The Supreme Court recently agreed to hear the case Virginia Office for Protection and Advocacy v. Reinhard (“VOPA v. Reinhard”). This lawsuit concerns whether a state agency responsible for advocating on behalf of people with disabilities may sue another state entity to obtain for information about possible abuse and neglect of people with disabilities.
The protection and advocacy (“P&A”) system came into existence in the 1970s after Geraldo Rivera brought cameras into Willowbrook State School in New York, where adults and children with developmental disabilities were isolated, segregated, and subjected to horrifyingly inhumane conditions in overcrowded, understaffed facilities. It also turned out that people with disabilities were segregated and deprived of basic rights in institutions across the country. As a result, Congress decided to allocate money to the states to designate an agency that would ensure that the rights of people with disabilities would never again be violated in this way. States may choose whether to establish these P&A agencies as either an independent state agency, or a private not-for-profit. Whichever they choose, P&As are critical to ensuring the enforcement of the ADA. In Virginia, the governor designated the Virginia P&A (VOPA) to advocate on behalf of people with disabilities, a state agency.
In 2006, three residents in state-run facilities died or were injured while in the custody of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (the “Department of Mental Health,” now called the Department of Behavioral Health and Developmental Services). The VOPA opened an investigation into these deaths and tried to gain access to records about injuries and deaths at state institutions. When the Department of Mental Health refused to provide the records needed to complete the investigation, the VOPA sued the head of the Department of Mental Health to obtain the records. A federal appeals court dismissed the lawsuit, saying that the P&A agency couldn’t enforce the right to get access to information based on the theory that the Department of Mental Health couldn’t be sued by another state agency. Another Court of Appeals, in another part of the country, came to the exact opposite conclusion, deciding that state agencies may sue other state agencies in federal court. This second court recognized the important function the P&A system serves in protecting people with disabilities and the need to prevent state hospitals and institutions from shielding themselves from investigation and oversight.
The split in opinion between the two courts of appeals regarding whether state agencies may sue other state agencies to gain access to information is an important issue for the Supreme Court to resolve. The outcome of this case will seriously impact whether state agencies designated to protect the rights of people with disabilities can actually accomplish their mandate. In this case, without access to the requested information, the Virginia P&A agency found itself unable to complete its investigation and determine how the deaths and injuries in question had occurred. As a practical matter, if a state can protect itself from scrutiny by an agency created to ensure that certain rights and protections are provided by simply classifying the P&A as a state entity, then this will effectively block the P&A’s ability to oversee and enforce rights and protections. Access to information is a crucial part of any investigation and without access to records at state-run facilities the P&A systems will have a much harder, if not impossible, time doing their jobs. Consider this: In New York, the home state of Willowbrook, the P&A that conducts investigations into abuse and neglect is a public agency and a ruling against the VOPA’s right to go to court could seriously undermine its effectiveness. Wouldn’t that be an ironic and sad conclusion to the story that began with Willowbrook?
(Photo by Elephi Pelephi.)
In the past year, NCRCR has focused on a few cases related to the disparate impact of felony disenfranchisement on African American men, as well as other people of color. We’ve also highlighted Ashcroft v. Iqbal, in which a Pakistani-American cable installer who was detained on suspicion of terrorism and held under inhumane conditions tried to hold senior government officials accountable for his wrongful arrest, only to have the Supreme Court dismiss his claims while significantly altering the standard for what people have to show just to get their civil cases into court.
Meanwhile, the NAACP Legal Defense and Educational Fund, Inc. (LDF) has been leading efforts in the court system to ensure that everyone can exercise the right to vote. The numbers around the disenfranchisement of people with felony convictions and race are astonishing, both at a national and a local level:
Appalling as the data may be, countless hurdles still stand in the way of securing people the right to vote. In a case called Hayden v. Paterson, a collection of plaintiffs sued the governor of New York in order to challenge the state’s felon disenfranchisement law (enacted in the early 1800s) on grounds that it violates the 14th Amendment, which guarantees equal protection under the law to all people. In a ruling earlier this year, however, a federal appeals court found that the plaintiffs’ claims in Hayden did not satisfy the new standards adopted in Iqbal for what people need to show to get into court (otherwise known as the pleading standards). Attorneys for the plaintiffs are already back at the drawing board to see what else can be done – but the effect of Iqbal on the felony disenfranchisement case is a strong reminder of how much of an impact rulings about things like the pleadings standard can have for years to come.
While the weight of all societal injustice does not entirely rest on the court system, the judiciary must stop making it more and more difficult to enforce our hard-earned civil rights -- or even simply to access our fundamental right to vote.
(Photo by Still Burning.)
The Supreme Court once said, “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”
Earlier this year, in Citizens United v. Federal Election Commission, the Court made clear that, according to its way of thinking, “people” includes “corporations.” Previous decisions by the Court suggested that limits on corporate financial contributions served the important purpose of preventing corruption in elections. Now, though, the Court distinction between money given directly to candidates’ campaigns and independent expenditures on advertising or, in this case, a movie, that took a position on a candidate. The Court reasoned that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” and concluded that the First Amendment does not allow the government to limit independent expenditures under most circumstances.
As the Supreme Court term ends, it’s timely to look back on one of the key decisions of the year. Some critics of the decision have said that it will undermine democracy by giving corporations unprecedented power; supporters say that it supports free speech. Six months after the Citizens United ruling, we are beginning to see signs of how significant this decision really is.
In Citizens United, the Supreme Court expanded the protection of the First Amendment to corporations that spend money in elections, as long as that money was not a direct contribution to a candidate’s campaign. Corporate spending on behalf of a candidate can no longer be limited in the interests of reducing corruption or the appearance of corruption. This expanded zone of protection offered by the First Amendment restricts laws passed by federal, state and local governments that were intended precisely to limit corporate involvement. Since the Citizens United decision, state courts and officials around the country have invalidated state statutes passed earlier with the intention of creating a buffer zone between business and government.
The Tennessee legislature passed a statute in 1972 that has prohibited use of any corporate funds in any elections. After Citizens United, Tennessee’s Attorney General concluded that the statute was unconstitutional and invalid. According to the Attorney General, corporate funds are now allowed in Tennessee elections as long as they are “independent expenditures,” not direct contributions to a candidate. The Attorney General’s ruling is based entirely on the Supreme Court decision in Citizens United; there was no need for the legislature to revisit the statute. The statute can no longer be enforced because its enforcement would violate the First Amendment as newly interpreted. The 2010 election cycle will be the first time in 38 years that corporate funds will be allowed in Tennessee campaigns.
The Ohio legislature passed a “revolving door statute” in 2005 with the explicit intention of preventing unethical practices by public employees and public officials and to promote, maintain, and bolster the public's confidence in the integrity of state government. The statute prohibited uncompensated lobbying by former members of the Ohio legislature for a year after leaving the assembly. The legislature was also concerned with unequal access to the legislature by outside organizations and concluded that a year waiting period would reduce the effect of such access. The federal district court concluded that the revolving door statute violated the First Amendment after Citizens United. Now, former members of the Ohio legislature can become lobbyists for corporate interests the day after leaving office. They no longer need to wait a year.
In 2002, the people of Colorado amended their state constitution to limit corporate influence in state elections. The 2002 amendments included a provision that made it unlawful for a corporation or labor organization to make expenditures expressly advocating the election or defeat of a candidate and a separate provision that made it unlawful for a corporation or a labor organization to provide funding for an electioneering communication. When asked by Governor Ritter to consider whether these provisions are a violation of the First Amendment after Citizens United, the top court in Colorado concluded that they were. The impact of Citizens United in Colorado is that, despite the clearly expressed desire of the people of the state to protect Colorado’s electoral politics from corporate influence and the passage of amendments to the Colorado constitution, corporations and labor organizations now can spend money to advocate directly for or against a candidate, and to fund campaign communications directly.
Sections of the San Diego Municipal Election Campaign Control Ordinance prohibited election spending by any entity that is not an individual person, imposed a $500 cap on spending by a single entity, and limited spending by candidates on their own behalf to 12 months or more before election day. A federal court in California concluded that those sections cannot be enforced after Citizens United because they violate the newly interpreted First Amendment. Now, corporate entities can spend money to influence San Diego elections; they can spend an unrestricted amount of money. Candidates can also spend their own money to campaign right up until the day of the election.
Whatever you think of the Citizens United ruling, it is important. The examples above serve to illustrate the domino effect such a decision can have on state and local policies throughout the country.
Paula Z. Segal is a second year student at City University of New York
School of Law and a Haywood Burns Fellow in Civil and Human Rights.
Before law school, she taught English to Speakers of Other Languages
and continues to develop materials for ESOL instructors to connect
language and life skills. She is also working with the New York Civil
Liberties Union to reduce the school to prison pipeline and coordinates
the CUNY Street Law Team, which brings the law to New York City high
school students and community groups. For more on the school to prison
pipeline, go to http://www.nyclu.org/issues/
(Photo by PoliticalActivityLaw.com.)
During this Supreme Court term, the Roberts Court handed down yet another disappointing decision on Miranda rights. In Berghuis, Warden v. Thompkins, a 5-4 Court ruled that suspects who are in custody and being interrogated by the police must “unambiguously” invoke their right to remain silent by telling police that they wish to do so. The ruling has been criticized by legal analysts across the ideological spectrum as further tilting the police-suspect balance of power toward law enforcement. But the real disappointment behind the ruling is that it represents another loss for freedom.
Miranda warnings, popularized by television cop dramas, are not constitutional guarantees themselves, but are instead safeguards created by the Supreme Court in the 1966 case, Miranda v. Arizona. "Miranda rights" —the right to remain silent, the right to know that a statement may be used against a suspect in court, and the right to counsel or the provision of one for the suspect—protect Fifth and Sixth Amendment rights against self-incrimination and to legal counsel, respectively. Because Miranda warnings are court-created rights, they are also rights that courts can diminish. Indeed, as the Supreme Court has trended to the political right since the 1960s, it has rolled back various aspects of the Miranda ruling though never eliminated the rights themselves.
Then, what is the meaning of the Thompkins decision? I think that it may not be particularly important in the shrinking Miranda rights universe, but it is a drop in the spilling bucket of court cases and other governmental actions that show continued support for a growing police state, increasingly harsh criminal penalties, and excessive zero-tolerance policies. The Thompkins ruling manifests another element to the criminalization trend—a hard philosophical shift away from a presumption of innocence to one of guilt.
The Thompkins dissent, written by former prosecutor Justice Sotomayor, speaks to two important points regarding the majority’s counter-intuitive “upside down” logic. First, the opinion suggests that the benefit of any doubt should be reserved for the protection of the individual’s rights. In other words, suspects who fail to invoke their right to remain silent clearly should still be entitled to their right because they still have not “knowingly and intelligently” waived it. The dissent raises this issue because whether a suspect must affirmatively waive a right or whether a right is automatically waived because a suspect fails to invoke a right is a technical though highly contentious issue that has been debated in Miranda progeny cases over the years between court liberals and conservatives. Yet shifting the burden from police to suspect, so obviously undermines the spirit of the Miranda decision, it undermines the right altogether. The reason that requiring suspects to “unambiguously” invoke their right to remain silent sounds so benign is because attitudes toward individuals under custodial interrogation have changed—we assume that only shady characters are arrested, and that innocent people “have nothing to hide.” We ignore that certain people are most likely to be arrested, and that most people need lawyers to navigate an “inherently coercive” criminal system. It is these foundational values that shaped the Miranda decision so that silence and un-cooperativeness sent a clear message—“I have invoked my right to remain silent, and the interrogation is over.”
In addition, the dissenting opinion criticizes the majority for skimming over key facts about the conditions under which Thompkins was interrogated until his one-word acknowledgment that eventually led to his conviction. Thompkins was confined by police in an eight by ten foot room for interrogation. Beside a few short responses to administrative questions, mostly consisting of “yes” and “no” replies, he did not respond to repeated invitations by police to offer information or confess to the crime. Finally, after nearly three hours, an officer asked him whether he believed in God, to which he replied “yes” in near-tears. Then, he was asked whether he prayed to God for the shooting, to which he simply replied, “Yes.”
He refused to sign a written confession and, during trial, testimony from another person at the scene of the crime indicated that Thompkins was not the shooter. One word uttered by Thompkins under very dubious circumstances led to his conviction. His refusal to cooperate with police was a clear message but it was a message that was ignored by police. As this case suggests, a suspect’s engagement with police during an interrogation, without counsel, is an invitation for police abuse.
The downside of shirking Miranda rights is that a person who becomes a suspect will be left without the benefit of full constitutional protections at the time when she or he needs it the most. Altogether, the Roberts Court has held that suspects must tell police that they wish to invoke their right to remain silent; that suspects are not required to be told explicitly by police that they have a right to a lawyer; and that a suspect’s request for an attorney expires two weeks after being released from custody. Intensified pressure put onto police and prosecuting attorneys to be “tough on crime” is part of the trend in America toward criminalization -- one that is getting bigger and uglier when pitted against our precious, shrinking criminal constitutional safeguards.
The Thompkins ruling is undoubtedly bad but it is even much worse than we think.
Richael Faithful is a second-year student at American University
Washington College of Law. She is Editor-In-Chief of The Modern
American, a legal publication dedicated to diversity and the law. She
is also a former community organizer with the Virginia Organizing
Project. As a law student she continues organize and advocate for
radical, transformative change.
(Photo by Jonathan Caves.)
We touched upon the Lewis v. City of Chicago case in our March audio interview. Last month, the Supreme Court ruled unanimously in favor of the black firefighters seeking redress for racial discrimination in hiring. The case will be sent back to appeals court to be tried once again.The Supreme Court also ruled that teenagers may not be locked up for life without chance of parole if they haven't killed anyone. Of course, that any teenagers get life sentences in the United States is still astounding and unusual from an international perspective. It’s worth noting, though, that the juvenile offender case was a 5-4 ruling (written by Justice Kennedy), which serves as yet another reminder of how important the selection of the justices is in preserving basic rights.
The big news last week was the 5-4 ruling on “Miranda rights,” having to do with the right to remain silent when under arrest. Though NCRCR largely focuses on access to the courts to enforce anti-discrimination law, the rights of workers and our ability to protect the environment (among other things), this case is a big deal and serves as a reminder of the important role of the court system. The Supreme Court ruled that criminal suspects seeking to protect their right to remain silent must actually speak up in order to invoke it, redefining the court’s 1966 ruling in Miranda v. Arizona.Another 5-4 ruling in April further restricted fees that lawyers can receive under laws that were intended to encourage attorneys to take on civil rights cases. Though many people may not be so interested in the issue of attorneys' fees, the question whether attorneys can receive payment when they take on civil rights cases is an important one. Clients in these cases are often low-income and thus cannot pay for legal services. The way the law is structured, when people who are discriminated against win their case, they’re entitled to fees, so that the lawyers can get paid something for their work and so there will be an incentive for lawyers to take these cases in the future, which helps to ensure that the law is enforced and benefits us all. Perdue v. Kenny A. dealt with how judges should determine how much the losing side has to pay. Though the Court didn’t rule out the possibility that attorneys might be recognized for extraordinary work, they set the standard so high that it’s hard to see what might qualify. (In this case, the judge increased fees in light of the fact that, as he put it, it was the best performance he had seen in his 28 years on the bench. This apparently wasn’t good enough to meet the Court’s new standard). Perdue is one of a number of cases over the last decade that raise questions about when the prevailing party is entitled to fees and how much they can get, cutting back on when lawyers can get an award (see Buckhannon, for example) and how much they can get.
The Supreme Court announced that visitors to its courthouse will no longer be allowed to enter through the front door. The New York Times describes this decision as “ripe with symbolism about access to justice in the age of terror.”
THE YET UNDETERMINED
In March, the Supreme Court heard a case challenging the way the government interprets immigration laws. The case involves a lawful permanent resident (with four children who are US citizens) who had been convicted of a misdemeanor for possession of marijuana and one Xanax pill. José Angel Carachuri-Rosendo was subsequently located and ordered to be deported on grounds that he “could have” been convicted of a felony. Kevin Johnson writes on the ACSblog that, “The U.S. government's tortured interpretation would have a devastating impact on immigrant communities, especially long-time residents with deep family and community ties to the United States.” We are awaiting a ruling.
Also still pending a decision is McDonald v. Chicago, a challenge to the authority of state and local governments to regulate individual possession of guns. Legally, the question is whether or not the right to bear arms, which the Court has recently ruled restricts the federal government’s latitude, also applies to state and local governments. It’s a tricky issue for people who have been fighting against gun control and, at the same time, argue for “strict constructionism” or a more “textual” reading of the Constitution, which has no explicit language suggesting that the states can’t regulate possession of guns. Invalidating the Chicago law at issue in the case would require a broad interpretation of the due process clause or other restrictions on states found in the 14th Amendment, something that “strict constructionists” have been staunchly against.
Stay tuned for more information and feel free to comment on which cases you think are most important!
(Photo by The Library of Congress.)
Every so often, a news story calls for the National Campaign to Restore Civil Rights (NCRCR) to acknowledge the value of our system of checks and balances and how important it is to the enforcement of the law. For example, this past month, a federal district court ordered Walthall County, Mississippi to eliminate policies that have resulted in racial segregation among the school district’s students. Judge Tom Lee ordered a small south Mississippi school district to stop allowing hundreds of white students to transfer out of largely black schools, calling the practice a violation of a 1970s desegregation order and federal law. As a result of student transfers, one school became racially identifiable as the ‘white school’ while student enrollment at the other schools had become predominately black. The judicial order calls for the current transfer policies to be reversed, and for the creation of specific guidelines under which student transfers must be approved.
The Department of Justice (DOJ), a federal agency under the executive branch of government, began investigating the Walthall County school district in 2007, and discovered the use of duplicate bus routes to transfer children to different schools. The measure cost the school district about $54,000 a year -- money that clearly should have been spent on education. In addition, the school district allegedly grouped students in individual schools, creating a disproportionate number of white students in certain elementary level classrooms. This resulted in “large numbers of all-black classes at every grade level in those schools.”
Given that the Walthall County School Board had ignored previous directives to stop segregating its schools, the Justice Department called upon the federal court system to remedy the situation, proposing a consent decree to reverse the school board's practices. Thomas Perez, the assistant attorney general in charge of the Justice Department's Civil Rights Division said, "More than 55 years after Brown v. Board of Education, it is unacceptable for school districts to act in a way that encourages or tolerates the resegregation of public schools. We will take action so that school districts subject to federal desegregation orders comply with their obligation to eliminate vestiges of separate black and white schools."
Our country has a great set of laws aimed at creating a fair and just society, but laws alone do not justice make. Laws need to be enforced, and policies that overstep the mark need to be checked. Over the past decade, many have criticized the Department of Justice for its inaction and failure to fulfill its mission to “enforce the law and defend the interests of the United States according to the law” and to “ensure fair and impartial administration of justice for all Americans.” In this instance, though, the Department of Justice did its job, very well at that.
(Photo by Guerilla Futures | Jason Tester.)
Tricia Perry of the National Campaign to Restore Civil Rights spoke with Doug Kendall, Founder and President of the Constitutional Accountability Center, about recent legal challenges to health care reform. Listen in as Kendall talks about the concept of federalism and whether or not the new legislation is within the bounds of the US Constitution.
Tricia Perry of the National Campaign to Restore Civil Rights spoke with Josh Civin, Associate Counsel at the NAACP Legal Defense and Educational Fund, about the Lewis v. City of Chicago case involving racial discrimination in the hiring of firefighters. Listen in as Civin talks about the upcoming Supreme Court ruling that will decide if a district court's unappealed finding that an employer discriminated against over 6,000 African American job applicants can be dismissed on a procedural technicality about whether the applicants filed their lawsuit in time.