The world has already seen more than its fair share of natural disasters in 2010. From the earthquake in Haiti to the floods in Pakistan, our hearts and our resources have gone out to those in distress. Yesterday, however, the nation turned its attention back home to New Orleans as we remembered Hurricane Katrina. It has been five years since Hurricane Katrina battered the Gulf Coast, a region once again struck by catastrophe as it struggles to cope with the largest oil spill in history.
Hurricane Katrina slammed into the Gulf Coast on August 29, 2005. 1,836 people were killed during the storm and subsequent flooding in New Orleans, where the levee system collapsed, and property damage totaled $81 billion. The government’s response, or lack of response in the days immediately following the disaster, combined with the exposure of a level of poverty thought to be absent from such an affluent nation as the United States led the media to label this event our “National Shame.” As we looked back at the heartbreak and destruction, it was our sincere hope that those bearing the brunt of the region’s economic impact would have been able to gain access to the resources needed to rebuild their lives after their devastating losses. Sadly, this hope has not been realized.
Following Hurricane Katrina, the federal government allocated $11 billion for the “Road Home” program to provide grants to Louisiana homeowners whose homes were destroyed or damaged by the storm. Although the Road Home program was touted as a way to get residents back into their homes and back into the region, it has done little for those most in need. The formula used to calculate grant amounts has failed to provide low income homeowners, who are mostly African-American, with the funds needed to rebuild or repair their homes and the process has only served to exacerbate socio-economic disparities in the region.
In November 2008, advocates and a group of homeowners challenged the grant making process, claiming that it was discriminatory because it disproportionately affected African-Americans. Two weeks ago, the NAACP Legal Defense and Educational Fund (LDF) won a victory in the courts on this very issue. In coordination with the Greater New Orleans Fair Housing Action Center, the National Fair Housing Alliance, and individual homeowners representing others who were unable to obtain sufficient grant funds to rebuild under the current system, LDF successfully pressed a district court in Washington, DC to halt any further grant awards based on this formula. Hopefully, this victory will lead to future grant awards that will enable lower income homeowners to rebuild and return home.
Five years after Katrina, as the consequences of the recent oil spill unfold and legal claims against BP begin to take shape, let us once again remember to keep the Gulf region in our minds -- and hope that the court system will remain an instrument of justice and equal opportunity for all.
(Photo by Euclid vanderKroew.)
By Paula Z. Segal
This past March, the Supreme Court decided a case against an African-American man convicted of second-degree murder and possession of a firearm by an all-white jury in Kent Country, Michigan in 1993. The defendant, Diapolis Smith, challenged his conviction. He objected to the composition of the jury that found him guilty, arguing that the jury selection process unfairly eliminated African-Americans from the jury pool in violation of the U.S. Constitution.
The “fair cross-section requirement” that the Supreme Court has read into the Sixth Amendment to the U.S. Constitution for over half a century requires that all groups in a local population be fairly represented in the pool from which a jury is drawn. Mr. Smith asserted that the jury selection process used in his case deprived him of his Sixth Amendment guarantee to a jury drawn from a representative cross section of the community. The Supreme Court, in a unanimous opinion by Justice Ginsburg, decided that Mr. Smith’s “fair cross section” claim was without merit: The court held that the Kent County process did not systematically result in under-representation of African-Americans in the jury pool. But, Justice Clarence Thomas felt compelled to write a concurring opinion and question whether the “fair cross-section requirement” is really part of the “Sixth Amendment’s text and history.” Thereby, using this case to raise an issue that has grave implications for future defendants, jurors and the future of the jury pool’s role in the democratic process.
In a short opinion, Justice Thomas pointed out that “historically, juries did not include a sampling of persons from all levels of society or even from both sexes,” as a reason why the fair cross-section requirement should not be read into the Constitution. He did not, however, point out other historically acceptable practices -- a legalized slave trade, disenfranchisement for women, strict limits on property ownership -- that might provide a reason why the requirement is needed. Thomas concluded his opinion by saying that “in an appropriate case, [he] would be willing to reconsider our precedents articulating the ‘fair cross section’ requirement,” threatening to undo over 60 years of development towards a more fair and democratic legal system.
The “fair cross section’ requirement has a long history. In its text, the Sixth Amendment of the United States Constitution guarantees all criminal defendants “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” The “fair cross section requirement” is the measure that the Supreme Court has articulated for determining whether a jury is “impartial.” The first time the Supreme Court used this measure was in a 1946 criminal case in which the defendant challenged the exclusion of women from the criminal jury pool. That same year, in a civil case also challenging the systemic exclusion of women, the Court explained that;The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.
In 1975, the Supreme Court further explained the importance of the “fair cross-section” requirement by saying;
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power-to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.
Justice Thomas’s concurring opinion clearly elucidates that he does not believe that the American tradition of trial by jury necessarily contemplates a jury drawn from a cross-section of the community. In questioning the foundation of the requirement itself, Justice Thomas suggests that he would undo the expansion of enfranchisement and access to the institutions of the democratic state that has occurred in the last 64 years. Justice Thomas seems to believe that a jury that systematically excludes women, or the landless, is fair and “democratic” and satisfies the requirement that a jury be impartial. His insistence suggests that he would be content with an American “democracy” that includes as its constituents only the original “We the people” -- white, propertied men.
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 JasonUnbound.)
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.)
By Richael Faithful
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.)
THE GOOD
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 BAD
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 UGLY
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.)
By Richael Faithful
Today, President Obama announced the nomination of Elena Kagan to the Supreme Court. For the past few weeks, legal and political commentators have speculated widely about the President's prospective Court choices, potential procedural barriers facing judicial nominees, and have already been debating the candidate's pros and cons. Justice Stevens’ replacement -- the President’s second Supreme Court nomination during his short tenure -- is certainly significant. Recent Court decisions on corporate campaign spending, DNA evidence in criminal cases, and federal government voters’ rights enforcement, demonstrate the Roberts Court’s hostility toward core civil rights principles. Many insist that a new Supreme Court Justice must be an individual who will maintain some ideological balance in the Court, blocking Justice Roberts’ assault on constitutional protections.
However, it can be argued that the nomination process itself, as it currently exists, impedes civil rights progress in the United States.The system of checks and balances serves as a procedural safeguard against executive branch abuse, however, the current nomination and confirmation process has negative implications for civil rights. Courageous Senators, advocates, and members of the general public must push the President to choose a nominee with a solid civil rights record and a strong voice on the issues that affect us all. Senators must delve into the nominee’s judicial record to ask pointed, non-partisan questions about their rationales. In doing so, they can more forcefully challenge those who insist on portraying civil rights as a “special interest” legacy that is longer necessary, while re-introducing congeniality and restoring professionalism and integrity to the confirmation process. Most importantly, Senators must be independent -- they must refuse to support nominees who are soft on civil rights regardless of party affiliation. Values-based tenacity is the true character of the modern civil rights movement. Now, we just need congressional leaders who exemplify that character.
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 dsearls.)
