Wednesday Sept 20, 2020

Say it Louder Ruth Bader Ginsburg’s seat should have gone to a Black woman. It’s our turn. 

Sophia A. Nelson is a lawyer and professor, and former House Republican Committee Counsel.

The passing of Supreme Court Justice Ruth Bader Ginsburg last week came as a shock to the nation. It’s not that we all didn’t know she had been in frail health for the past decade, but I think many of us saw her as a superhero and talked ourselves into believing Ginsburg, who is scheduled to be laid to rest Friday, was never going to pass away. Many of us also worried about what her death would mean for the future of the court.

As a Black woman and a former Republican, I am angry that President Trump and Senate Majority Leader Mitchel McConnell (R-Ky.) have announced their intention to quickly fill the vacancy she has left. Joe Biden, the Democratic nominee for president, has pledged to appoint a Black woman to the Supreme Court, if he is elected. By rushing to replace Ginsburg before the November election, the White House and Senate Republicans are stealing this seat from Black women, who have never had one of our own appointed to the highest court in the land.

You might think someone who leans conservative would be cheering as Republicans closes in on a long-sought goal of ensuring a solid conservative majority on the court. But last year I publicly broke with the party that I had been a member of for most of my adult life. I am, like many, a “never Trumper” who did not support Trump in 2016 and could never support him now. As a college professor and great admirer of our Constitution, it is hard to see the once-great party of Lincoln morph into the party of Trump. The party that fought for the freedom and liberty of African Americans now calls us “thugs,” “animals,” and “anarchists” simply because we dare to stand up for ourselves, march for our God-given rights and protest peacefully to galvanize support for our very American cause.

Read the story on Washington Post

More of This Yes, pack the court—with public interest lawyers

Matthew Segal is legal director of the ACLU of Massachusetts.

In 2011, my fourth year as an appellate federal defender, I suddenly became really smart. After three years of mostly losing appeals for indigent defendants in North Carolina, I participated in a case about countless people who had been wrongfully convicted of crimes or wrongfully given lengthy prison sentences. I gave the oral argument of my life, our side won an 8-to-5 en banc decision in the Fourth Circuit, and many people won their freedom. I still remember an emotional call with the mother of one of my clients as she was on her way to pick up her son from federal prison.

Of course, that’s only part of the story. The rest is about the federal courts, what ails them, and what must be done to fix them. 

That 2011 case might have gone the other way, and countless people might have continued serving illegal sentences, if Barack Obama had not become President and nominated four of the judges who ruled in our favor. Sure, I did a good job. And yes, textualism, if it mattered, was on our side. These defendants had been convicted under statutory text requiring a previous conviction of a crime “punishable by imprisonment for more than one year,” yet the statutory maximum sentences for their prior convictions had been less than one year due to their low criminal histories. But the government had persuaded a three-judge panel that their specific statutory maximums didn’t matter, and without Obama’s additions the en banc Fourth Circuit might have agreed.

No intellect or doctrine can overcome a judiciary inclined to favor government and the powerful against the accused and the vulnerable. And that is the federal judiciary we now have. 

According to a recent study by the Center for American Progress, no sitting federal appellate judge spent most of their career with a nonprofit civil rights organization. Only about one percent spent most of their careers as public defenders or in a legal aid setting. Instead, the vast majority—more than 70 percent—worked primarily in private practice or as federal prosecutors.

The Supreme Court is worse. The late Justice Ruth Bader Ginsburg, the first director of the ACLU Women’s Rights Project, was the sole member of the Court who had dedicated a substantial portion of their career to representing clients at a nonprofit organization. There are no Supreme Court justices with meaningful experience representing people accused of crimes, or facing eviction, or battling racism, or seeking health care.

Read the story on The Appeal

More of This Detained immigrants will now be able to sue over abuse and harm

Gov. Gavin Newsom signed a bill Sunday backed by immigrant-rights advocates that mandates greater accountability by the companies that operate federal detention facilities in California.

Assembly Bill 3228 allows people to sue private detention facility operators for failing to comply with the standards of care outlined in the facility’s contract and to collect “reasonable” costs and attorney’s fees. The bill is the first of its kind in the nation, supporters say. The law takes effect Jan. 1.

It’s the latest twist in an ongoing fight pitting California leaders against federal Immigration and Customs Enforcement officials and the corporations that manage the four immigration detention facilities in the state.

Advocates say that private prison companies have been shielded by an oversight scheme that allows them to violate the minimum standards of care. Last year, inspectors at the Department of Homeland Security found that ICE doesn’t adequately hold detention facilities contractors accountable for failing to meet those standards and had imposed financial penalties only twice in nearly three years.

Read the story on LA Times

Less Of This He fought wildfires while imprisoned. California reported him to ICE for deportation.

After 22 years in prison, Kao Saelee had modest plans for his first days of freedom: swim in a lake and barbecue with his family.

But when his release date came on 6 August and his sister was waiting on the other side of the barbed-wire fence to take him home, California prison guards did not let them reunite. Instead, officers handed the 41-year-old over to a private security contractor who shackled his hands, waist and legs, put him in a van and drove off.

For the first time in his life, Saelee was placed into US Immigration and Customs Enforcement (Ice) custody and flown 2,000 miles to an Ice jail in Louisiana. He is now facing deportation to Laos, a country his family fled as refugees when he was two years old.

“I paid my debt to society, and I think I should have a chance to be with my family,” Saelee told the Guardian in a recent call from the Pine Prairie Ice jail. “What is the point of sending somebody back to a country where they don’t have no family? I would be frightened out of my mind.”

In addition to serving his sentence for a robbery case from his adolescence, Saelee also served the state of California while imprisoned: in 2018 and 2019, he worked as an incarcerated firefighter, battling the kinds of blazes that are currently devastating huge swaths of the western US.

Read the story on The Guardian

Perspective True justice for Breonna Taylor is still possible. But prosecutors need to step up.

Somil Trivedi is a senior staff attorney at the ACLU’s Criminal Law Reform Project and a former federal prosecutor.

Americans have just completed another round of one of our grimmest national rituals: shaking our heads while cops who killed an unarmed Black person get away with murder. This time the victim is Breonna Taylor, whose name has galvanized nationwide protests for racial justice, but whose family will receive no justice themselves. Yesterday, Kentucky Attorney General Daniel Cameron announced a single charge from the grand jury against only one of the three officers involved in her shooting, and even that was for shooting a wall, not Breonna Taylor. The other two will walk. And a community that has already waited six months for closure will just keep waiting.

Many are rightly pointing out that these cops should not avoid charges based on self-defense when they created the danger in the first place. Accordingly, whether the grand jury result makes sense under the criminal law will be hotly debated in the coming days. But even when there is substantial evidence of wrongdoing, police officers are almost never prosecuted, let alone convicted. And with each press conference announcing that an officer’s actions were justified, the public’s faith in the law — and in the prosecutors tasked with enforcing the law — erodes just a little bit more. Prosecutors often claim they are simply hamstrung by the law, which does confer a great deal of protection on police. But there are many actions a prosecutor can take to create lasting, systemic police accountability—if they want to maintain any credibility with the people they’re supposed to serve.

Prosecutors—both the local elected versions and Attorneys General at the state level—can and must do so much more. The work starts well before an officer causes harm.  The everyday working relationship between police and prosecutors is inherently conflicted; prosecutors rely on police for case leads and in-court testimony, and police need prosecutors to win cases and boost clearance rates.  (Sadly, trial wins and not public health outcomes are still the coin of the criminal justice realm.)  Prosecutors must institutionally separate themselves enough from police to judge them objectively.  This means refusing police union donations during their own elections.  It means mandatory reporting of cops to ethics investigators when the cops screw up.  It means putting a hard stop on lobbying in lockstep with police unions to thwart reform, as prosecutor associations so often do.  Prosecutors who are serious about accountability should also lobby for efforts like civilian oversight of police, shrinking law enforcement—including their own offices—and reinvesting in communities.

Read the story on Slate

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October 1 at 12:00PM PST

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Is the Supreme Court helping or hurting?
Alexander Hamilton called the judiciary the least dangerous branch of government. But since its establishment in 1789, the Supreme Court has steadily grown in influence and impact. So far this year the Court has issued rulings on presidential power, Congressional oversight, subpoenas to the president, church and state, LGBTQ rights, Dreamers, abortion, contraception, and the electoral college. 

October 11 at 3PM PST. Register here

#TaketheLeap Fundraiser 
Inaugural Virtual Fundraiser and a fireside chat with Honoree Scott Budnick and Moderator DMA.

October 15 at 5:30PM PST. Register here