Wednesday January 30, 2019

#ChangeLawyer A growing chorus of prosecutors say no to marijuana convictions 

Baltimore has both the highest murder rate among the nation’s big cities and one of the most broken relationships between its police and its citizenry. Only one out of four homicides were solved last year. And the city’s enforcement of marijuana laws has fallen almost exclusively on African-Americans.

​Given this dire set of facts, the city’s top prosecutor announced on Tuesday that she would no longer bother with marijuana cases, a controversial move that she argued would improve police-community relations and allow law enforcement to devote more time to serious violent crime.

“If you ask that mom whose son was killed where she would rather us spend our time and our attention — on solving that murder, or prosecuting marijuana laws — it’s a no-brainer,” said Marilyn Mosby, the state’s attorney for Baltimore. She vowed at a news conference to no longer prosecute marijuana possession, regardless of quantity or prior criminal record, and said she would seek to vacate almost 5,000 convictions.

Ms. Mosby’s move places her in a vanguard of big-city prosecutors, including Kim Foxx in Chicago, Larry Krasner in Philadelphia, Cyrus R. Vance Jr. in Manhattan and Eric Gonzalez in Brooklyn, who are moving away from marijuana cases, declaring them largely off limits and in some cases going so far as to clear old warrants or convictions off the books.

Much of their reasoning sounds familiar from the many statewide campaigns that have resulted in outright legalization: Marijuana, they say, is not linked to violent crime. Enforcing its prohibition is a waste of resources, and has left thousands of people with criminal convictions that hinder their search for jobs and housing.

But increasingly, another argument is creeping in: Letting marijuana cases go actually makes communities safer, by shifting the focus to stopping violence and untangling a legacy of racial discrimination, allowing the seeds of trust to germinate in neighborhoods where a chief complaint of police officers is that no one will help them solve crimes.

“How are we going to expect folks to want to cooperate with us,” Ms. Mosby said in an interview in her office on Monday, “when you’re stopping, you’re frisking, you’re arresting folks for marijuana possession?”

Read the interview on NY Times >

More of This It’s time to end forced labor in immigrant detention

The following editorial was written by Victoria Law, author of “Resistance Behind Bars: The Struggle of Incarcerated Women.”

There are more than 48,000 people being held in immigrant detention in more than 200 facilities in the United States. More than two-thirds of them, according to the National Immigrant Justice Center, are confined by private companies, working on contracts with the federal government. Those numbers have ballooned in the last two years under the Trump administration, drawing new attention to the terrible conditions detainees are living in.

One feature of privately run centers — the Voluntary Work Program — is the subject of six separate lawsuits, which say that privately run immigrant detention centers are coercing detainees into working for a dollar a day and punishing those who don’t. The lawsuits demand, among other things, that the practice stop and that detained workers be paid minimum wage.

Congress should not wait for these lawsuits to be decided. Democrats have won the House, so even if they can’t stop the president’s anti-immigrant push, they can push to raise the obsolete and exploitative $1-a-day wage. And, just as they have rejected Mr. Trump’s request for $5.7 billion for the border wall, they should reject the request for $2.8 billion to expand detentions to 52,000 beds.

Prison labor is nearly as old as the American prison system itself, and it is protected by the 13th Amendment, which abolished slavery and indentured servitude except as punishment for a crime. This exception means that prisons can require their prisoners to work, even without compensation.

But immigrant detention is civil confinement, not criminal. People held in these facilities are not charged with any crime; they are being detained while awaiting asylum or deportation hearings. Under Immigration and Customs Enforcement’s Voluntary Work Program, however, immigrant detention centers need not pay workers more than one dollar a day, a rate set by Congress in 1950 and codified in the 1978 Appropriations Act. It has never been increased or adjusted for inflation.

Detainees say that the Voluntary Work Program is not really voluntary. If they attempt to take a day off or refuse to work, staff members punish them by withholding essential items, threatening to move them to more dangerous housing units or locking them in their cells. Wilhen Hill Barrientos, a Guatemalan asylum seeker and a plaintiff in the lawsuit against CoreCivic’s Stewart Detention Center in Georgia, said that he had to either work for a few cents an hour or go without basic things like soap, which he could get only through the commissary.

According to Mr. Barrientos’s lawsuit, one night a guard awakened him for the 2 a.m. shift in the kitchen rather than his scheduled 10 a.m. shift. When he refused, the guard threatened to move him to a violence-plagued dormitory, so Mr. Barrientos acquiesced.

Read the interview on NY Times >

Lawyers at the Border

Al Otro Lado is hiring a @ChangeLawyers fellow to help us protect asylum seekers’ rights on the border. Join us! https://t.co/OVTT66qQC1

— Al Otro Lado (@AlOtroLado_Org) January 30, 2019

Less of This Why are all these law firm partners white?

The post appeared on LinkedIn in early December: Paul, Weiss, one of the country’s most prominent and profitable law firms, said it was “pleased to announce” its new partner class.

In the image, 12 lawyers looked out at the world, grinning.

What followed, however, was nothing to smile about. In short order, people across the industry began to comment that all of the faces were white, and only one was a woman’s.

“I was literally looking on LinkedIn when I saw the picture and my mouth dropped open,” said Michelle Fang, chief legal officer of the peer-to-peer car-sharing company Turo.

Above the Law, a widely read industry website, archly mocked the firm’s “commitment to putting the white in white shoe.” A group of general counsels, the people who hire elite law firms, began discussing how to respond. They later published an open letter, signed by officials at companies like Lyft, Heineken USA and Booz Allen Hamilton, calling on firms like Paul, Weiss “to reflect the diversity of the legal community” or they would send their business elsewhere.

A little over a week after it was posted, the image was taken down. Paul, Weiss has said that it regretted the “gender and racial imbalance” of its 2019 class, and that the class was an outlier.

“We have a very good track record in terms of diversity,” Brad Karp, the firm’s chairman, said in an interview. “We’ve always been ranked at the very, very top of every survey.”

Paul, Weiss, with its 144 partners and about 1,000 lawyers, is, in fact, more diverse at the partner level than most of its peers. It has more African-American partners with an ownership stake, six, than a large majority of the country’s 200 biggest firms, and far more than elite competitors like Cravath, Debevoise & Plimpton and Davis Polk.

Women make up 23 percent of partners at Paul, Weiss, compared with 18 percent across the top 200 firms, according to data collected by ALM Intelligence.

Still, Paul, Weiss is no exception to the broader pattern across big law: the share of partners who are women and people of color is much smaller than the number reflected in the ranks of associates, or those starting law school, not to mention the general population.

Read the story on NY Times >

Speaking Of… The Supreme Court case that enshrined white supremacy

“White nationalist, white supremacist, Western civilization—how did that language become offensive?” the Iowa congressman Steve King inquired of a Times reporter last month. After the remark blew up, King explained that by “that language” he was referring to “Western civilization.” He also said that he condemned white nationalism and white supremacy as an “evil and bigoted ideology which saw in its ultimate expression the systematic murder of six million innocent Jewish lives.” (It’s unclear whether King thinks of Jews as nonwhite.)

However, to answer the congressman’s original question: only after a long struggle. Seventeen states had laws banning interracial marriage, which is pretty much the heart of the doctrine of white supremacy, until 1967, when the Supreme Court declared them unconstitutional. From the Compromise of 1877, which ended Reconstruction, to the Civil Rights Act of 1964 and the Voting Rights Act of 1965, American race relations were largely shaped by states that had seceded from the Union in 1861, and the elected leaders of those states almost all spoke the language of white supremacy. They did not use dog whistles. “White Supremacy” was the motto of the Alabama Democratic Party until 1966. Mississippi did not ratify the Thirteenth Amendment, which outlawed slavery, until 1995.

How did this happen? How did white people in a part of the country that was virtually destroyed by war contrive to take political control of their states, install manifestly undemocratic regimes in them, maintain those regimes for nearly a century, and effectively block the national government from addressing racial inequality everywhere else? Part of the answer is that those people had a lot of help. Institutions constitutionally empowered to intervene twisted themselves every which way to explain why, in this matter, intervention was not part of the job description. One such institution was the Supreme Court of the United States.

The case of Martha Lum is typical. She was the daughter of Jeu Gong Lum, who came to the United States from China in 1904. After being smuggled across the Canadian border by human traffickers, he made his way to the Mississippi Delta, where a relative ran a grocery store. In 1913, he married another Chinese immigrant, and they opened their own store. They had three children and gave them American names.

In 1923, the family moved to Rosedale, Mississippi, and Martha, then eight years old, entered the local public school. According to Adrienne Berard, who tells the Lums’ story in “Water Tossing Boulders” (2016), nothing seemed amiss for the first year, but when Martha returned to school after the summer the principal relayed the news that the school board had ordered her to be expelled. Public schools in Mississippi had been racially segregated by law since 1890, and her school educated only whites. The board had decided that Martha was not white and, consequently, she could not study there.

The Lums engaged a lawyer, who managed to get a writ of mandamus—an order that a legal duty be carried out—served on the school board. The board, which must have been very surprised, contested the writ, and the case went to the Supreme Court of Mississippi, which ruled that the board had the right to expel Martha Lum on racial grounds. That part was not so surprising.
The court acknowledged that there was no statutory definition of the “colored race” in Mississippi. But it argued that the term should be construed in the broadest sense, and cited a case it had decided eight years earlier, upholding the right of a school board to expel from an all-white school two children whose great-aunts were rumored to have married nonwhites.

That decision, the court said, showed that the term “colored” was not restricted to “persons having negro blood in their veins”—apparently since the children involved were in fact white. Martha Lum did not have “negro blood,” either, but she was not white. She could attend a “colored” school. Mississippi’s separate-schools law, the court explained, was enacted “to prevent race amalgamation.” Then why place an Asian-American child in a school with African-American children? Because, according to the court, the law was intended to serve “the broad dominant purpose of preserving the purity and integrity of the white race.”

The Lums appealed to the U.S. Supreme Court. At issue was the Fourteenth Amendment, which had been ratified in 1868. The first clause of that amendment is the most radically democratic clause in the entire Constitution, much of which was designed to limit what the Founders considered the dangers of too much democracy. It decrees that any person born in the United States is a citizen, and that states may not abridge the privileges or immunities of citizens; nor deprive them of life, liberty, or property without due process of law; nor deny them the equal protection of the laws. The United States has two founding documents: the Constitution, which is a legal rule book, and the Declaration of Independence, a manifesto with no force of law. The Fourteenth Amendment constitutionalized the Declaration.

The U.S. Supreme Court decision in the case, Lum v. Rice, was handed down in 1927, three years after Congress passed the Johnson-Reed immigration act, which barred all Asians from entering the United States. Was Martha Lum a citizen? The Supreme Court said she was. Was she being denied the equal protection of the laws? The Court said that she was not, and cited a series of precedents in which courts had upheld the constitutionality of school segregation.

It was true, the Court conceded, that most of those cases had involved African-American children. But it couldn’t see that “pupils of the yellow races” were any different, and the decision to expel such pupils was, it held, “within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment.” Even though the Mississippi court had stated that the purpose of the school-segregation law was to preserve “the purity and integrity of the white race,” it was not a denial of equal protection to nonwhites. The Lums, of course, knew from firsthand observation what it meant to be classified as “colored” in Mississippi, and they did what a lot of African-American Mississippians were also doing—they left the state.

The decision in Lum v. Rice was unanimous. The opinion of the Court was delivered by the Chief Justice, William Howard Taft, a former President of the United States; among the Justices who heard the case were Oliver Wendell Holmes, Jr., and Louis Brandeis. One of the precedents the Court quoted prominently in support of its decision was a case it had decided thirty-one years earlier—Plessy v. Ferguson.

Read the story on the New Yorker

Perspective Where is the progressive answer to the Federalist Society?

It‘s been more than two weeks since Ruth Bader Ginsburg began missing Supreme Court oral arguments while recovering from cancer surgery and the White House is reportedly drafting a short list of replacements. If President Donald Trump does get a chance to nominate the liberal icon’s successor, one thing can be said with near-certainty: Whoever takes her seat will come with a firm stamp of approval from the archconservative Federalist Society.

The Supreme Court, in other words, may be about to get another seismic jolt rightward thanks in part to the Federalists. And liberals don’t seem to have an answer to what has long been an asymmetrical fight in the legal world.

Over the past three decades, the Federalist Society has ascended from modest origins to become one of the most influential legal organizations in American history, with intellectual reach and political clout that no other legal group can match. As a presidential candidate in 2016, Trump effectively outsourced his Supreme Court picks to Federalist Executive Vice President Leonard Leo, and the group has enjoyed a near-lockdown on new appointments to the federal bench under Trump, most notably on the Supreme Court, where Justices Brett Kavanaugh and Neil Gorsuch each had long-standing Federalist ties prior to their nominations.

So where’s the response from the left?

As liberals anxiously watch Trump populate the federal bench with one dyed-in-the-wool conservative after another, it’s only natural for them to ask why there’s no heavyweight progressive organization to counter its influence. There are some academic groups with a progressive bent, such as the Law and Society Association, but they generally don’t venture outside of scholarship. Last year, Hillary Clinton’s former spokesperson Brian Fallon helped create a new activist group called Demand Justice to spearhead political advocacy against conservative judges. None of these groups, however, have anywhere near the breadth of ambition of the Federalist Society, which both builds a roster of prospective conservative judges and sustains the intellectual regime that fosters new ones.

There actually is one liberal analog to the Federalist Society, but chances are you haven’t heard of it: the American Constitution Society, founded in 2001, after the Supreme Court decision that effectively handed the presidency to George W. Bush. In the wake of what ACS President Caroline Fredrickson calls the “Aha! moment,” ACS was launched as a conscious response to the Federalist Society. Their operations are mirror images: conferences, chapters of law students and practicing attorneys, and education projects.

But the playing field is decidedly not level. The Federalist Society has more student chapters, more than twice as many lawyer chapters and a huge fundraising edge. In 2016, ACS had total revenues of approximately $6.5 million, while the Federalist Society took in $26.7 million. And the relative impact of the organizations can hardly be compared. The federal and state judiciaries are filled with Federalist judges, but there are no “ACS” judges to be found on the Supreme Court or the federal benches. It’s just not a thing.

What’s going on? One explanation is historical: The Federalist Society is simply older, with deeper roots. Those trace back some years before its founding, to a 1971 memo written by Lewis Powell, shortly before his nomination to the Supreme Court, in which he argued that the “American economic system is under broad attack”—and called upon the U.S. Chamber of Commerce to build institutions to change public attitudes, especially at the campus level. The Powell Manifesto, as it came to be known, foreshadowed the development of today’s roster of powerful conservative think tanks—the Heritage Foundation, the Manhattan and Cato Institutes, and the Federalist Society.

ACS didn’t get started until nearly 30 years after that memo, and 20 years after the first Federalist gathering at Yale Law School. By the time liberals got the wake-up call of Bush v. Gore, the Federalist Society had already established itself as a hugely effective networking organization for ambitious conservatives. (Approximately half of President George W. Bush’s nominees to the federal bench were Federalist Society members.) In part, ACS’ creation was triggered by shock, Frederick says: “Courts that the left had taken for granted since [Chief Justice Earl] Warren had handed the presidency to Bush.”

The right had a significant head start, and when it comes to populating the federal bench, it’s only possible to catch up while in control of the presidency. “To be fair, ACS has only had eight years of political access since it was founded,” says Amanda Hollis-Brusky, professor at Pomona College and author of “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution.”

Read the story on Politico