by California ChangeLawyers
Welcome! 2020 is going to be an epic year, and we promise to keep telling the stories of legal changemakers fighting for our shared humanity. Keep News Brief going strong>
by California ChangeLawyers
Welcome! 2020 is going to be an epic year, and we promise to keep telling the stories of legal changemakers fighting for our shared humanity. Keep News Brief going strong>
Top News Meet the federal judge standing up for the judiciary
The Honorable Carlton W. Reeves, a 55-year-old judge in Mississippi, did something last week no other federal judge has done in the Trump era.
Evoking the history of segregation in the South, Reeves publicly lambasted the President for his attacks on judges, questioned Trump's commitment to diversity on the federal bench and called upon judges to do more to defend the judiciary.
While sitting Supreme Court justices, notably Chief Justice John Roberts, have pushed back on Trump's attacks at times, saying there are no Democratic judges or Republican judges, and some judges in federal courts have used harsh language to block some of his more controversial policies, no other federal judge has launched such a broad assault.
Reeves did so during a speech Thursday at the University of Virginia without ever mentioning Trump's name.
For some, the speech also represented a rare -- and unwelcome -- entry into the political arena from the federal bench, where judges publicly attempt to stay away from partisanship, regardless of their policy views.
In what could be an unprecedented move, Reeves publicly criticized the lack of diversity of the President's judicial nominees, using the speech as an entreaty to examine the role of diversity on the bench.
Trump's two Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh, both attended the same elite high school in the suburbs of Washington, for instance.
"We have as many justices who have graduated from Georgetown Prep as we have justices who have lived as a non-white person," Reeves said, referring to Justices Clarence Thomas and Sonia Sotomayor.
Reeves is more than a bystander on diversity on the bench. He is the second African-American to be appointed as a federal judge in Mississippi and has spoken about the hate mail he has received since becoming a judge.
He was among the first full class to enter an integrated first-grade classroom at a public school in Yazoo City, Mississippi. He graduated from Jackson State University and the University of Virginia School of Law in 1989 and was nominated to the US District Court for the Southern District of Mississippi by President Barack Obama.
At his confirmation hearing in 2010, Sen. Richard Durbin noted that Reeves' nomination was historic.
"You are the first African-American nominated for a federal judgeship in the State of Mississippi in 25 years, since Judge Henry Wingate was nominated by President Reagan in 1985," Durbin said.
Durbin asked Reeves to talk about the fact that Mississippi at the time had the highest percentage of African-Americans of any state and what the nomination meant.
"People need to see that they have a chance," Reeves said, " that they, too, can one day come to the great hall of the Senate and be nominated by a president to be a judge.”
Reeves' opinions have included a 2018 holding that struck down Mississippi's abortion law that sought to forbid most abortion after 15 weeks of pregnancy. He also struck down Mississippi's law banning same-sex marriage in 2014.
Before last week, however, he was perhaps most well-known for the sentencing of three young white men for the death of a 48-year-old African-American James Craig Anderson.
"On June 26, 2011, four days short of his 49th birthday, the blood of James Anderson was added to Mississippi's soil," Reeves said in 2015, according to a court transcript. "A toxic mix of alcohol, foolishness and unadulterated hatred caused these young people to resurrect the nightmarish specter of lynchings and lynch mobs from the Mississippi we long to forget.”
A frequent guest of his alma mater, Reeves told the University of Virginia School of Law in 2017 that he knew that becoming a judge "would be the best thing to create a greater good in Mississippi.”
"It's not about creating new right. It's about breathing new life into the Constitution that we have sworn to uphold," he said.
Supporters of Reeves say his life's experience are important.
"He has seen in his lifetime what it means to have an independent judiciary," said Stanford Law professor Pamela Karlan, who was a teacher of Reeves during law school and has remained close.
"It's not as if he wants judges to rise up," she said. "But they should be independent and do their job and stand up for the judiciary.”
"What Judge Reeves identifies is that the experiences and perspectives of judges is important to interpret and apply the law," University of Virginia School of Law professor Kim Forde-Mazrui, a good acquaintance of the judge, said in an interview. "The public often thinks the law is a set of rules that judges mechanically apply, but interpreting the law inevitably involves drawing on the judge's own experiences and understanding of the world.”
Last week, Reeves weaved through the history of the South and expressed deep criticism about the lack of diversity on the judiciary.
"When people of every race, ethnicity, religion, gender and sexual orientation can see their own experiences reflected in our highest institutions, they receive hope and inspiration beyond measure," Reeves said.
"When courts look like the country they represent, that -- more than any claim to pedigree or prestige --is what instills public confidence in the courts," he added.
In the speech, Reeves also spoke about assaults in history against the judiciary, such as when the Ku Klux Klan "responded to the threat of democratic justice" and in the 1950s when segregationists launched a "massive resistance" against the judiciary.
Speaking of the Trump era, Reeves said, "we are eyewitnesses" to another "great assault on our judiciary.”
Using Trump's own words against him, Reeves said, "And when the Executive Branch calls our courts and their work 'stupid,' 'horrible,' 'ridiculous,' 'incompetent,' 'a laughingstock,' and a 'complete and total disgrace,' you can hear the slurs and threats of executives like George Wallace echoing into the present."
Read the story on CNN
Speaking of… The inside story of the historic election of 19 Black women judges
On November 6 last year, all eyes were on Texas as 19 black women made history as the largest number of female African Americans elected at one time to judicial seats in Harris County. In the aftermath of the record-setting victory, a photograph taken in August of the women gathered together at the Texas Southern University Thurgood Marshall School of Law, named for the first African American justice on the U.S. Supreme Court, quickly and gleefully spread across social-media platforms worldwide. “It was our wildest hope that the photo would go viral,” says Lillie Schechter, who chairs the Harris County Democratic Party. “And now in our office we’re still getting notes from people who have seen the post and say, ‘Thank you for trusting black women.’ It’s incredible.”
The striking image of the women—17 newly elected, two reelected—standing proudly and powerfully in a courtroom, a place where African Americans have long been underrepresented and disenfranchised, represents more than a milestone. It’s proof that black women, who have always been a key voting bloc for Democrats (94 percent of black women voted for Hillary Clinton in 2016), are finally getting not just one but many seats at the table. “If you look at the backbone of the country, the black woman has always been there but not necessarily given the opportunity to have input,” says Judge Erica Hughes, who used to run an insurance and criminal private practice and now presides over the county’s Criminal Court at Law No. 3. “Black women are taking a stand and saying, ‘We bring a lot of things to the table, and you should hear our voice. You’re going to hear our voice.’ ”
The coordinated effort began in March 2018, when many of the candidates left standing after the primaries realized they had something in common. “We all looked around and were just like, ‘What is happening here?’ ” says Judge Michelle Moore, who went on to win election for the 314th Juvenile District Court. “It was definitely a pleasant surprise that there were so many of us.” Party leaders wanted to do something to highlight all of the women running, so they launched a campaign called Harris County Black Girl Magic, inspired by CaShawn Thompson, who created #BlackGirlsAreMagic in 2013 to celebrate the power of black women. “It’s been a 10-year battle to take back the county—to make it more reflective of the people,” Schechter says. “And the only way we change the face of power here locally and statewide is by winning elections.”
When Judge Dedra Davis, an entertainment lawyer elected to the 270th Civil District Court, began campaigning, she says people never thought someone like her would be in the running. She took a cooler to basketball courts to offer players water and strike up a conversation about the election. “One of the things I heard over and over was ‘You’re telling us we should vote, but when we do, it’s one white man Republican and one white man Democrat. What difference does it make which white man I’m voting for?’ ” Davis says. “I would look them in the eyes and say, ‘Well, I’m not a man, I’m not white, and I’m running.…’ If you could see their faces!” Those conversations kept her motivated. “It was very empowering,” she adds. “People were feeling like their voice had power and that their vote had some legs behind it—that it could really make a difference.”
Read the story on Marie Claire
#ChangeLawyer Most prosecutors oppose parole requests. Not this DA.
In 1996, when Brooklyn District Attorney Eric Gonzalez was just starting out as a junior prosecutor, his younger brother was shot and killed in the Bronx.
“I know how much the loss of my brother impacted my family,” said Gonzalez, who was 27 at the time. “My father never got over it.”
When the man convicted of the shooting came up for parole after serving 10 years for manslaughter, Gonzalez’s father told the parole board he opposed it. Release was denied. Two years, later, however, the board voted to grant the parole.
“Ironically, when that process was over,” Gonzalez said in a recent interview, “knowing that this guy was punished and was put through the system, and my father didn’t have to go to parole hearings anymore, there was a sense of closure. I believe in the rule of law and that is what the law allowed for, and we have moved on with our lives.”
In the 18 months since he was elected the borough’s chief law enforcement officer, Gonzalez has rarely spoken of that personal tragedy from almost a quarter of a century ago. But he cited the experience as one that has helped shape his thinking as he has wrestled with how his office, the state’s second largest, should handle those it convicts of serious crimes after they go to prison.
Prosecutors around the country almost always turn thumbs down on parole requests. But at his office, Gonzalez plans to change that.
In a memo this month to the state’s Department of Corrections and Community Supervision, which oversees both the 47,000 men and women in the state’s prisons as well as another 36,000 who are under post-release supervision, Gonzalez announced that his office will “cease our previous practice of ordinarily opposing parole.”
Instead, Gonzalez wrote, his office will now consent to parole at the initial hearing for all those who entered into plea agreements—as people do in 90 percent of cases—once they have completed their minimum sentence, “absent extraordinary circumstances and subject to their conduct during incarceration.”
For people who were convicted at trial, the DA stated, his office will for the first time consider supporting parole for individuals who were age 23 or younger and sentenced to lengthy prison terms.
Gonzalez will also make it a policy for his office to seek the minimum probation and parole required by law. Prosecutors seeking lengthier terms will now have to state their reasons in writing to a supervisor, he said.
“If they committed a crime, they should be punished,” said Gonzalez. "But shouldn’t we be reserving the maximum supervision for the person we are saying is the biggest threat?” Gonzalez said he recognized that opposition to his reforms is likely from police and others. “I view my job holistically,” he said. “I believe it is about public safety, but also about promoting trust in our criminal justice system.”
Read the story on Marshall Project
#ChangeLawyer Part II This lawyer and congresswoman knows exactly how to challenge a big bank CEO
More of This Is prison necessary? This activist may change your mind
There’s an anecdote that Ruth Wilson Gilmore likes to share about being at an environmental-justice conference in Fresno in 2003. People from all over California’s Central Valley had gathered to talk about the serious environmental hazards their communities faced, mostly as a result of decades of industrial farming, conditions that still have not changed. (The air quality in the Central Valley is the worst in the nation, and one million of its residents drink tap water more poisoned than the water in Flint, Mich.) There was a “youth track” at the conference, in which children were meant to talk about their worries and then decide as a group what was most important to be done in the name of environmental justice. Gilmore, a renowned geography professor (then at University of California, Berkeley, now at the CUNY Graduate Center in Manhattan) and an influential figure in the prison-abolition movement, was a keynote speaker.
She was preparing her talk when someone told her that the kids wanted to speak with her. She went into the room where they were gathered. The children were primarily Latino, many of them the sons and daughters of farmworkers or other people in the agriculture industry. They ranged in age, but most were middle schoolers: old enough to have strong opinions and to distrust adults. They were frowning at her with their shoulders up and their arms crossed. She didn’t know these kids, but she understood that they were against her.
“What’s going on?” she asked.
“We hear you’re a prison abolitionist,” one said. “You want to close prisons?”
Gilmore said that was right; she did want to close prisons.
But why, they asked. And before she could answer, one said, “But what about the people who do something seriously wrong?” Others chimed in. “What about people who hurt other people?” “What about if someone kills someone?”
Whether from tiny farm towns or from public housing around Fresno and Bakersfield, these children, it was obvious to Gilmore, understood innately the harshness of the world and were not going to be easily persuaded.
“I get where you’re coming from,” she said. “But how about this: Instead of asking whether anyone should be locked up or go free, why don’t we think about why we solve problems by repeating the kind of behavior that brought us the problem in the first place?” She was asking them to consider why, as a society, we would choose to model cruelty and vengeance.
As she spoke, she felt the kids icing her out, as if she were a new teacher who had come to proffer some bogus argument and tell them it was for their own good. But Gilmore pressed on, determined. She told them that in Spain, where it’s really quite rare for one person to kill another, the average time you might serve for murdering someone is seven years.
“What? Seven years!” The kids were in such disbelief about a seven-year sentence for murder that they relaxed a little bit. They could be outraged about that, instead of about Gilmore’s ideas.
Gilmore told them that in the unusual event that someone in Spain thinks he is going to solve a problem by killing another person, the response is that the person loses seven years of his life to think about what he has done, and to figure out how to live when released. “What this policy tells me,” she said, “is that where life is precious, life is precious.” Which is to say, she went on, in Spain people have decided that life has enough value that they are not going to behave in a punitive and violent and life-annihilating way toward people who hurt people. “And what this demonstrates is that for people trying to solve their everyday problems, behaving in a violent and life-annihilating way is not a solution.”
The children showed Gilmore no emotion except guarded doubt, expressed in side eye. She kept talking. She believed her own arguments and had given them many years of thought as an activist and a scholar, but the kids were a tough sell. They told Gilmore that they would think about what she said and dismissed her. As she left the room, she felt totally defeated.
At the end of the day, the kids made a presentation to the broader conference, announcing, to Gilmore’s surprise, that in their workshop they had come to the conclusion that there were three environmental hazards that affected their lives most pressingly as children growing up in the Central Valley. Those hazards were pesticides, the police and prisons.
“Sitting there listening to the kids stopped my heart,” Gilmore told me. “Why? Abolition is deliberately everything-ist; it’s about the entirety of human-environmental relations. So, when I gave the kids an example from a different place, I worried they might conclude that some people elsewhere were just better or kinder than people in the South San Joaquin Valley — in other words, they’d decide what happened elsewhere was irrelevant to their lives. But judging from their presentation, the kids lifted up the larger point of what I’d tried to share: Where life is precious, life is precious. They asked themselves, ‘Why do we feel every day that life here is not precious?’ In trying to answer, they identified what makes them vulnerable.”
Prison abolition, as a movement, sounds provocative and absolute, but what it is as a practice requires subtler understanding. For Gilmore, who has been active in the movement for more than 30 years, it’s both a long-term goal and a practical policy program, calling for government investment in jobs, education, housing, health care — all the elements that are required for a productive and violence-free life. Abolition means not just the closing of prisons but the presence, instead, of vital systems of support that many communities lack. Instead of asking how, in a future without prisons, we will deal with so-called violent people, abolitionists ask how we resolve inequalities and get people the resources they need long before the hypothetical moment when, as Gilmore puts it, they “mess up.”
Read the story on NY Times >
Even More of This The push to end “punishment fever” against people with HIV
Every five years, Mark Hunter has to pay around $300 to have his picture displayed in the newspaper and notices mailed to his neighbors, informing them that he is a sex offender. While on parole, he said, he pays about $60 a month in fees and has to attend a sex offender treatment class. His crime? In 2008, he was convicted of failing to tell two ex-girlfriends that he was HIV-positive.
Though neither partner contracted HIV, Hunter was still convicted under Arkansas’s HIV exposure law, which requires those who know they are HIV-positive to disclose their status to sexual partners. Sentenced to a dozen years in prison, he was released in 2011 after serving almost three.
But now, he must register as a sex offender, incurring the same obstacles, humiliation, and costs many others on registries face.
In Louisiana, where he now lives, Hunter’s driver’s license has “sex offender” written in capital letters under his photo, per the state’s registry requirements.
“When I saw it on my license, that was one of the most hardest things ever,” said Hunter, now 44. “Those two words on my license are still a hindrance to the life I want to live.”
Lousiana, Arkansas, Ohio, South Dakota, Tennessee, and Washington State require, or authorize courts to require, those convicted under HIV criminalization laws to be on the sex offender registry, according to the Center for HIV Law and Policy. Advocates, who condemn the statutes as ineffective, stigmatizing, and unscientific, are working to modernize the laws in the courts and state legislatures.
But even some of the fixes fall short, they say, including an amendment to Louisiana’s law that was enacted last year that removed biting and spitting as specifically identified means of transmission. Disclosure of HIV status is still required.
“We do not need to be punishing people through the criminal law,” said Robert Suttle, assistant director of the Sero Project, which advocates HIV criminalization law reforms. “This is a public health issue.”
Hunter, a hemophiliac, was diagnosed with HIV in 1981, at age 7. He said he and his family largely kept his status a secret.
“People were treated harshly who had this disease,” said Hunter. “They were treated like outcasts.”
But though the public’s perception of HIV has evolved, being on a sex offender registry carries a similar stigma. After he was released from prison in 2011, Hunter settled in Louisiana. He has found it difficult to find work, he said. Louisiana’s sex offender registry law requires him to register any address where he stays longer than seven days.
In the 1980s and 1990s, a flurry of HIV criminalization laws were enacted, many of which remain on the books. Today, 26 states have HIV-specific laws that criminalize exposure, according to the Centers for Disease Control and Prevention.
HIV became “swept up” in the era’s “punishment fever,” explained Trevor Hoppe, author of “Punishing Disease: HIV and the Criminalization of Sickness.”
“Legislators around the country were already in the mode of punishment,” said Hoppe. “It was kind of a general approach they were taking to many social problems.”
Because there is no national database that tracks prosecutions, it is difficult to know how many people have been charged, convicted, or placed on the registry as a result of HIV criminalization laws, according to Catherine Hanssens, executive director of the Center for HIV Law and Policy. A comprehensive study of Florida’s criminalization laws found that more than 600 people had been arrested for an HIV-related offense between 1986 and 2017.
Scientists, psychologists, healthcare providers, and HIV-positive advocates have condemned the laws over the decades since they were enacted, noting that there has been no association found between criminalization statutes and lower transmission rates.
“People with HIV are not out there passing HIV along in some intentional way,” said Dorian-gray Alexander, a member of the Louisiana Coalition on Criminalization and Health who is living with HIV. More than a third of the time, the transmission of HIV is between people who don’t know their status.
Read the story on the Appeal
Perspective Tell me again why prisoners can’t vote
At a forum in Iowa last weekend, Senator Elizabeth Warren of Massachusetts gave what has become a standard answer for Democrats on the question of felon disenfranchisement.
“Once someone pays their debt to society, they’re out there expected to pay taxes, expected to abide by the law, they’re expected to support themselves and their families,” she said. “I think that means they’ve got a right to vote.”
Most Americans agree with her. Nearly two-thirds of respondents in a March 2018 poll by HuffPost and YouGov said that former felons should have the right to vote. Voters and lawmakers across the country have begun to roll back the laws and procedures that, according to the Sentencing Project, kept an estimated 6.1 million citizens from the ballot box in the 2016 presidential election.
Last year, for example, a supermajority of voters in Florida endorsed a state constitutional amendment to end the draconian policy of permanent disenfranchisement (barring a pardon from the governor). As of 2018, 15 states and the District of Columbia restore voting rights to felons upon release from prison. Likewise, Alabama repealed a clause that denied rights for the vague offense of “moral turpitude,” which reportedly had disenfranchised thousands of former convicts.
But the growing tide against felon disenfranchisement raises a related question: Why disenfranchise felons at all? Why not let prisoners vote — and give the franchise to the roughly 1.5 million people sitting in federal and state prisons? Why must supposedly universal adult suffrage exclude people convicted of crimes?
There is precedent for this idea. California allows voting for those in county jails (with limited exceptions). Colorado does too. New York recently allowed those on parole or probation to vote. And two states, Maine and Vermont, already let prisoners vote. In fact, Senator Bernie Sanders of Vermont affirmed his support for voting rights in prison the same week Warren backed automatic enfranchisement for former felons.
“In my state, what we do is separate. You’re paying a price, you committed a crime, you’re in jail. That’s bad,” Sanders said, responding to a question at a town hall. “But you’re still living in American society and you have a right to vote. I believe in that, yes, I do.”
Warren was also asked to weigh on this question, but deferred it, saying only that it’s “something we can have more conversation about.”
We ought to have that conversation now. Americans may see it as common sense that you lose your right to vote when you’re imprisoned, but in many democracies prisoners retain the right to vote. When that right is revoked, it’s only for particular crimes (in Germany, it’s for “targeting” the “democratic order”), and often there is a good deal of judicial discretion. Mandatory disenfranchisement is unusual, and permanent disenfranchisement is even rarer.
Mandatory disenfranchisement is constitutional — the 14th Amendment allows the government to restrict the right to vote because of “participation in rebellion, or other crime” — but there are few good reasons for the practice. The best argument, outside of the case from custom and tradition, is that committing a serious crime voids your right to have a say in the political process. You lose your liberty — your place in civil society — and the freedoms that come with it.
But doing it that way — subjecting prisoners to a kind of social death — is in conflict with the idea of “inalienable” rights that cannot be curtailed.
As it stands, incarcerated people retain a variety of rights, some of which touch on the political rights and responsibilities of citizenship. Prisoners have freedom of worship. They can protest mistreatment and poor conditions. They can exercise some free speech rights, like writing for newspapers, magazines and other publications. To that point, there is a rich literature of work by incarcerated people tackling complex social and political issues. Voting would be a natural extension of these activities.
An obvious objection is that criminal transgressions render prisoners unfit for participation in democratic society. But there’s nothing about committing a crime, even a serious one, that renders someone incapable of making a considered political choice. Losing your liberty doesn’t mean you’ve lost your capacity to reason. Prisoners are neither more nor less rational than anyone else who is allowed to vote.
If anything, the political system needs the perspectives of prisoners, with their intimate experience of this otherwise opaque part of the state. Their votes might force lawmakers to take a closer look at what happens in these institutions before they spiral into unaccountable violence and abuse.
There are practical benefits as well. Racial disparities in criminal enforcement and sentencing means disenfranchisement falls heaviest on black communities. This is not just a direct blow to prisoners’ electoral power; it also ripples outward, depressing political participation among their friends, families and acquaintances. On the other end, suffrage in prison may help incarcerated people maintain valuable links to their communities, which might smooth the transition process once they’re released.
“Citizenship is not a right that expires upon misbehavior,” Chief Justice Earl Warren wrote for the majority in Trop v. Dulles, a 1958 case dealing with the rights of a military deserter. And, he continued, “citizenship is not lost every time a duty of citizenship is shirked.” Yes, prisoners have committed crimes, and yes, some of those are egregious. But depriving any citizen of the right to vote should be the grave exception, not a routine part of national life. Universal suffrage means universal suffrage.
Read the story on NY Times