With his Supreme Court nominee, Obama chooses the path of least resistance

Published: The Daily Dot (March 16, 2016)

President Barack Obama announced his appointment to replace the late Justice Antonin Scalia on the Supreme Court on Wednesday. His choice is Merrick Garland, one of the most conservative judges ever chosen by a modern Democratic president.

The Internet doesn’t seem particularly impressed. Perhaps this is because Garland doesn’t have much in the way of a record when it comes to the typical divisive issues facing a Supreme Court nominee, like privacy, abortion, the death penalty, and affirmative action. As a judge in the U.S. Court of Appeals for the D.C. Circuit for the past 19 years, Garland mostly dealt with regulatory issues.

Frankly, the topic that’s getting the most attention is the man’s name. Literally. We can start with my personal favorite:

“Dang, Obama went with Merrick Garland? I was hoping he’d go for Smithery Bramble or Shawshank McNoodle”

This may be the star of the show, but there are plenty of runners up. Some have offered commentary on how he would be just one more white guy on the court:

“Names That Are Whiter Than ‘Merrick Garland’
1. Cholmondelay Golf-Clubb
2. Stanford Wharton Yale III
3. Trey Amusant
4. Dickie Mayflower”

Others associated his unusual name with fixtures of popular culture:

“merrick garland sounds like a minor character on nashville”

Some just had fun with it:

“Merrick Garland sounds like the name of a small forward who takes a lot of charges at Duke”

“Merrick Garland sounds like a brunch spot where eggs are $26”

While these tweets are certainly creative and humorous, they obscure the important details surrounding Garland’s selection to the nation’s highest court.

For one thing, he is a choice that Republicans will have a difficult time opposing on his merits. Sen. Orrin Hatch, the longest serving Republican member of the Senate Judiciary Committee, told the conservative site Newsmax last week that he thought Garland was the judge Obama should pick.

“[Obama] could easily name Merrick Garland, who is a fine man,” the Utah Senator commented, adding that “he probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”

If Obama had wanted to inspire his base or guarantee a liberal legacy on the bench, he would have gone in a much bolder direction.

Indeed, seven Republicans currently in the Senate voted to confirm Garland to the U.S. Court of Appeals to the D.C. Circuit in 1997—including Hatch, Dan Coats of Indiana, Thad Cochran of Mississippi, Susan Collins Maine, Jim Inhofe of Oklahoma, John McCain of Arizona, and Pat Roberts Kansas. If nothing else, Garland is certainly a pick that the Republican Party will have a hard time opposing without seeming blatantly partisan.

At the same time, there isn’t much to recommend Garland beyond these practical considerations. His other noteworthy characteristics after all, are the fact that he’d be unusually old for a Supreme Court judge (63), which makes it less likely that he would have as many years on the bench as most judges. And he oversaw two high-profile terrorism cases, the Oklahoma City bombing and Ted Kaczynski, also known as the Unabomber. This, along with Garland’s comparatively conservative record and bipartisan appeal, makes him the perfect candidate for twisting GOP arms. If Obama had wanted to inspire his base or guarantee a liberal legacy on the bench, he would have gone in a much bolder direction. Garland, by contrast, is aggressively uninspiring.

But with the Republicans threatening to refuse to even hold a vote on Garland’s nomination until a new president is elected, Obama has clearly chosen the someone who might make it easier to reach across the aisle in the final months of his presidency.

My hunch is that this may bode ill for Garland’s prospects. On the one hand, Obama isn’t wrong in assuming that the Senate Republicans will be in a tough spot trying to justify opposing a vote on Garland’s confirmation. Aside from a strongly liberal position on gun control (which has already received criticism from the right), Garland’s record mostly involves esoteric regulatory matters that rarely stir up strongly held emotions. While leaning to the left, his reputation is generally that of a meticulous researcher who tries to find consensus between his colleagues. In the words used by Judge John Roberts during his confirmation hearing in 2005 to become chief justice of the Supreme Court, “Any time Judge Garland disagrees, you know you’re in a difficult area.”

Obama has clearly chosen the someone who might make it easier to reach across the aisle in the final months of his presidency.

Unfortunately, Garland’s blandness will make it difficult for the left to rally behind him with a force equal to that which can be anticipated by the Republicans who will oppose him. If Obama had gone with D.C. Circuit Judge Sri Srinivasan, he could have inspired progressives by appointing the first Indian-American and first Hindu judge to the bench; the same can be said of Attorney General Loretta Lynch, who would have been the first African-American woman to receive that honor. Similarly, Obama could have chosen a strong liberal voice like U.S. 9th Circuit Court of Appeals Judge Paul Watford, who has taken courageous stances on hot button issues like opposing lethal injections and defending illegal immigrants.

Instead, Obama seems to have opted for the path of least resistance.

The next Supreme Court justice and the future of the Internet

Published: The Daily Dot (February 22, 2016)

When it comes to the field of cyber law, it’s rather ironic that the next Supreme Court justice will replace the late Antonin Scalia. After all, the famous constitutional originalist revealed in 2012 that, if he had his druthers, his successor would be University of Chicago law professor Frank Easterbrook, a man who once compared studying Internet law to creating a hypothetical field in “horse law.”

“Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows,” Easterbrook argued. “Any effort to collect these strands into a course on ‘The Law of the Horse’ is doomed to be shallow and to miss unifying principles.” So too, he claimed, withthe Internet.

Not surprisingly, Easterbrook isn’t on President Barack Obama’s short list to replace Scalia, in large part because his self-proclaimed “originalist” views differ so widely from those of the liberal Democratic Party. Fortunately, several of the other judges and lawyers reportedly being considered by the president do have backgrounds in cyber law, stretching beyond merely dismissing it as the modern equivalent of equine jurisprudence.

As Republicans and Democrats argue over whether the White House should wait until a new president is sworn into office next year, Obama has made it clear that he will nominate a replacement soon.

As Republicans and Democrats argue over whether the White House should wait until a new president is sworn into office next year, Obama has made it clear that he will nominate a replacement soon.

First on the list is D.C. Circuit Court Judge Sri Srinivasan, who is widely regarded as afrontrunner to replace Scalia. Although his views on net neutrality aren’t well known, they will soon become very important to the fate of the Internet. In December Srinivasan joined a panel with fellow judges Stephen Williams and David Tatel to determine whether Internet providers can be legally permitted to favor preferred websites when consumers surf the web on their personal computers, smartphones, and tablets. Tatel has already demonstrated an opposition to net neutrality, having authored opinions striking down the FCC’s attempts to enforce net neutrality on two previous occasions, which means that Srinivasan’s views on the subject will be particularly important.

More disturbing are the views of U.S. Attorney General Loretta Lynch, who is also reportedly on Obama’s short list. When confronted with the NSA’s surveillance program that included spying on every American through their various uses of the Internet, Lynch has been an unapologetic supporter for the agency’s excesses. Speaking with CBS News in May, Lynch warned that the United States would be “less safe” unless the NSA had broad-reaching powers to monitor Americans using telephone records and information about their Internet use. “I think that we lose important tools. I think that we lose the ability to intercept these communications, which have proven very important in cases that we have built in the past,” she explained. “I am very concerned that the American people will be unprotected if this law expires. I’m hopeful, however, that Congress, who I know is working on this issue, will come to a resolution.”

By contrast, California Attorney General Kamala Harris seems to have a strong appreciation for the importance of online privacy. Although she hasn’t been involved in deciding NSA policy, she has been a staunch protector for consumersin her state who don’t want their personal information collected and passed onto buyers who specify their marketing based on this individual data. These have included sending notices to 100 app makers in her state who hadn’t heeded disclosure guidelines, suing Delta Airlines for collecting personal data without fully informing their users, and urging that app makers not ask for personal data when it’s not essential for basic functions. “These are challenges that we must confront and that we must resolve in a way that appropriately protects privacy while not unduly stifling innovation,” Harris told CBS News, recognizing the importance of app development to our economy while insisting on the right to privacy.

Issues ranging from national security and copyright infringement to protecting privacy and curbing the power of big business have intersected with cyber law and how it ought to be conceived and implemented. As the Internet becomes more and more prevalent in our social, political, and cultural life, these questions are only going to multiply.

Finally, we can look at Minnesota Sen. Amy Klobuchar, who represents how the views of individual policymakers can evolve over time on these issues. Back in 2011, Klobuchar joined 11 other senators in co-sponsoring the Protect IP Act (PIPA), which along with the Stop Online Piracy Act (SOPA) in the House was written with the goal of stopping “rogue websites dedicated to infringing on counterfeit goods.” After becoming aware of her constituents’ concerns that PIPA and SOPA would stifle creativity under the guise of protecting copyright holders, however, Klobuchar’s officewalked back its support for the bill. “[Klobuchar] believes we need to address concerns being raised today and work out a compromise that balances free exchange on the Internet with stopping foreign piracy that hurts our economy,” her staff explained.

There are several advantages to reviewing the records of Srinivasan, Lynch, Harris, and Klobuchar on Internet law. Along with representing very different points on the spectrum of American legislative/judicial life (being, respectively, a circuit court judge, a federal attorney general, a state attorney general, and a federal senator), each one has been required to confront thorny issues about how the Internet fits into the modern legal system. Issues ranging from national security and copyright infringement to protecting privacy and curbing the power of big business have intersected with cyber law and how it ought to be conceived and implemented. As the Internet becomes more and more prevalent in our social, political, and cultural life, these questions are only going to multiply.

Does this mean that Easterbrook was right when he compared “any effort to collect these strands” as comparable to creating “a course on ‘The Law of the Horse’”? Certainly he was correct in assessing that, as of yet, no unifying and coherent juridical philosophy exists to govern Internet law. At the same time, whereas a horse is merely one animal among many that are commonly used in the modern world, the Internet’s reach spans so far and is so enormous that judges are going to be compelled to come up with a consistent way of legally contextualizing it whether they want to or not. As Srinivasan and Klobuchar have learned, we will need to determine the extent to which it belongs to the public rather than the private businesses that currently profit of it; as Harris demonstrated, it will be necessary to protect ordinary people from exploitation, much of which they couldn’t have even conceptualized less than a quarter-century ago; and as Lynch’s stance on NSA surveillance makes clear, there are many in the government who believe it needs to be carefully monitored for national security reasons, even if the methods used are constitutionally questionable.

There are no easy answers to these questions, but it is vital that we ask them. Hopefully, as Obama narrows down his list of possible replacements for Scalia, he is asking them as well.

Supreme Court Justice Antonin Scalia’s evolution on Internet freedom

Published: The Daily Dot (February 14, 2016)

Say what you will about Supreme Court Justice Antonin Scalia–and pundits and people on both the left and the right have been doing just that since his passing on Saturday–but when it comes to Internet freedom, he may have been one of the great legal minds of our time.

Let’s start with a 2005 case in which an Internet service provider named Brand X sued the National Cable & Telecommunications Association. The central issue was whether companies that promised high-speed Internet access had the right to use the faster infrastructure available to big content providers. To determine that, the court needed to first determine whether the Federal Communications Commissionhad the right to label cable broadband companies as providing an information service (which would mean they could deny them access) or a telecommunications service (which would mean they could not). Although the court ruled 6-3 in favor of the FCC’s right to do as they pleased, Scalia joined liberal judges Ruth Bader Ginsburg and David Souter in offering a powerful dissent.

“The relevant question is whether the individual components in a package being offered still possess sufficient identity to be described as separate objects of the offer, or whether they have been so changed by their combination with the other components that it is no longer reasonable to describe them in that way,” Scalia observed.

Although the FCC insisted that the product being offered by these Internet service providers (i.e., Internet service) was somehow distinguishable from their ability to provide it in a timely fashion (i.e., with high speed), Scalia argued that this distinction would be dismissed as self-evidently absurd when applied to other businesses. For instance, “If I call up a pizzeria and ask whether they offer delivery, both common sense and common ‘usage’… would prevent them from answering, ‘No, we do not offer deliver–but if you order a pizza from us, we’ll bake it for you and then bring it to your house.’” Indeed, “the myth that the pizzeria does not offer delivery becomes even more difficult to maintain when the pizzeria advertises quick delivery as one of its advantages over competitors. That, of course, is the case with cable broadband.”

Flash forward to last spring, when a federal appeals court ruled that NSA bulk data collection was illegal, paving the way for the case to head to the Supreme Court. According to the ruling by the Second Circuit Court of Appeals, Section 215 of the U.S.A Patriot Act does not permit the government to engage in bulk collection of domestic calling records, even though the NSA had justified the practice by citing that provision of the bill. Because Section 215 “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,” the court declared, the program was illegal, adding that “if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.”

Although Scalia’s positions on Internet freedom ranged from supporting net neutrality to questioning whether a right to privacy exists throughout his career, the most important quality here is that they evolved.

Someone anticipating how Scalia would approach this issue may have assumed that he would side with the NSA, given his well-known skepticism on the notion of a government right to privacy. That said, an incident back in 2009 may have impacted Scalia’s view on this topic. A Fordham University law professor named Joel Reidenberg asked his class to search for any publicly available but personal information about Justice Scalia in response to a speech by the judge in which he questioned whether more privacy protections were really necessary.

By the time the dossier was presented to Scalia, itincluded the judge’s home address, phone number, favorite movies and foods, wife’s personal email address, and pictures of his grandchildren. “It is not a rare phenomenon that what is legal may also be quite irresponsible,” Scalia wrote in response to Reidenberg’s dossier. “That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.”

While Scalia seemed resolute in his thinking at the time, though, it seems that the experience prompted him to at least question some of his initial conclusions.

When it came to two cases heard by the Supreme Court in 2014, in which the fundamental issue was whether Americans’ cell phones required as much protection as their private homes, Scalia acknowledged that law enforcement officers should be allowed to search phones in cases where the devices could obviously contain information relevant to a potential crime, he conceded that if someone is arrested for an offense like driving without a seat belt, “it seems absurd that they should be able to search that person’s iPhone.”

That same year, as the Supreme Court was confronted with the possibility of ruling on whether the NSA’s domestic surveillance program was constitutional (a case that Scalia felt was “truly stupid” for having reached his court, since he felt they were least qualified to make knowledgeable national security assessments), he was visibly impressed when an audience member at Brooklyn Law School asked whether data stored on computer drives could count as “effects” under the Fourth Amendment, which guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Although Scalia insisted that “conversations are quite different” from the four entities protected from unwarranted search and seizures by the Constitution, he implicitly acknowledged that data may fall into a different category altogether. “I better not answer that,” he told his questioner, since “that is something that may well come up [before the Supreme Court].”

Scalia was correct in observing that questions about where exactly the Internet falls into American jurisprudence are very tricky–and that the court will, eventually, need to render important decisions about them.

Although Scalia’s positions on Internet freedom ranged from supporting net neutrality to questioning whether a right to privacy exists throughout his career, the most important quality here is that they evolved.

Despite being a staunch originalist (meaning he believed cases should be decided based solely on the original intent of the Founding Fathers), Scalia recognized that the technological advances brought about by the Internet age meant that old legal traditions need to re-evaluated in a new light.

A prisoner was dragged 107 feet by guards and died 9 days later—where’s his hashtag?

Published: The Daily Dot (September 25, 2015)

Back in October, 59-year-old Wayne County Jail inmate Abdul Akbar suffered multiple bodily injuries—after prison guards tried to restrain him. Reports obtained through a Freedom of Information Act request claim that Akbar became violent after he overslept and missed breakfast, destroying a computer and resisting guards’ orders when they tried to control the situation. Video footage from jail cameras—which has since gone viral—showed Akbar’s unconscious body being dragged 107 feet across the floor to an elevator, clearly violating proper protocol regarding prisoners’ rights.

Akbar died nine days later.

Although prisoners do sacrifice many of their rights upon being incarcerated (such as the right to vote or purchase certain weapons), they have not forfeited the right to have their bodies treated with respect. As the Supreme Court explained in its 1987 ruling Turner v. Safley, “prison walls do not form a barrier separating inmates from the protections of the Constitution.” Unfortunately, as a string of incidents involving prisoner abuse by corrections officers has made clear, this protection is not widely recognized by the modern prison-industrial complex.

At a time when #BlackLivesMatter shines a light on police brutality, it’s time to recognize that injustice also reflects on our prison population: Prisoners lives’ matter, too. A handful of Twitter users have been hashtagging these everyday abuses, but #PrisonersLivesMatter has yet to go viral—stirring public debate and creating a widespread movement for reform. That needs to change.

Video footage from jail cameras—which has since gone viral—showed Akbar’s unconscious body being dragged 107 feet across the floor to an elevator.

The number of incidents indicating this trend is disturbing and growing. At the Fishkill Correctional Facility in Beacon, New York, a mentally unstable inmate named Samuel Harrellwas kicked and punched to death by more than 20 officers—who were nicknamed “the beat-up squad” for their zeal in using physical force to subdue prisoners. In Georgia, four corrections officerswere sent to prison after pleading guilty to regularly beating up inmates and then covering up the abuse. The most notorious incident involved a prisoner who was handcuffed, escorted to a gymnasium where there were no surveillance cameras, and then beaten to the point that he received traumatic brain injury.

Meanwhile, a Maryland inmate named Sandy Brown was held in administrative segregation solely because she was transgender, where she was subjected to physical and verbal harassment for more than two months. In a landmark decision, Brown recently won her suit against the correctional facility.

But in Akbar’s case, despite telling medical personnel that he “got stomped in the face” and was beaten by multiple guards, he never received any tests for possible bleeding in his brain (and the Wayne County Medical Examiner insists there was no evidence of such during the autopsy). He also reported a sore jaw and pain in both his left leg and the right part of his chest. Despite dying of a heart ailment, the county prosecutor decided that there couldn’t have been a connection between the injuries he sustained and his subsequent death.

Along with violent assault, the most common form of inmate abuse is sexual assault. Although corrections officers used to overwhelmingly deny that prison rape was a prevalent problem, the Bureau of Justice Statistics has discoveredthrough a series of studies that sexual assault is actually disturbingly common in American prisons today—with mentally ill inmates disproportionately likely to experience sexual abuse. In 2011 alone, more than 200,000 people were sexually abused in American prisons, and nearly half of all the sexual assault allegations made that year were directed against prison guards and staff.

What can Americans do to address this problem?

To begin, we need to acknowledge that there is a big difference between private, for-profit prisons and publicly-owned facilities. For instance, a study in Mississippi back in 2013 found that inmates were two to three times more likely to be assaulted in that state’s private prisons than they were in the public ones.

The most notorious incident involved a prisoner who was handcuffed, escorted to a gymnasium where there were no surveillance cameras, and then beaten to the point that he received traumatic brain injury.

Even setting aside cases of officer-on-inmate abuse, the data still indicates that prisons are more likely to be violent when privately managed. A national study in 2013 determined that assaults on guards by inmates were 49 percent more frequent in private prisons, while assaults on fellow inmates were 65 percent more common. The report also found that private prisons were more likely to withhold medical care after an inmate was injured, presumably to protect their bottom line.

Similarly, a report by the American Civil Liberties Union (ACLU) found that abuse against immigrants is rampant in privately owned prisons, from substandard living conditions and overcrowding to overuse of isolation units against inmates. Considering that the prison-industrial complex has already caused America to develop the world’s largest prison population, the strong correlation between inmate abuse and private facilities only reinforces the need to end the practice of allowing prisons to be run for profit.

In addition, we need to confront the cultural assumptions that allow us to turn a blind eye to prisoner abuse. There is an undeniable stigma attached to going to prison, one that strips prisoners of their humanity. This makes it exceptionally difficult for ex-cons to obtain gainful employment and encourages America to employ penal practices (such as the death penalty) that have been abolished in most other developed nations. After all, if prisoners are less than human, their deaths don’t matter as much.

In addition to legacies of systemic racism, one could argue that the rampant stories of racial profiling and excessive force among police officers against unarmed black men they suspected of criminal behavior—from Michael Brown toFreddie Gray—is part of this same larger story. After all, if so many Americans are willing to believe that a person’s basic rights can be forfeited simply because they are suspected of wrongdoing, how easy will it be to convince them that someone who has already been convicted is still entitled to not have his or her body and mind subjected to abuse?

In the end, the same Twitter users and social justice advocates who stand with hashtag campaigns like #BlackLivesMatter have a responsibility to support everyone who is harmed by America’s systemic injustices. Until we address the brutality that takes place every day behind bars, we will continue to fight for some Americans’ safety while continuing to ignore others.

5 Reasons Why the U.S. Election System is On Life Support

Published: Question of the Day (August 11, 2015)

The United States election system may not be fatally flawed, but in many ways it’s on life support.

Here are five reasons why that is the case:

1. We make it harder for people to vote.

For one thing, as Eric Black explained in an article for MinnPost, most democratic nations don’t require citizens to register to vote — it happens automatically. “In general, the governments know the names, ages and addresses of most of its citizens and — except in the United States — provide the appropriate polling place with a list of those qualified to vote,” Black writes. By requiring citizens to register, the American government adds an extra step to voting that increases the likelihood busy eligible citizens won’t bother to turn out on Election Day. In addition, Voter ID laws and the Supreme Court’s overturning of Sections 4(b) and 5 of the Voting Rights Act (which required states with a history of discrimination in voting to obtain federal preclearance before changing their voting laws) has even further reduced voter turnout. In the 2014 midterm elections, the first to be held since the Supreme Court ruling, only 41.9 percent of eligible citizens turned out to vote, the lowest number since the Census started collecting voting activity in 1978. The decline was strongest among racial minorities and individuals with low incomes.

2. It is ridiculously expensive to campaign for a higher office in this country.

During the 2012 presidential election, the Obama and Romney campaigns each spent more than $1 billion each ($1.123 billion and $1.019 billion, respectively); during the 2014 midterm elections two years later, roughly $3.67 billion was spent in congressional races throughout the country. What’s more, a study by the Brennan Center for Justice determined that the influence of big money was increased by the Supreme Court’s controversial decision in Citizens United v. FEC, which ruled that campaign contributions by nonprofit corporations (later extended to for-profit corporations and labor unions) were protected by the First Amendment. Among its findings: Spending by Super PACs and other outside groups doubled between the 2010 and 2014 midterm elections, PACs have spent more money in competitive races than the candidates themselves or the political parties, and more than $600 million of the more than $1 billion contributed to super PACs came from 195 individuals and their spouses — more than 60 percent of the total.

3. We gerrymander our legislative districts.

This practice is practically as old as America itself. Named after Vice President Elbridge Gerry, Gerrymandering is a process in which congressional districts are redrawn by the party in power to give it an unfair advantage in future elections. For instance, although President Obama’s reelection in 2012 helped Democratic congressional candidates win 1.4 million votes more than their Republican opponents, Republican gerrymandering after the 2010 census and midterm elections allowed them to maintain a 33-seat advantage in the House of Representatives. Even worse, there is a movement afoot to extend gerrymandering to presidential elections through various plans to only give the winner of a state’s popular vote two electoral college votes, with the rest being divided up by congressional district. This system is already in place in Maine and Nebraska. And speaking of the Electoral College…

4. The Electoral College diminishes the value of the popular vote.

When you vote in a presidential election, you aren’t actually selecting a presidential candidate, but rather for a slate of electors in the Electoral College. There are many disadvantages to the Electoral College system, including the possibility that it will elect a candidate who didn’t win the most popular votes (which has already happened four times, most recently in the 2000 presidential election between Al Gore and George W. Bush), disproportionately increasing the importance of “swing states” (i.e., states with large allocations of electoral votes that could vote either Democrat or Republican), and allowing presidential candidates to ignore states that are either solidly for one particular party or too small to be politically valuable. Finally…

5. Our two-party system has encouraged divisiveness and gridlock.

According to a Pew Research Center study conducted last year, Americans are more divided by ideological lines — and those ideologies correspond more closely to their partisan affiliation — than at any other time in the last two decades. “The overall share of Americans who express consistently conservative or consistently liberal opinions has doubled over the past two decades from 10% to 21%, and ideological thinking is now much more closely aligned with partisanship than in the past,” the study reported. “As a result, ideological overlap between the two parties has diminished: Today, 92% of Republicans are to the right of the median Democrat, and 94% of Democrats are to the left of the median Republican.” This goes a long way toward explaining the constant gridlock between the two parties — although most Americans would prefer bipartisanship, the ideological extremes within the Democratic and Republican organizations have disproportionate power in the nominating process and wind up forcing elected officials to eschew compromise.

The Sandra Bland lawsuit is a reminder that our criminal justice system is broken

Published: Daily Dot (August 6, 2015)

Sandra Bland’s family is looking for answers—following the 28-year-old’s untimely and mysterious death in a Texas jail cell—and they believe a lawsuit is their last best hope. While they believe it’s “possible” Bland took her own life, the family filed a federal suit this week to help provide closure in the case that’s taken social media by storm.

However, they aren’t the first to pursue a civil case against a city’s police department after alleged racial profiling—and, alas, they likely won’t be the last. It is a troubling commentary on the American criminal court system that our civil courts, rather than criminal courts, are so often the last recourse through which victims of racial profiling can seek justice.

This particular trend has a long and tragic history. Earlier this year, the family of Eric Garner—who was killed by an NYPD officer using an illegal chokehold—filed a lawsuit that focused on the disciplinary history of the cop responsible for Garner’s death. (They settled for $5.9 million.) Meanwhile, the family of Michael Brown, who was gunned down by a police officer in Ferguson, Missouri last year, has filed a suit claiming that the city fostered a culture of racial hostility that culminated in the 18-year-old’s death.

Going back further, one can see lawsuits being effectively used in cases ranging from Rodney King, who was awarded $3.8 million after a video tape was released showing him being viciously beaten by members of the LAPD in 1991, to Amadou Diallo, whose family received $3 million after the NYPD in 1999 shot him to death despite the fact that he was unarmed.

In the case of Bland’s family, their wrongful death suit is focusing on the sheriff’s office of Waller County, Texas; the state trooper who made the stop; and the two jail guards who oversaw her jailhouse stay. Bland’s story made headlines after she was pulled over for switching lanes without signaling, arrested for being “combative and uncooperative,” and was later found dead after being left in her jail cell for several days from an alleged suicide. Whether or not she took her own life, Bland’s mother insisted during a press conference that “the bottom line is she never should have been inside the jail cell. Period.”

It is a troubling commentary on the American criminal court system that our civil courts, rather than criminal courts, are so often the last recourse through which victims of racial profiling can seek justice.

This lawsuit, like the many that have preceded it, is an attempt to get justice for those who were denied it through traditional criminal proceedings—and in many ways, our civil courts are ideally suited for doing that.

Whereas the criminal justice system demands that defendants be proven guilty “beyond a reasonable doubt,” civil cases only require that an offender or third party be found liable for the injuries sustained by a victim or his/her survivors as the result of a crime. Even if the jury voted “not guilty” during a criminal trial, the burden for a civil case is so much lesser (i.e., the plaintiff only needs to prove that there is a 51 percent or greater chance that the defendant was responsible for the wrongs inflicted) that those same defendants can still be held liable during a civil trial.

Unfortunately, using the civil rather than criminal justice system to do this can be expensive. According to an article by the Huffington Post in May, over the last decade or so successful lawsuits against city police departments have cost taxpayers hundreds of millions, including $36 million in Boston, $521 million in Chicago, $8.2 million in Cleveland, $6.6 million in Dallas, $12 million in Denver, $101 million in Los Angeles, $9.3 million in Minneapolis, $348 million in New York City, $40 million in Philadelphia, and $74 million in Oakland, Calif.

“In theory, the cost of these lawsuits—which are of course ultimately paid by taxpayers—are supposed to inspire better oversight, better government, and better policing,” wrote Radley Balko of the Washington Post. “I’m not sure how effective that is. I’ve seen little evidence that people generally vote on these issues, even in municipal elections. (The last mayoral race in New York may be one exception.)” As some pundits have pointed out, it would be far less expensive in many of these cities to simply subsidize body cameras for police officers.

In addition to the financial price tag, there is also a considerable social cost to the use of lawsuits instead of criminal cases against officers who racially profile. “In many instances, an attorney representing a police abuse victim will instruct him or her not to file a complaint with citizen review agencies or internal affairs units for fear of making a statement that may be unhelpful in pursuing the civil case or in defending the client if criminal charges are pending against him or her,” explains Human Rights Watch.

As a result, many of the strongest racial profiling cases are never investigated (either internally or by third-party government agencies) because no formal complaint was ever filed. The attorneys, though theoretically bound to provide their clients with the best overall legal advice, will frequently only give them the information that is most likely to help them win their civil case, regardless of its broader implications.

This brings us to the final major problem with the proliferation of civil lawsuits in racial profiling cases—namely, the fact that they do little to discourage corrupt officers from continuing to abuse their power in the future. After all, police officers who are found liable are rarely forced to pay anything themselves in the settlement (smaller departments are often insured and larger ones have funds set aside for exactly this situation) or suffer some kind of internal discipline for their misconduct.

There is also a considerable social cost to the use of lawsuits instead of criminal cases against officers who racially profile.

As a result, there is a lack of the kind of direct personal accountability that does exist for cops who actually face criminal charges for their actions. Indeed, because civil rights lawsuits are incredibly complicated to pursue, it is entirely possible that many cops who abuse their power will never be held accountable in any form.

That, to paraphrase Bland’s mother, is truly the bottom line here. If Americans truly want to put a stop to racial profiling, they will work for a justice system that demands full accountability for its police officers. The goal here isn’t to demonize our law enforcement personnel, but rather to make sure that only the men and women who use their power responsibly can continue to wield it.

So long as our court system continues to allow the individual cops who violate the civil rights of non-white Americans off the hook—first by failing to convict them in criminal court and then by forcing taxpayers to foot the bill in civil cases—there is no reason to believe that the bad apples will be removed from the cart or forced to change.

 

Photo via Dorret/Flickr (C BY 2.0) | Remix by Max Fleishman

Debunking the 3 biggest myths about the death penalty

Published: Daily Dot (July 6, 2015), Salon (July 8, 2015)

After the Supreme Court issued a 5-to-4 ruling upholding the use of a lethal injection drug for death penalty cases last week, Justice Breyer’s dissent has lit up the Internet. In his opposition, Breyer not only opposes the controversial use of midazolam, a drug that’s been criticized as “cruel and unusual punishment,” but also condemns the death penalty altogether. His argument that the United States must rethink its stance on capital punishment.

However, Justice Antonin Scalia’s majority opinion highlighted the difficulties in opposing the death penalty, as the debate on the issue continues to be riddled with misinformation. As the United States continues to be one of the top five nations with the most executions in the world, challenging these myths won’t just create necessary policy change—it’ll save lives.

1) The death penalty helps stop crime

In his opinion on the recent capital punishment case Glossip v. Gross, Scalia argued that “the suggestion that the incremental deterrent effect of capital punishment does not seem ‘significant’ reflects, it seems to me, a let-them-eat cake obliviousness to the needs of others.” It reflects an old argument: that the death penalty is necessary because it scares criminals into abiding by the law.

Yet a 2009 study published in the Journal of Criminal Law and Criminology revealed that 88 percent of the country’s top criminologists don’t believe the death penalty acts as a deterrent to homicides, 87 percent believe abolishing it won’t have any effect on murder rates, and 75 percent agree that “debates about the death penalty distract Congress and state legislatures from focusing on real crime solutions to crime problems.”

“We’re very hard pressed to find really strong evidence of deterrence,” explained Jeffrey Fagan, a student at Columbia Law School. When Fagan and two other researchers collaborated to compare crime rates in Hong Kong and Singapore—the former which abolished the death penalty in 1993 and the latter which uses it as mandatory for murder—they found little difference in violent crime rates between the two cities.

A similar study by Professors John J. Donohue of Yale Law School and Justin Wolfers of the University of Pennsylvania compared rates of violence between states that used capital punishment and those which had abolished it and also failed to find any evidence of a deterrent effect.

2) Anti-death penalty activists are just protecting a bunch of killers

Back when he was governor of California, Ronald Reagan once explained to a group of reporters that he had told opponents of capital punishment, “If you toll your bells every time somebody is murdered, I won’t mind if you do it every time the state executes a killer.” The erroneous implication, of course, was that anti-death penalty activists care more about criminals than their victims and, for that matter, that all of the inmates on death row are guilty criminals.

As director of the ACLU Cassandra Stubbs wrote for MSNBC, there is good reason to suspect that many of the people put to death in this country have not been killers at all. Indeed, one of those men was cited by Scalia in an earlier legal case as proof of the need for capital punishment:

Henry McCollum was convicted and sentenced to death in North Carolina for the murder and rape of a young girl… McCollum was exonerated in 2014… But in 1986, two years after McCollum was convicted and sentenced, Justice Antonin Scalia held him up in a separate Supreme Court decision as the kind of person who demonstrates the need for the death penalty.

McCollum is hardly an isolated case. One paper published in Proceedings of the National Academy of Sciences by Samuel R. Gross of the University of Michigan and Barbara O’Brien of Michigan State University found that at least four percent of people who get sentenced to death would ultimately be exonerated if their cases were closely examined over the next 21 years. That said, the ultimate number of people sent to die for crimes they didn’t commit is, in Gross’s own words, “not merely unknown but unknowable.”

Of course, considering that more than 150 prisoners on death row have been exonerated since 1973, the number is potentially staggering.

3) Lethal injection isn’t cruel and unusual punishment

Although Justice Samuel Alito’s opinion in Glossip v. Gross argued that “the District Court did not establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain,” there is plenty of evidence to the contrary.

The creator of the three-drug cocktail used in lethal injections today, Dr. Jay Chapman, told CNN in 2007 that it is cruel and unusual, that the guillotine would actually be more humane (“The person’s head is cut off and that’s the end of it”), and observing that “we kill animals more humanely than we kill people.”

Recent events have reinforced Dr. Chapman’s reservations, including three high-profile cases in 2014: Dennis McGuire of Ohio, who took nearly 25 minutes to die after choking and struggling throughout the procedure; Clayton Lockett of Oklahoma, whose execution was halted 20 minutes into the procedure due to an issue with his vein, began writhing on the gurney, and took 43 minutes in total to die; and Joseph Wood of Arizona, who gasped and snorted for nearly two hours before his lethal injection finally ended his life.

Despite these developments, lethal injection remains the most common form of execution used in the United States, with over 1,000 prisoners in this country meeting their end through that method since it was first implemented in 1982.

Although a growing number of states have moved to ban capital punishment, the best hope for ending the death penalty lies in spreading awareness of the issue to the general public. In the wake of the SCOTUS decision on lethal injection, the Internet is starting an overdue discussion on America’s culture of death. Last week’s decision may have been a setback, but the future of the issue depends the information age finally setting the record straight.

You Don’t Have To Like #MarriageEquality to See That It’s Right

Published: Good Men Project (June 27, 2015)

Matt Rozsa dismisses the top three arguments against #MarriageEquality so everyone can embrace the change.

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Now that the Supreme Court has ruled that same-sex couples throughout America have the right to get married, it’s time to confront the inevitable backlash that has already begun to erupt: From homophobes complaining that their civil liberties are being curbed in the media to pseudo-scientists who insist same-sex marriage is bad for children, there are plenty of people out there who refuse to see the light on this issue.
Here is a convenient listicle to deal with them:
1. The so-called “science” opposing gay marriage is bunk.
Back in 2012, a conservative think tank known as the Heritage Foundation paid $785,000 to an anti-LGBT sociologist named Dr. Mark Regnerus. Why? Because, according to their own mission statement, they desperately needed to produce a study that would “back up claims that same-sex marriage is actually bad for the family.”
This reminds me of a quote from the famous Sherlock Holmes story “A Scandal in Bohemia,” reproduced below:
“It is a capital mistake to theorize before you have all the evidence. It biases the judgment.”
Of course, the difference between the detectives in a Sir Arthur Conan Doyle mystery and the propagandists at the Heritage Foundation is that the former were only dealing with innocent errors in judgment; the latter, on the other hand, made a deliberate effort to deprive innocent men and women of their basic rights. Even though the overwhelming majority of research has found that gay parents are no less qualified to raise children than their heterosexual counterparts, the Heritage Foundation decided to validate the prejudices of its supporters by handsomely rewarding any scholar unscrupulous enough to use pseudo-science as a substitute for the actual thing.
The chief lesson here: If you can’t win an argument without cheating, you deserve to lose.
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2. It is absurd to claim that same-sex marriage threatens “traditional” unions.
Frankly, I’ve never understood this one. Whenever I discuss the issue of gay marriage with conservative friends, I usually hear some variation of the argument, “If homosexuals are allowed to marry, it will ruin marriage for everyone else!”
Um …. How exactly? How exactly will a marriage in the post-Obergefell v. Hodges era be any different from the unions that occurred before it? The closest equivalent to a straightforward answer has come from the State of Mississippi, which is threatening to pull all state-issued marriage licenses in the aftermath of the Supreme Court’s recent decision. Their position seems to be that, by taking the state out of the institution of marriage altogether and leaving it entirely to the churches, it will allow Mississippians whose religious beliefs lead them to oppose same-sex unions to avoid having to implicitly support them.
On the one hand, I actually see a little merit in this argument. If we’re going to treat marriage as a fundamentally religious ritual, then it seems fine for the state to stay out of the matter altogether. Of course, this won’t actually prevent gay marriages from happening (plenty of churches and synagogues are willing to wed same-sex couples), but it will comfort those who feel their religious beliefs are being disrespected by the actions of Kennedy et al. Then again, if other conservative states follow in Mississippi’s lead, the traditional state-sponsored institution of marriage will have been changed as a result of their actions, not that of those homosexuals who choose to get married. Throughout American history, marriage has been as much a secular institution as it has been a religious one, which is why any pair of consenting opposite-sex adults have been able to go to local government institutions and declare themselves to be in wedlock. Simply extending that right to same-sex adults doesn’t change the experience of opposite-sex couples; revoking state-sponsored marriages, meanwhile, absolutely does.

Everyone has the right to their prejudices, but they shouldn’t be shielded from the fact that those views are prejudiced, and they definitely shouldn’t be allowed to demean those who are targeted by their prejudiced by denying them the same rights guaranteed to all other citizens.

3. If you believe in freedom, then you have to acknowledge this right.
Much has already been written about Justice Anthony Kennedy’s heroism in breaking from the Supreme Court’s conservative majority to grant marriage rights to same-sex couples (including by me), so I was reluctant to quote him again for this article. Then again, as I searched for the language to explain how opposing marriage equality is always an intolerant position, I could find no better way of expressing that thought then by returning to the judge’s immortal language:
Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.
That, as they say, is the bottom line. You can personally believe that same-sex marriage is wrong, choose to only attend churches that refuse to perform that ceremony, and even refuse to endorse it through your business (as Patrick Stewart pointed out when he defended a Christian bakery’s decision to not bake a cake with a pro-gay marriage message). At the same time, when you argue that the American state should actively prevent same-sex couples from getting married, you aren’t simply expressing your personal religious or philosophical opinion; you are demanding that that point-of-view be imposed on those who don’t agree with it. Everyone has the right to their prejudices, but they shouldn’t be shielded from the fact that those views are prejudiced, and they definitely shouldn’t be allowed to demean those who are targeted by their prejudiced by denying them the same rights guaranteed to all other citizens.
And that, ladies and gentlemen, is why good people support #MarriageEquality.