Wednesday June 26, 2019

#ChangeLawyers A civil rights lawyer’s “not entirely rational” quest for justice

Before I meet with Bryan Stevenson, I tour the museum he opened around the corner from his office. The heat in downtown Montgomery, Alabama, is more Arizona suburb than Gulf riverfront today, but thankfully, the Legacy Museum’s employees resist the impulse to blast subzero air conditioning to compensate. The museum has been operating for more than a year now. Though its subject is epic in scope — black history “from slavery to mass incarceration” — its most arresting feature is the row of booths nestled in the back corner. Beyond the slave-auction advertisements, lynching photos, and Jim Crow–era signs barring “Colored” entry to everything from bus depots to diners stands an approximation of a modern-day prison visitation center.

Each booth has a phone and a black leather stool in front of it and contains a screen with a life-sized video recording of a formerly incarcerated person in prison grays. Pick up the receiver and you can listen to them speak. They do so in plain and declarative sentences about prison life — the vindictive guards, the dwindling family visits, the hopelessness of a life where your worst mistake is a pretext for the disavowal of your humanity. Look to the nearest wall and you can see letters from prisoners to their attorneys — in some cases, written to Stevenson himself. Some are from children, scrawled on notebook paper that, in a kinder world, might have been used for homework assignments. Together they amount to an extended plea for mercy, each more plaintive than the last in its yearning for contact with a person who means them no harm.

“I appreciate your observations about the museum, because we were very motivated to make it first-person,” Stevenson tells me. We’re sitting across a table from one another in an eerily quiet conference room. Were he not dressed in funereal black and white, he’d look like a Buddhist monk: bald, clean-shaven, and serene, with a face that could be anywhere from 35 to 65 years old. (He’s 59.) Stevenson is one of the most accomplished defense attorneys in the country. For more than 30 years, he has represented people on death row and children sentenced to life in prison without the possibility of parole in Alabama. He and his staff at the Equal Justice Initiative — the Montgomery-based criminal-defense organization he founded in 1989, whose offices we’re currently sitting in — have won reversals, relief, or release for over 135 death-row prisoners. He has argued and won five cases before the United States Supreme Court.

The Legacy Museum represents something of a late-career pivot for the veteran attorney. Ten years ago, Stevenson came to believe that Brown v. Board of Education would’ve been decided differently in 2008 than it was in 1954. “I don’t think the Supreme Court would do it,” he says of the landmark ruling that outlawed de jure school segregation. “We’re not sufficiently committed to equal justice under law.” The problem he identified was public sentiment. People did not fully appreciate the history behind the civil-rights gains that, he believed, the courts were becoming less interested in protecting. So Stevenson became a storyteller. He hopped on the lecture circuit and gave a TED Talk about the death penalty. He published a New York Times–best-selling memoir in 2014, titled Just Mercy. He has an HBO documentary, True Justice, about his life and work airing on June 26. In his efforts to reshape the public’s understanding of how racism affects society and criminal justice, Stevenson and his staff came up with two concepts that, last year, debuted as major cultural institutions: the Legacy Museum, which I visited before our meeting; and the National Memorial for Peace and Justice, billed as the first monument to Americans killed by lynching, which preserves on iron slabs the names of more than 4,000 black victims murdered between 1877 and 1950.

Stevenson’s knack for galvanizing narratives is as evident in these facilities as it is when he speaks in public. In talks to large audiences, he dances fluidly between the measured intonation of a therapist and the soaring rhetorical fervor of a preacher. (He grew up in the black church in rural Delaware.) He has a wealth of personal anecdotes to illustrate his expertise and advance his provocative arguments. To make his case against the death penalty, Stevenson tells of a German scholar who once explained to him that her government could never execute people because the Holocaust had nullified its moral legitimacy to do so. (Stevenson thinks America’s treatment of black people should prompt the same conclusion here.) To make his case for “getting close” to the condemned and learning more about their lives, Stevenson recalls delivering what seemed like bad news to a prisoner, back when he was a young lawyer with the Southern Prisoners Defense Committee: His organization hadn’t been able to stay the man’s execution, but he wouldn’t be killed within the next year. To Stevenson’s surprise, the man was ecstatic. Even as the prison guards tightened his shackles to return him to his cell, the man burst into song: “A higher plane, that I have found, Lord, plant my feet on higher ground.”

Read the story on NY Magazine 

More of This From juvenile delinquent to Juris Doctor

When a Family Court judge gave her a second chance after a brush with the law, Carmen Day promised to return to his courtroom one day — as a lawyer.

Twelve years later, Day is just a semester away from fulfilling her dream. She is a third-year student at Rutgers-Camden Law School and has reunited with Judge Charles Dortch, who adjudicated Day so long ago.

It has been a long journey for Day, 29, of Sicklerville, from the past that nearly landed her behind bars as a teenager. Her time before the judge was a wake-up call to turn her life around and pursue a childhood dream.

“I always wanted to be a lawyer," Day said during an interview on the Rutgers campus. “I didn’t want to tarnish my record and hurt my chances.”

Born in Camden, Day was raised by her mother and stepfather and her biological father. Her legal troubles began when she enrolled at nearby Pennsauken High school and succumbed to peer pressure from her boyfriend and friends. The once A+ student thought about dropping out of school, but her mother, also named Carmen, refused to allow it.

Day was facing possible jail time when she appeared before Dortch in December 2006. Juvenile records are sealed and Day declined to provide specific details about her case, saying only that she had gone “down the wrong path.”

Although a public defender negotiated a deal that called for Day to serve 18 months’ probation, Day pleaded for leniency, baring her soul and sharing her career aspirations with the judge. Dortch cut her sentence to six months, to coincide with her high school graduation.

When Dortch gave her a chance to speak, Day apologized to her mother and then looked the judge in the eye. “I want to be somebody," she told him. "Maybe I’ll be a lawyer in your courtroom some day.”

Dortch was impressed by Day’s sincerity and advocacy on her own behalf. He was also struck by her desire to become a lawyer, the first such vow he’d ever heard from a defendant in his courtroom.

“I saw it as an earnest passion to want to move past the offense and her circumstances,” Dortch said. “She presented [herself] as a fighter.”

Day stayed out of trouble and didn’t see Dortch again until a chance encounter last January. She had planned to seek him out after she graduated from law school at Rutgers-Camden (which, coincidentally, is Dortch’s alma mater). But fate intervened when a classmate who clerked for Dortch invited Day to tag along to visit his courtroom. Day asked to meet privately with the judge — and promptly burst into tears.

“I was like, ‘Lord, here is the moment I’ve been waiting for,' " she recalled thinking. “It was so emotional. For me, everything had come full circle.”

Dortch told Day that he was proud of her, and the two posed for photographs. He then took her back to the courtroom and introduced her to prosecutors, public defenders and staff, who all applauded. Dortch said he enjoys sharing her story, especially with young people, as “a tremendous example of grit, perseverance, and determination.”

​Read the story on Philadelphia Inquirer 

Even More of This Trans women don’t want your sympathy. They want to be treated like human beings.  

​It’s Pride month—a celebration of the legacy of resistance that people who are lesbian, gay, bisexual, transgender, gender non-conforming, and more have waged to live their lives on their own terms. Fifty years ago this month, the now-famous uprising at the Stonewall Inn in New York City marked a turning point for people who were forced to live in the shadows because of their sexuality or for choosing to defy gender norms.


As a Black queer woman who has been married to a trans person for more than 10 years, I’m conflicted about what Pride has become. While rainbow flags decorate nearly everything from my Uber ride to streetlights, more than 10 trans women, the majority of them Black, have been murdered this year—seven have been murdered in the past month.


Dana Martin was 31 when she was killed in Montgomery, Alabama. Jazzaline Ware was found dead in her apartment in Memphis, Tennessee. Ashanti Carmon was 27 when she was shot and killed in Prince George’s County, Maryland. Claire Legato was 21 when she was shot and killed in Cleveland, Ohio. Muhlaysia Booker was shot and killed in Dallas, Texas; she was 23. Paris Cameron was one of three people who were shot and killed in an anti LGBT hate crime in Detroit, Michigan. Chynal Lindsay was 26 when she was found dead in Dallas, Texas. Chanel Scurlock was 23 when she was found fatally shot in Lumberton, North Carolina. Zoe Spears was the same age when she was found lying in the street with signs of trauma in Fairmount Heights, Maryland. Each one of these women are Black.


The average life expectancy of a Black trans woman in America is 35 years old. None of these women had even reached that young age. The difference between the average life expectancy of a Black trans woman and the rest of the population is striking: The average life expectancy of Black cisgender women is 78 years old--more than 40 years longer than Black trans women. All but two of the Black trans women who were murdered this year, didn’t even make it to age 30. This fact alone should be sending us into a frenzy, during Pride month, no less—and yet, it’s not.


From Sylvia Rivera to Miss Major Griffin Gacy, trans women of color have opened doors for others in the community to live more freely. Yet few seem to want to interrupt the celebrations to take on a fundamental question facing not only the queer community but the whole of American society: Why are Black trans women being murdered?


Gender is a tricky terrain, littered with what we have all been taught about what a “man” is and what a “woman” is. Most of those characteristics are constructed by society and are rooted in power. Being assigned a woman or a man, through no choice of your own, has consequences. In America, being assigned a woman means being paid less and being more likely to be sexually assaulted or raped, among other things.


What is also tricky, and for many, dangerous, about being assigned a gender is that if you defy the gender you were assigned, you are more susceptible to being forced to live below the poverty line, to be unemployed or conditionally employed, to lack adequate healthcare, and to be murdered.
Exclusion, discrimination, poverty, and a lack of political power is what is killing trans women, and, particularly, trans women of color. Daring to define yourself, for yourself, is a fundamental value that this country espouses, and yet this community is not being afforded the promise that America claims to offer. 


Isa Noyola is the Deputy Director at Mijente, a hub for organizing Latinx and Chicanx people online and offline. Noyola, who is a trans Latinx activist herself, works with members of her community to change the laws and the culture that keeps trans women on the outskirts of society, and has done so for the last decade. “The community has been in survival mode, and has been insular in trying to survive and keep living, in ways that are often clandestine. The large part of our community is engaged in street-based economies: sex work or other means of survival. We have had to take care of ourselves without relying on the state to protect us, and there’s resilience in that.”


Read the story on Marie Claire 

Watch of This Lawyer speaks out against inhumane conditions at the border

Less of This This lawyer doesn’t think detained children need toothbrushes  

She has received death threats. On Twitter, someone posted her work phone number, and someone else announced that her “room in hell is ready.” Howard Dean, the former governor of Vermont and Democratic presidential candidate, said she “needs to be fired and prevented from ever holding another government job.”

Her name is Sarah B. Fabian. She is a Justice Department lawyer who has been a somewhat anonymous foot soldier in the Trump administration’s legal battles over immigration.

Until last week, that is, when a courtroom video went viral of Ms. Fabian suggesting that the federal government may not be required to provide soap, toothbrushes or beds for detained migrant children.

Ms. Fabian appeared before the United States Court of Appeals for the Ninth Circuit, in San Francisco, in a case about how the federal government is legally obligated to treat migrant children who are in custody. At the hearing, Ms. Fabian tried to parse the meaning of “safe and sanitary” conditions, the standard established by a settlement agreement that determines the government’s handling of migrant children who are being held in detention.

“It’s within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, that’s not ‘safe and sanitary,’” said Judge A. Wallace Tashima of the Ninth Circuit, a former Marine who was imprisoned as a child in a Japanese-American internment camp in Arizona during World War II. “Wouldn’t everybody agree to that? Do you agree with that?”

“Well, I think it’s — I think those are — there’s fair reason to find that those things may be part of ‘safe and sanitary,’” Ms. Fabian replied.

“Not ‘may be,’” Judge Tashima said. “‘Are’ a part. Why do you say, ‘may be’? You mean there’s circumstances when a person doesn’t need to have a toothbrush, toothpaste and soap for days?”

“Well, I think, in C.B.P. custody, it’s frequently intended to be much shorter term,” Ms. Fabian replied, referring to the Customs and Border Protection agency. “So it may be that for a shorter-term stay in C.B.P. custody that some of those things may not be required.”

An edited, four-minute video of Ms. Fabian’s exchange with the judges posted by NowThis News on Twitter has been viewed more than 20 million times.

Read the story on NY Times 

Reform Prosecutors The most important DA race in the country is taking place in Los Angeles 

Los Angeles has the biggest jail system in America and sends people to state prison at almost four times the rate of San Francisco, even though violent crime has fallen in both cities. And there has not been a death penalty case in San Francisco in decades, while prosecutors in Los Angeles are still seeking new capital cases after Gov. Gavin Newsom issued a moratorium on executions.


San Francisco and Los Angeles may share a similar brand of liberal politics. They are both led by mayors who see it as their jobs, in part, to push back against President Trump’s agenda, and both cities are trying to bring liberal solutions to bear on some of the same problems, like homelessness and housing.
But when it comes to criminal justice, the two cities could not be more different.


“They are polar opposites,” said Patrisse Cullors, a co-founder of Black Lives Matter.


Now, those competing approaches — pushing to reform mass incarceration versus a more traditional get-tough-on crime tack — are likely to clash in the race for district attorney of Los Angeles. George Gascón, the district attorney of San Francisco, is weighing a return home to Los Angeles, where he was a police officer in the 1990s, to challenge Jackie Lacey, Los Angeles’s incumbent top prosecutor, setting the stage for what activists and experts say will be the most important district attorney’s race in America.


Mr. Gascón would not confirm that he is joining the race, though an associate with knowledge of his plans said he is likely to enter. In an email, Mr. Gascón said, “I am both proud and humbled that so many Angelinos have encouraged me to bring a data-driven vision of public safety and racial equity back to my home town of Los Angeles.”


As he weighs the decision, Mr. Gascón has been visiting local activist groups in Los Angeles, including Black Lives Matter. In meetings, he has touted his record in San Francisco of reducing jail and prison populations and tackling bias by keeping demographic information about suspects from prosecutors as they decide whether to bring charges.


Activists in Los Angeles, as well as national figures who have backed, with campaign cash and grass-roots support, liberal district attorney candidates across the country in recent years, are pushing Mr. Gascón to run.


“This race is a huge opportunity,” said Anne Irwin, a lawyer and director of Smart Justice California, an advocacy group. “Los Angeles has the biggest prosecutors office, and affects more lives, than any other prosecutors office in the country. Electing a reform-minded prosecutor there will change the criminal justice landscape nationally,” she said.


Read the story on NY Times

Perspective The travel ban shows what happens when the Supreme Court trusts Trump

The following editorial was written by Joshua A. Geltzer (@jgeltzer), a former deputy legal adviser and senior director for counterterrorism at the National Security Council, and Neal K. Katyal (@neal_katyal), a former acting solicitor general. Both are law professors at Georgetown. They filed an amicus brief on behalf of the House of Representatives in the census case before the Supreme Court.

A year ago, the Supreme Court upheld, by a 5-4 vote, President Trump’s imposition of a ban on travel from several predominantly Muslim countries. The court’s decision was gravely disappointing the day it was handed down. A year later, it looks even worse — particularly because it rested on three premises pushed by Trump Administration lawyers that have proven thoroughly unfounded.

The false premises should act as a cautionary tale: This term’s Supreme Court case on whether to allow a citizenship question on the 2020 census was similarly argued on what may turn out to be false premises.

In the travel ban case, first, the more conservative justices emphasized its temporary nature. The decision acknowledged that the provision of federal immigration law relied on by President Trump refers to a president’s authority to “suspend the entry” of foreigners to the United States; it further acknowledged that the word “suspend” means something temporary rather than permanent. Moreover, the majority opinion emphasized that, according to the same federal law, the president could maintain the ban only “for such period as he shall deem necessary.” The ban was thus upheld as something merely temporary — as required by law.

Yet here we are, a year since the court upheld Mr. Trump’s third version of the ban, almost two years since that version took effect and nearly 29 months since Mr. Trump issued the ban in its original form. The ban upheld by the court remains in full effect, and there’s not a whisper from the White House that it will be repealed. What the court’s majority accepted as temporary looks increasingly permanent. This was exactly the risk that a bipartisan group of former top officials — like William Webster, Jack Danforth, Christie Whitman and others — warned.

Second, the opinion emphasized a year ago that, even with the ban in place, there was a requirement for periodic review of the countries subject to it. The majority’s opinion stressed that the presidential proclamation carrying out the ban requires the Department of Homeland Security to assess on a continuing basis whether entry restrictions against particular countries should be altered — and to provide a report to the president every 180 days. Indeed, the majority justices seemed quite taken by the convenient fact that, just 15 days before the case was argued at the Supreme Court, the White House had removed Chad from the list of countries subject to the ban as a result of the 180-day review.

Well, it’s been 14 months since Chad was removed from a ban to which it never should’ve been subject in the first place, and no other country has shared its good fortune. Indeed, not only has no country come off the list since the court upheld the ban, but there’s been no public indication we have found that the required 180-day review is even occurring. If it is, it’s happening entirely in secret — and yielding no alterations. The regular reviews emphasized a year ago by the court’s majority now look even more like something more fictional than a robust evaluation process.

Read the story on NY Times

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