are now. Arguably, Obama needed to delay until time had effectively run out for the House of Representatives to act on the immigration reform bill already passed by the Senate.
By September, however, the administration had no reason for further delay except to avoid political damage to Democratic candidates from attacks by anti-immigration Republicans. Ironically, many political observers think the administration’s calculation backfired by reducing Latino voters’ turnout for Democratic candidates without in any way lessening the anti-Obama sentiment among Republicans and independents.
The political debate over the policy is quickly moving into the courts. Joe Arpaio, the anti-immigrant sheriff ofMaricopa County , Ariz. , immediately vowed to sue over the policy; two Tennessee
In a different era, legal observers could confidently predict that the courts would steer clear of what is clearly a political dispute. The regrettable reality these days, however, is that partisan politics have spilled over into the courts. Witness the rulings on same-sex marriage. With one exception, the few federal judges to reject marriage rights for same-sex couples have all been Republican appointees. And GOP-appointed judges have been behind the legal setbacks dealt so far to the Affordable Care Act.
Beyond releasing the OLC memo, the administration is touting a letter defending the immigration policy signed by 10 constitutional scholars ranging from the Harvard liberal Laurence Tribe to the University of Chicago conservative Eric Posner. The signers acknowledge differences over immigration policy but join in concluding that the “executive actions” announced by Obama are “lawful.”
The OLC memo answers some of the criticisms of Obama’s move heard before the president’s announcement and since. Executive discretion in granting “deferred action” is well established, the memo says, as long as the status can be withheld on a case-by-case basis. Among five precedents cited is the move by President George H.W. Bush in 1990 to grant deferred-action status to approximately 1.5 million parents and children of aliens granted legal status under the 1986 amnesty approved by Congress and signed by another Republican president, Ronald Reagan.
Other similar moves since then have granted deferred-action status to victims of domestic violence and human trafficking. Most recently, Obama’s so-called Deferred Action for Childhood Arrivals program (DACA) removed the threat of deportation from the self-styled “Dreamers,” the under-30 immigrants who for the most part have known no other country than theUnited States
The OLC memo discloses that the office gave oral instead of written approval for Obama’s earlier move, but the information only underscores the more formal green-light for the latest move. The memo also acknowledges that the latest move benefits more immigrants than any of the similar precedents, but finds the size irrelevant to its validity as long as the policy does not amount to an “abdication” of enforcing immigration laws.
Obama took to the political hustings immediately to argue and rally support for his policy even as Republicans mounted sharp political attacks. When the litigation begins, judges will face the challenging task of tuning out the politics and focusing only on the law, which strongly supports Obama’s position.
The 33-page legal memorandum by the Justice Department’s Office of Legal Counsel (OLC) provides a well-reasoned and well-documented conclusion that the president’s policy is “a permissible exercise of [the Department of Homeland Security’s] discretion to enforce the immigration laws.” As the memorandum explains, the policy specifies somewhat restrictive criteria for eligibility for the time-limited protection from deportation and limits the legal rights or benefits for immigrants covered by the policy: work permits, yes; health benefits, no; and no legalization or path to citizenship.
The memorandum cites Supreme Court precedents, congressional enactments, and longstanding regulations as legal authority. The categorical protection for immigrants who have been in the
The OLC memo gains credibility by its second conclusion that the same protection from deportation — in legal parlance, “deferred action” — cannot be extended to the parents of immigrants who have been previously been granted that status. The memo finds “no precedent for using deferred action to respond to humanitarian concerns arising from previous exercise of deferred action.”
The strong legal and policy arguments in support of the policy all but destroys the administration’s justification for delaying the move until after the midterm elections. All of the reasons for the policy were just as strong a year ago as they are now. Arguably, Obama needed to delay until time had effectively run out for the House of Representatives to act on the immigration reform bill already passed by the Senate.
By September, however, the administration had no reason for further delay except to avoid political damage to Democratic candidates from attacks by anti-immigration Republicans. Ironically, many political observers think the administration’s calculation backfired by reducing Latino voters’ turnout for Democratic candidates without in any way lessening the anti-Obama sentiment among Republicans and independents.
The political debate over the policy is quickly moving into the courts. Joe Arpaio, the anti-immigrant sheriff of
In a different era, legal observers could confidently predict that the courts would steer clear of what is clearly a political dispute. The regrettable reality these days, however, is that partisan politics have spilled over into the courts. Witness the rulings on same-sex marriage. With one exception, the few federal judges to reject marriage rights for same-sex couples have all been Republican appointees. And GOP-appointed judges have been behind the legal setbacks dealt so far to the Affordable Care Act.
Beyond releasing the OLC memo, the administration is touting a letter defending the immigration policy signed by 10 constitutional scholars ranging from the Harvard liberal Laurence Tribe to the University of Chicago conservative Eric Posner. The signers acknowledge differences over immigration policy but join in concluding that the “executive actions” announced by Obama are “lawful.”
The OLC memo answers some of the criticisms of Obama’s move heard before the president’s announcement and since. Executive discretion in granting “deferred action” is well established, the memo says, as long as the status can be withheld on a case-by-case basis. Among five precedents cited is the move by President George H.W. Bush in 1990 to grant deferred-action status to approximately 1.5 million parents and children of aliens granted legal status under the 1986 amnesty approved by Congress and signed by another Republican president, Ronald Reagan.
Other similar moves since then have granted deferred-action status to victims of domestic violence and human trafficking. Most recently, Obama’s so-called Deferred Action for Childhood Arrivals program (DACA) removed the threat of deportation from the self-styled “Dreamers,” the under-30 immigrants who for the most part have known no other country than the
The OLC memo discloses that the office gave oral instead of written approval for Obama’s earlier move, but the information only underscores the more formal green-light for the latest move. The memo also acknowledges that the latest move benefits more immigrants than any of the similar precedents, but finds the size irrelevant to its validity as long as the policy does not amount to an “abdication” of enforcing immigration laws.
Obama took to the political hustings immediately to argue and rally support for his policy even as Republicans mounted sharp political attacks. When the litigation begins, judges will face the challenging task of tuning out the politics and focusing only on the law, which strongly supports Obama’s position.
Sunday, November 16, 2014
In Alabama, Still Segregating Voters by Race
The white political establishment in Tuskegee, Ala., hit on a simple way in the late 1950s to hold on to power despite the city’s growing black population. The state legislature simply redrew the city’s boundary lines into what the Supreme Court later described as “a strangely irregular 28-sided figure.” The new boundaries fenced out all but a few of the 40 0 African Americans who had been living within Tuskegee’s city limits and no white voters.
The Supreme Court in 1960 had no difficulty in spotting an apparent violation of the political rights of the city’s black population. In a unanimous decision, the court ruled in Gomillon v. Lightfoot that segregating the city’s residents by race violated either the Fifteenth Amendment’s protection of voting rights or (according to one justice) the Fourteenth Amendment’s Equal Protection Clause.
Drawing legislative districts is more complicated than drawing city limits, and the process is all the more complicated thanks to a series of Supreme Court decisions and congressional enactments beginning in the 1960s. But Alabama’s white political establishment, functioning through the state’s Republican Party, has nevertheless found a way to neuter the political strength of black Alabamians, who comprise about one-fourth of the state’s population.
With Republicans controlling both houses of the state legislature, GOP lawmakers drew up new district lines after the 2010 census that packed African Americans into districts that already had black majorities. The line-drawing helped ensure that African Americans hold about one-fourth of the seats in both chambers, but it also limited any ability of black voters to form effective coalitions with white Democratic voters in other districts.
Black legislators and the biracial Democratic Conference challenged the redistricting plan in federal court as a violation of political rights protected either by the Constitution or the federal Voting Rights Act. A divided three-judge court upheld the plan. And in Supreme Court arguments last week [Nov. 12], conservative justices led by Chief Justice John G. Roberts Jr. appeared ready to reward Alabama Republicans with a decision upholding the racial line-drawing as nothing more than partisan redistricting politics as usual.
Alabama’s Republican solicitor general, Andrew Brasher, told the justices that the plan was aimed at protecting African American voters’ ability to elect candidates of their choice while complying with the Supreme Court’s “one person, one vote” rule for equal-population districts. Liberal justices — in particular, Elena Kagan — appeared sympathetic to the plaintiffs’ arguments that the state had adopted an unnecessarily strict standard for equal population so as to reduce rather than protect African Americans’ influence at the polls.
The seemingly simply “one person, one vote” rule became much more complicated with a series of Supreme Court decisions starting in the 1990s that limit the use of race in drawing district lines. Under the rulings, race cannot be the “predominant” factor in drawing district lines in comparison to race-neutral considerations, such as compactness. At the same time, redistricting must comply with Voting Rights Act requirements to prevent any “retrogression” in minority voters’ ability to elect candidates of their choice.
Roberts saw the state as facing conflicting demands to add enough black voters to underpopulated districts to preserve their political strength but not so many as to “pack” those districts and limit their influence in others. “They have to hit this sweet spot between those two extremes without taking race predominantly into consideration?” Roberts said in a rhetorical question to the black legislators’ lawyer, New York University law professor Richard Pildes.
Brasher gladly accepted Roberts’s description of the state’s delicate task and defended its solution under sharp questioning from liberals Kagan and Ruth Bader Ginsburg. Brasher explained that the state had adopted a maximum range of 2 percent deviation between districts’ population. In addition, the redistricting plan avoided any reduction in the black percentages in majority-black districts so as to avoid so-called “retrogression” of minority rights.
Kagan bluntly described the argument as “a mistaken understanding of what retrogression entails.” Ginsburg echoed the point. “If that’s a misunderstanding of what [the Voting Rights Act] requires,” she said, “then the whole thing is infected by that mistake.”
Ironically, the default argument for upholding the redistricting plan may be to defend the whole thing as a partisan exercise by Republican legislators to protect the party’s interest at the expense of opposition Democrats. The Supreme Court has ruled, in theory, that political gerrymandering can go too far, but it has never found one that went too far. And two justices, Antonin Scalia and Clarence Thomas, would bar judicial review of partisan line-drawing altogether.
The justices seemed both divided and uncertain after 70 minutes of argument in the case, Alabama Legislative Black Conference v. Alabama. In a nuanced presentation, Solicitor General Donald Verrilli presented the Obama administration’s position that the case should be sent back for further proceedings to examine the role that race played in regard to individual districts.
The legal complexities had the effect, however, of obscuring the underlying political realities. Republicans in Alabama and elsewhere in the South are quite happy to segregate voters by race these days. Black voters packed into majority-minority districts elect enough black Democrats to satisfy the Voting Rights Act, but not enough to have political power, and white Democrats are a vanishing species in office. The tactics are more subtle than those of the bad old days, but hardly faithful to the constitutional principle of equal political rights for all.
The Supreme Court in 1960 had no difficulty in spotting an apparent violation of the political rights of the city’s black population. In a unanimous decision, the court ruled in Gomillon v. Lightfoot that segregating the city’s residents by race violated either the Fifteenth Amendment’s protection of voting rights or (according to one justice) the Fourteenth Amendment’s Equal Protection Clause.
Drawing legislative districts is more complicated than drawing city limits, and the process is all the more complicated thanks to a series of Supreme Court decisions and congressional enactments beginning in the 1960s. But Alabama’s white political establishment, functioning through the state’s Republican Party, has nevertheless found a way to neuter the political strength of black Alabamians, who comprise about one-fourth of the state’s population.
With Republicans controlling both houses of the state legislature, GOP lawmakers drew up new district lines after the 2010 census that packed African Americans into districts that already had black majorities. The line-drawing helped ensure that African Americans hold about one-fourth of the seats in both chambers, but it also limited any ability of black voters to form effective coalitions with white Democratic voters in other districts.
Black legislators and the biracial Democratic Conference challenged the redistricting plan in federal court as a violation of political rights protected either by the Constitution or the federal Voting Rights Act. A divided three-judge court upheld the plan. And in Supreme Court arguments last week [Nov. 12], conservative justices led by Chief Justice John G. Roberts Jr. appeared ready to reward Alabama Republicans with a decision upholding the racial line-drawing as nothing more than partisan redistricting politics as usual.
Alabama’s Republican solicitor general, Andrew Brasher, told the justices that the plan was aimed at protecting African American voters’ ability to elect candidates of their choice while complying with the Supreme Court’s “one person, one vote” rule for equal-population districts. Liberal justices — in particular, Elena Kagan — appeared sympathetic to the plaintiffs’ arguments that the state had adopted an unnecessarily strict standard for equal population so as to reduce rather than protect African Americans’ influence at the polls.
The seemingly simply “one person, one vote” rule became much more complicated with a series of Supreme Court decisions starting in the 1990s that limit the use of race in drawing district lines. Under the rulings, race cannot be the “predominant” factor in drawing district lines in comparison to race-neutral considerations, such as compactness. At the same time, redistricting must comply with Voting Rights Act requirements to prevent any “retrogression” in minority voters’ ability to elect candidates of their choice.
Roberts saw the state as facing conflicting demands to add enough black voters to underpopulated districts to preserve their political strength but not so many as to “pack” those districts and limit their influence in others. “They have to hit this sweet spot between those two extremes without taking race predominantly into consideration?” Roberts said in a rhetorical question to the black legislators’ lawyer, New York University law professor Richard Pildes.
Brasher gladly accepted Roberts’s description of the state’s delicate task and defended its solution under sharp questioning from liberals Kagan and Ruth Bader Ginsburg. Brasher explained that the state had adopted a maximum range of 2 percent deviation between districts’ population. In addition, the redistricting plan avoided any reduction in the black percentages in majority-black districts so as to avoid so-called “retrogression” of minority rights.
Kagan bluntly described the argument as “a mistaken understanding of what retrogression entails.” Ginsburg echoed the point. “If that’s a misunderstanding of what [the Voting Rights Act] requires,” she said, “then the whole thing is infected by that mistake.”
Ironically, the default argument for upholding the redistricting plan may be to defend the whole thing as a partisan exercise by Republican legislators to protect the party’s interest at the expense of opposition Democrats. The Supreme Court has ruled, in theory, that political gerrymandering can go too far, but it has never found one that went too far. And two justices, Antonin Scalia and Clarence Thomas, would bar judicial review of partisan line-drawing altogether.
The justices seemed both divided and uncertain after 70 minutes of argument in the case, Alabama Legislative Black Conference v. Alabama. In a nuanced presentation, Solicitor General Donald Verrilli presented the Obama administration’s position that the case should be sent back for further proceedings to examine the role that race played in regard to individual districts.
The legal complexities had the effect, however, of obscuring the underlying political realities. Republicans in Alabama and elsewhere in the South are quite happy to segregate voters by race these days. Black voters packed into majority-minority districts elect enough black Democrats to satisfy the Voting Rights Act, but not enough to have political power, and white Democrats are a vanishing species in office. The tactics are more subtle than those of the bad old days, but hardly faithful to the constitutional principle of equal political rights for all.
Friday, November 7, 2014
On Marriage Equality, a Blessing Well Disguised
The federal appeals court decision on Thursday [Nov. 6] upholding same-sex marriage bans in four states may be a blessing in disguise for advocates of marriage equality because it will force the Supreme Court to confront the issue, quite likely during this term. But the blessing is well disguised in an act of judicial laissez-faire that leaves the rights of same-sex couples in Kentucky, Michigan, Ohio, and Tennessee unprotected against political inertia and public disregard.
The majority opinion from the Sixth U.S. Circuit Court of Appeals turns aside the same-sex couples with a civics class lecture about the virtues of social change through the political process instead of judicial decree. It accepts as binding a one-sentence Supreme Court precedent from more than 40 years ago that has clearly been overtaken by changes in legal doctrine.
The ruling goes on to approve with utmost deference the flimsy arguments for privileging opposite-sex couples’ marriages, and only theirs, in order to promote “responsible procreation.” It allows same-sex parents to be relegated to second-class legal status based on unproven fears about adverse effects on the children’s upbringing and wellbeing. And it rests on a straw man argument that an exclusionary law can be struck down on the basis of unconstitutional animus only by proof of malicious intent on the part of legislators or voters, not by the objective impact of the law.
The ruling came three months to the day after the three-judge panel had heard a full three hours of arguments in what were technically six cases from the four states. From the outset, it was clear that the deciding vote lay with Jeffrey Sutton, a former Ohio solicitor general, Federalist Society member, and darling of legal conservatives.
Thus, it was no surprise that Sutton emerged as the author of the majority opinion released late in the afternoon. Sutton was joined in the opinion by Judge Deborah Cook, who like Sutton was appointed to the appeals court by President George W. Bush. A strong dissent came from Judge Martha Craig (Cissy) Daughtrey, a veteran jurist with unconcealed liberal views appointed to the appeals court in 1994 by President Bill Clinton. (Disclosure: Daughtrey is a personal friend of more than 40 years’ standing.)
Sutton’s opinion gives little by way of red meat to the confirmed anti-gay opponents of marriage equality. Gay couples, he says, are fully capable of forming loving relationships and of raising children in stable families. He acknowledges the “lamentable” prejudice against gays and lesbians and the tangible costs from refusing marriage to same-sex couples.
As Daughtrey points out in her dissent, however, Sutton does not consider the same-sex couples’ rights to be the issue for the court to decide. Instead, Sutton says, the question is “who decides” — federal courts or what he calls “the less expedient, but usually reliable, work of the state democratic processes.”
Sutton’s answer will cheer the advocates of judicial restraint. Political process and structure, he says, are “the most reliable, liberty-assuring guarantees of our system of government,” not the courts. History includes many examples when courts were needed to protect individual rights. In any event, as Daughtrey says in dissent, the either-or dichotomy that Sutton posits is simply a “false premise.”
Sutton is also off-base in relying on the Supreme Court’s curt rejection of same-sex marriage rights back in 1972. A succession of federal courts, including four courts of appeals, have found that precedent no longer binding. Sutton himself acknowledges its diminished weight, but Daughtrey is more to the point in dismissing it as “a dead letter.”
Sutton acknowledges the rulings from other courts, but finds them unpersuasive because the other courts have not spoken with a single voice in their legal rationales. One by one, he rejects each of the rationales. He devotes special attention to the argument that same-sex marriage bans are based on unconstitutional animus against gays and lesbians.
In Sutton’s view, it is both impossible and unfair to attribute anti-gay prejudice to all the legislators and voters who have approved or kept in place the traditional definition of one-man, one-woman marriage. Daughtrey correctly responds that the Supreme Court has not required evidence of “hostile intent” to find unconstitutional animus on the basis of a law’s objective effect.
The Supreme Court confounded legal handicappers as the justices opened the new term in October by turning aside the marriage cases that had been teed up for review. The inaction seemed to substantiate Justice Ruth Bader Ginsburg’s suggestion that the court was waiting for a conflict at the circuit court level before stepping in.
Sutton’s opinion now creates that conflict. Lawyers for the plaintiff couples in the Michigan and Ohio cases promptly said that they would promptly file petitions asking the high court to hear their appeals. Time is short, but the calendar allows the petitions and the states’ replies to be filed in time for the justices to consider the cases by mid-January — the customary deadline for arguments and decision this term.
Sutton advises the court to let the political process continue so that “fellow citizens,” gay and straight alike, can resolve this “new social issue” in “a fair-minded way.” Daughtrey has a strong rejoinder. If the courts shirk their “responsibility to right fundamental wrongs left excused by a majority of the electorate,” she writes, the constitutional system of checks and balance will “prove to be nothing but shams.”
The majority opinion from the Sixth U.S. Circuit Court of Appeals turns aside the same-sex couples with a civics class lecture about the virtues of social change through the political process instead of judicial decree. It accepts as binding a one-sentence Supreme Court precedent from more than 40 years ago that has clearly been overtaken by changes in legal doctrine.
The ruling goes on to approve with utmost deference the flimsy arguments for privileging opposite-sex couples’ marriages, and only theirs, in order to promote “responsible procreation.” It allows same-sex parents to be relegated to second-class legal status based on unproven fears about adverse effects on the children’s upbringing and wellbeing. And it rests on a straw man argument that an exclusionary law can be struck down on the basis of unconstitutional animus only by proof of malicious intent on the part of legislators or voters, not by the objective impact of the law.
The ruling came three months to the day after the three-judge panel had heard a full three hours of arguments in what were technically six cases from the four states. From the outset, it was clear that the deciding vote lay with Jeffrey Sutton, a former Ohio solicitor general, Federalist Society member, and darling of legal conservatives.
Thus, it was no surprise that Sutton emerged as the author of the majority opinion released late in the afternoon. Sutton was joined in the opinion by Judge Deborah Cook, who like Sutton was appointed to the appeals court by President George W. Bush. A strong dissent came from Judge Martha Craig (Cissy) Daughtrey, a veteran jurist with unconcealed liberal views appointed to the appeals court in 1994 by President Bill Clinton. (Disclosure: Daughtrey is a personal friend of more than 40 years’ standing.)
Sutton’s opinion gives little by way of red meat to the confirmed anti-gay opponents of marriage equality. Gay couples, he says, are fully capable of forming loving relationships and of raising children in stable families. He acknowledges the “lamentable” prejudice against gays and lesbians and the tangible costs from refusing marriage to same-sex couples.
As Daughtrey points out in her dissent, however, Sutton does not consider the same-sex couples’ rights to be the issue for the court to decide. Instead, Sutton says, the question is “who decides” — federal courts or what he calls “the less expedient, but usually reliable, work of the state democratic processes.”
Sutton’s answer will cheer the advocates of judicial restraint. Political process and structure, he says, are “the most reliable, liberty-assuring guarantees of our system of government,” not the courts. History includes many examples when courts were needed to protect individual rights. In any event, as Daughtrey says in dissent, the either-or dichotomy that Sutton posits is simply a “false premise.”
Sutton is also off-base in relying on the Supreme Court’s curt rejection of same-sex marriage rights back in 1972. A succession of federal courts, including four courts of appeals, have found that precedent no longer binding. Sutton himself acknowledges its diminished weight, but Daughtrey is more to the point in dismissing it as “a dead letter.”
Sutton acknowledges the rulings from other courts, but finds them unpersuasive because the other courts have not spoken with a single voice in their legal rationales. One by one, he rejects each of the rationales. He devotes special attention to the argument that same-sex marriage bans are based on unconstitutional animus against gays and lesbians.
In Sutton’s view, it is both impossible and unfair to attribute anti-gay prejudice to all the legislators and voters who have approved or kept in place the traditional definition of one-man, one-woman marriage. Daughtrey correctly responds that the Supreme Court has not required evidence of “hostile intent” to find unconstitutional animus on the basis of a law’s objective effect.
The Supreme Court confounded legal handicappers as the justices opened the new term in October by turning aside the marriage cases that had been teed up for review. The inaction seemed to substantiate Justice Ruth Bader Ginsburg’s suggestion that the court was waiting for a conflict at the circuit court level before stepping in.
Sutton’s opinion now creates that conflict. Lawyers for the plaintiff couples in the Michigan and Ohio cases promptly said that they would promptly file petitions asking the high court to hear their appeals. Time is short, but the calendar allows the petitions and the states’ replies to be filed in time for the justices to consider the cases by mid-January — the customary deadline for arguments and decision this term.
Sutton advises the court to let the political process continue so that “fellow citizens,” gay and straight alike, can resolve this “new social issue” in “a fair-minded way.” Daughtrey has a strong rejoinder. If the courts shirk their “responsibility to right fundamental wrongs left excused by a majority of the electorate,” she writes, the constitutional system of checks and balance will “prove to be nothing but shams.”
Sunday, November 2, 2014
Campaign Spending Tilts Courts to Right
Campaign spending in state judicial elections has apparently reached a new high in 2014. And, if past is prologue, the likely result will be harder times ahead for criminal defendants and suspects.
The trends are worrisome for the goal of an independent judiciary, but nothing suggests a likely reversal. Free-speech rulings make it difficult to limit or regulate spending in judicial elections. In addition, divisions on legal issues are now more than ever sharply drawn along partisan lines easy to convey to voters in 30- or 60-second television spots. And, try as they might, judicial reformers are making little progress in moving away from contested elections for judgeships at the state level.
Three liberal groups have thrown the spotlight on judicial elections in well documented reports issued within the past two weeks. In the first of the reports, distributed by the American Constitution Society (ACS), researchers at Emory University School of Law examined the impact of what they called “the explosion in television attack advertisements in state supreme court elections” over the past two decades.
The careful statistical analysis in the report, entitled Skewed Justice, confirms the common-sense supposition: courts that have gone through “soft on crime” campaigns turn out to be “less likely to rule in favor of defendants in criminal appeals.” An increase in television advertising, the report finds, can result in an 8 percent decrease in rulings favoring criminal defendants on appeal. And states that removed prohibitions against corporate or union spending in the wake of the Supreme Court’s Citizens United decision saw a 7 percent decrease in pro-defense rulings on appeal.
In the second report, the Brennan Center for Justice and the advocacy group Justice at Stake highlighted what they called “a surge of last-minute outside spending” in supreme court elections in five states: Illinois, Michigan, Montana, North Carolina, and Ohio. Based on required filings with the Federal Communications Commission (FCC), the report found $1 million in TV ad buys as the final week of campaigning in those contests began. Overall, the report found $12 million in judicial campaign spending in 10 states since January.
Those sums may seem trivial compared to the amounts being spent in congressional races — for example, the record $100 million in spending by the two opponents in North Carolina’s hotly contested Senate race. But the interest groups financing judicial election campaigns know that a little money goes a long way in those races. Voters get little information about judicial elections apart from the paid advertising, and incumbent judges face ethical constraints in raising the money needed to respond.
Law-and-order is the dominant theme in the advertising in state supreme court elections. In Ohio, a group called American Freedom Builders made a $375,000 ad buy for spots that included one praising incumbent Justice Judith French for upholding the death penalty and tough criminal sentences. In Michigan, the Virginia-based Center for Individual Freedom spent $146,000 for advertising that praised two incumbent Republican justices for “throwing the books at violent predators.”
History shows that the law-and-order attack ads work. In California, three state supreme court justices, including Chief Justice Rose Bird, were ousted in 1986 after a campaign focused on the court’s repeated reversals in death penalty cases. A decade later, Tennessee Supreme Court Justice Penny White fell victim in 1996 to a similar campaign.
The well-heeled groups behind this increased spending are not primarily interested in law enforcement and public safety. Business interests hope to win favor from state supreme courts on civil litigation, workers’ rights, consumer protection, and other regulatory issues. Republican Party organizations are spending money conscious of the partisan stakes in redistricting cases that may wind up before state supreme courts.
Those issues do not resonate with voters as much as ads that pillory justices for ruling in favor of criminal defendants. The “sophisticated” special-interest groups financing the judicial campaigns “understand that ‘soft on crime’ attack ads are often the best means of removing from office justices they oppose,” the report states.
Concern about the political impact of judicial elections extends to lower courts as well. At the Supreme Court, Justice Sonia Sotomayor suggested in November 2013 that Alabama’s system of partisan elections helped explain the unusual number of cases in which judges imposed the death penalty after juries had voted for imprisonment instead.
Judicial reformers have worried about the political threats to judicial independence at least since the 1930s, but they are up against an ingrained public belief in elections. One reform widely adopted is the so-called Missouri plan: judges are appointed after a merit selection process and then run in yes/no “retention” elections. That system did not protect the California or Tennessee justices from partisan attack and defeat.
Another reform, nonpartisan elections, is not necessarily effective either. The state supreme court contests in North Carolina are technically nonpartisan, but the opposing candidates are easily identifiable as Republicans or Democrats. For several years, North Carolina used public financing to try to immunize judges from political pressures, but the Republican-controlled legislature abolished that system in 2013.
Judicial politics may be dirty business, but handwringing will make it no cleaner. Those groups that want to strengthen the independence of the judiciary have no choice but to respond in kind to the campaign tactics being used by those groups that want to bend judges to their will.
The trends are worrisome for the goal of an independent judiciary, but nothing suggests a likely reversal. Free-speech rulings make it difficult to limit or regulate spending in judicial elections. In addition, divisions on legal issues are now more than ever sharply drawn along partisan lines easy to convey to voters in 30- or 60-second television spots. And, try as they might, judicial reformers are making little progress in moving away from contested elections for judgeships at the state level.
Three liberal groups have thrown the spotlight on judicial elections in well documented reports issued within the past two weeks. In the first of the reports, distributed by the American Constitution Society (ACS), researchers at Emory University School of Law examined the impact of what they called “the explosion in television attack advertisements in state supreme court elections” over the past two decades.
The careful statistical analysis in the report, entitled Skewed Justice, confirms the common-sense supposition: courts that have gone through “soft on crime” campaigns turn out to be “less likely to rule in favor of defendants in criminal appeals.” An increase in television advertising, the report finds, can result in an 8 percent decrease in rulings favoring criminal defendants on appeal. And states that removed prohibitions against corporate or union spending in the wake of the Supreme Court’s Citizens United decision saw a 7 percent decrease in pro-defense rulings on appeal.
In the second report, the Brennan Center for Justice and the advocacy group Justice at Stake highlighted what they called “a surge of last-minute outside spending” in supreme court elections in five states: Illinois, Michigan, Montana, North Carolina, and Ohio. Based on required filings with the Federal Communications Commission (FCC), the report found $1 million in TV ad buys as the final week of campaigning in those contests began. Overall, the report found $12 million in judicial campaign spending in 10 states since January.
Those sums may seem trivial compared to the amounts being spent in congressional races — for example, the record $100 million in spending by the two opponents in North Carolina’s hotly contested Senate race. But the interest groups financing judicial election campaigns know that a little money goes a long way in those races. Voters get little information about judicial elections apart from the paid advertising, and incumbent judges face ethical constraints in raising the money needed to respond.
Law-and-order is the dominant theme in the advertising in state supreme court elections. In Ohio, a group called American Freedom Builders made a $375,000 ad buy for spots that included one praising incumbent Justice Judith French for upholding the death penalty and tough criminal sentences. In Michigan, the Virginia-based Center for Individual Freedom spent $146,000 for advertising that praised two incumbent Republican justices for “throwing the books at violent predators.”
History shows that the law-and-order attack ads work. In California, three state supreme court justices, including Chief Justice Rose Bird, were ousted in 1986 after a campaign focused on the court’s repeated reversals in death penalty cases. A decade later, Tennessee Supreme Court Justice Penny White fell victim in 1996 to a similar campaign.
The well-heeled groups behind this increased spending are not primarily interested in law enforcement and public safety. Business interests hope to win favor from state supreme courts on civil litigation, workers’ rights, consumer protection, and other regulatory issues. Republican Party organizations are spending money conscious of the partisan stakes in redistricting cases that may wind up before state supreme courts.
Those issues do not resonate with voters as much as ads that pillory justices for ruling in favor of criminal defendants. The “sophisticated” special-interest groups financing the judicial campaigns “understand that ‘soft on crime’ attack ads are often the best means of removing from office justices they oppose,” the report states.
Concern about the political impact of judicial elections extends to lower courts as well. At the Supreme Court, Justice Sonia Sotomayor suggested in November 2013 that Alabama’s system of partisan elections helped explain the unusual number of cases in which judges imposed the death penalty after juries had voted for imprisonment instead.
Judicial reformers have worried about the political threats to judicial independence at least since the 1930s, but they are up against an ingrained public belief in elections. One reform widely adopted is the so-called Missouri plan: judges are appointed after a merit selection process and then run in yes/no “retention” elections. That system did not protect the California or Tennessee justices from partisan attack and defeat.
Another reform, nonpartisan elections, is not necessarily effective either. The state supreme court contests in North Carolina are technically nonpartisan, but the opposing candidates are easily identifiable as Republicans or Democrats. For several years, North Carolina used public financing to try to immunize judges from political pressures, but the Republican-controlled legislature abolished that system in 2013.
Judicial politics may be dirty business, but handwringing will make it no cleaner. Those groups that want to strengthen the independence of the judiciary have no choice but to respond in kind to the campaign tactics being used by those groups that want to bend judges to their will.