Say it Louder In powerful dissent, Justice Sotomayor says what everyone knows is true
The conservative majority on the Supreme Court continues its inevitable task of remaking the law of the land in Donald Trump’s image. The latest insult happened Friday evening when the Court, on pure party lines, allowed the Trump administration’s immigration wealth test which limits legal immigration, to take effect in Illinois. It’s not a giant change to the status quo, since the test was a go in 49 states, but the decision crossed Illinois — the last state left — off of the list.
But that doesn’t mean the case didn’t ruffle some feathers on the Court.
Justice Sonia Sotomayor went off in a separate dissent that has been noted for its “caustic tone” and calling out of her colleagues on the bench. She describes the Court as kowtowing to the Trump administration, saying, “The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists—even though review in a court of appeals is imminent—that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.”
Though this has been a pattern in the Court as of late, Sotomayor sees the instant case as even more insidious:
“But this application is perhaps even more concerning than past ones,” Sotomayor continued. Previously, the DOJ “professed urgency because of the form of relief granted in the prior case—a nationwide injunction.” Now there’s no nationwide injunction, so there’s no apparent “urgency.” The DOJ “cannot state with precision any of the supposed harm that would come from the Illinois-specific injunction, and the Court of Appeals for the Seventh Circuit has scheduled oral argument for next week.” Yet SCOTUS lifted the injunction anyway. “It is hard,” Sotomayor wrote, “to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”
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Speaking Of… The Supreme Court could criminalize immigration lawyers
Under the Trump administration, the Supreme Court has been the place where immigrants’ rights go to die. Time and again, the conservative majority has upheld unconstitutional restrictions on immigration and allowed the government to implement legally dubious attacks on noncitizens in the United States. On Tuesday morning, the court continued this trend in a 5–4 decision in Hernández v. Mesa throwing out a lawsuit against a border patrol agent who shot a teenager across the Southern border, relieving the increasingly violent Customs and Border Protection from accountability. As Justice Ruth Bader Ginsburg noted in dissent, the killing was “not an isolated incident” but part of a broader pattern of abuse that CBP refuses to address.
After the court announced its opinion in Hernández, it heard arguments in another immigration-related case: United States v. Sineneng-Smith, which involves a federal law that bars people from encouraging noncitizens to enter or stay in the U.S. illegally. Remarkably, a majority of the justices seemed prepared to invalidate the statute, or at least dramatically narrow its scope. As hostile as this court is to immigrants, it may draw the line at a law that literally criminalizes immigration advocacy.
Evelyn Sineneng-Smith, the defendant in the case, ran a consulting firm that helped undocumented immigrants apply for green cards under a “labor certification” program. But she regularly promoted the program to people who were ineligible for it, then took their money and filed futile applications. In 2010, federal prosecutors charged her with fraud, for obvious reasons. But they also charged her under a law that allows the felony prosecution of anyone who knowingly or recklessly “encourages or induces” a noncitizen “to come to, enter, or reside in the United States” illegally. After a jury found her guilty, Sineneng-Smith appealed her conviction under this statute, arguing that it is overbroad in violation of the First Amendment.
No justice except Samuel Alito seemed to believe that the government can really punish anybody who “encourages” undocumented immigration. If it could, after all, then political speech defending open borders or opposing deportation might be considered a federal offense. Lawyers who represent undocumented immigrants could be prosecuted; so could family members, charities, and medical providers who urge these immigrants to remain in the country. The Department of Justice insists that nobody should worry about those possiblities, because it can be trusted to wield the law responsibly.
Read the story on Slate
More of This How judges of color transformed Houston’s criminal justice system
Beto O’Rourke lost Texas in 2018. But his unsuccessful Senate bid led to a big change in the state’s largest city: a major overhaul of the criminal-justice system.
The candidacy of O’Rourke, a young and charismatic congressman, energized Democratic voters in this red state and added momentum to a slowly-building blue wave in Harris County.
The victorious Houston-area Democrats—including 59 judges and the county’s top executive—have tackled the hot-button issue of bail reform and are debating how to improve the system for making sure poor people are represented by lawyers in criminal court. Some new judges have changed longstanding courtroom culture, ending the shackling of juveniles and fining prosecutors for withholding evidence.
Conservatives, law enforcement officials and the bail bonds industry have attacked those changes, but have not been able to reverse them.
The shift in Harris County is part of a broader rethinking of criminal justice across the U.S. As long-time advocates against mass incarceration are joined by celebrities like Kim Kardashian, “progressive prosecutors” gain steam, executions decline and both states and the federal government continue rolling back harsh drug policies.
“For a very long time Texas was the death penalty capital,” said Rodney Ellis, a longtime Democratic politician who’s now a commissioner on the five-person board that runs the county. “Harris County was the epicenter of it, and there were legendary press stories about sleeping lawyers representing people on death row.”
Since the U.S. brought back capital punishment in the 1970s, the county has sent 129 men and women to the death chamber, more than any entire state except the rest of Texas. Fifteen years ago, nearly a quarter of new prisoners in the state system came from Harris County. The number has since fallen by half and now accounts for only one eighth of prison admissions.
At the same time, the state and county demographics have shifted. Texas is now one of few majority-minority states in the nation, and in both the Houston area and the state as a whole, growth in the Latino population—which tends to vote more Democratic—has outpaced the growth in the white population.
Amid those changes but “before Beto,” Kim Ogg won her 2016 bid to be Harris County’s top prosecutor. She made some progressive moves, limiting marijuana arrests and sending fewer people to prison. But the local courts were still largely controlled by Republicans, many of whom opposed cutting back cash bail requirements.
That turned into a major issue in the 2018 race, as the county grappled with a class-action lawsuit originally filed on behalf of a young mother who’d been held in jail for driving without a license and could not afford $2,500 bail. The lawsuit argued that the county’s reliance on cash bail was unconstitutional because it amounted to a “wealth-based detention scheme,” where rich people could pay for their release while poor people would have to stay in jail. The county, and the 16 misdemeanor judges named as defendants, fought the lawsuit in federal court.
Then in 2018, Beto happened—and his momentum carried down the ballot. As a result, Democrats won control of the county government and swept the judiciary, bringing in socialists, former defense lawyers, and 17 African-American women who campaigned under the slogan “Harris County Black Girl Magic.”
“We expected to be the leaders of this situation,” said Judge Shannon Baldwin, who now oversees one of the misdemeanor courts. “We expected to be the model now for what criminal justice reform looks like.”
Last year, the county and the new misdemeanor judges agreed to a settlement that largely eliminates cash bail for low-level arrests.
“When I ran for office, I was really running to become a defendant in the lawsuit,” said Judge Franklin Bynum, a self-described socialist who oversees a misdemeanor court. “Rather than fighting the lawsuit and spending all this money and hiring all these experts to say there’s no problem, suddenly we all admit there’s a problem.”
Read the story on the Marshall Project
Less of This Police are waging a war against the first Black female DA
Later this spring, the Missouri Supreme Court will hear a highly unusual case. A man’s life hangs in the balance. So, too, does the authority of Kim Gardner, St. Louis’ top prosecutor, whose efforts to free him have been stymied by a power structure she says is allied against her because she is progressive and because she is black.
Gardner’s fight for Lamar Johnson’s freedom has become a reckoning moment over the power of progressive prosecutors—particularly women of color—and whether the systems they’ve vowed to reform will let them.
The strange twists and turns of State v. Lamar Johnson have exposed a conviction that appears gangrenous with police and prosecutorial misconduct. Johnson was convicted in 1995 of the first-degree murder of Marcus Boyd and sentenced to life in prison without the possibility of parole. Gardner, who in 2017 became the first black circuit attorney for the city of St. Louis, received a federal grant to open a conviction integrity unit to look back at cases like Johnson’s—marred by credible allegations of state malfeasance and claims of innocence.
Gardner’s investigation revealed that the sole “eyewitness” against Johnson was paid more than $4,000 to make a false identification that he later recanted, detectives fabricated four other witness statements, and the true perpetrators had come forward and said that Johnson had nothing to do with it. On July 29, 2019, Gardner’s office sought to vacate Johnson’s conviction and grant him a new trial because they believed that the evidence of his innocence was “overwhelming.”
Traditional prosecutors rarely advocate to upend a conviction, and other officials quickly stepped in. Circuit Court Judge Elizabeth Hogan denied Johnson’s release. But first, in an eyebrow-raising move, Hogan appointed Missouri Attorney General Eric Schmitt to intervene in the case. According to the judge, Gardner suffered from a conflict of interest because she was investigating misconduct by the police and the trial prosecutor, who no longer worked in her office.
The attorney general has not disputed that Johnson was wrongfully convicted, but is nonetheless spearheading the effort to keep Johnson in prison. In August, Schmitt argued, and the judge agreed, that Gardner’s motion was “improper [and] untimely,” rejecting a line of Missouri cases that permit an exception to prevent a “manifest injustice.” If this argument prevails in the state’s highest court, it will establish a legal precedent that would deal a death blow to Johnson’s case, Gardner’s conviction integrity unit, and the chance at freedom for scores of other wrongfully convicted people in Missouri.
Johnson’s case, and the treatment of Gardner, made headlines across the country. Forty-five prosecutors—Republicans and Democrats, from urban and rural districts—filed a brief in support of her position. “Addressing past injustices such as wrongful convictions is a core duty of an elected prosecutor,” they wrote, calling the appointment of the attorney general an “invitation for prosecutorial turf wars over phantom conflicts.” One hundred and six law professors weighed in with a brief of their own, noting that Gardner’s actions were not only correct but ethically required. (I was one of them). More than 25,000 people signed a Color of Change petition protesting the attorney general’s actions in the case.
Read the story on Slate
Interview of the Week Bryan Stevenson on why we need to be bold with criminal justice reform
Bryan Stevenson, founder of the Equal Justice Initiative, tells TIME about his activism, his big-screen moment and what people should know about a criminal-justice system in which black adults are about six times more likely to face imprisonment than white adults.
Reforming criminal justice has growing bipartisan support. President Trump signed a law in 2018 that, among other things, offers exceptions to mandatory minimums and reduces crack sentences. What do you make of it?
I don’t think most people understand the nature of this problem. First of all, the First Step Act impacts less than 1% of the people who are incarcerated in this country. It applies only to federal prisons. It’s not even a scratch.
So what do people need to understand?
Since President Richard Nixon, with his “tough on crime” rhetoric and “war on drugs,” we have used a criminal-justice approach when we should have used a public-health approach. We’ve created a whole matrix for imprisoning, arresting, condemning and marginalizing millions of people in this country. We are the most punitive country in the world. It’s so important to eliminate mandatory sentencing.
Has the opioid epidemic changed the attitudes of white Americans toward criminal-justice issues?
Addiction and dependency is not a black-person issue. It’s a crisis in America, and more people are seeing that. But we need to radically retreat from the approach that’s been popular over the last 50 years. I think the racialized way we’ve used the criminal-justice system is a product of what I call the politics of fear and anger.
Didn’t President Trump call himself the “law-and-order candidate” in 2016?
This is not a Trump problem. Obviously this Administration has not been responsive to these issues. But Bill Clinton was a law-and-order candidate. Every President has felt the need to move away from any talk of rehabilitation.
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Improve your Public Speaking Skills
Do you have a goal to become a better public speaker? Or maybe you want more practice to strengthen your storytelling skills?
This workshop will be led by Julia Wilson, a social justice lawyer and leadership coach with over 20 years of experience as a public speaker and storyteller. Julia will lead us in a workshop to learn how to claim public speaking space and tell our own stories with authenticity, intentionality, and heart.
March 24 at 12:00 Noon. Register here
Law School Admission Conference
This event will provide attendees with a comprehensive overview of the law school application process. Current law students and administrators will provide advice on how best to navigate the law school application process. Continental breakfast and lunch will be provided. Hosted by For People of Color, Inc.
Saturday February 29 at UCLA Law. Register here
Waging Change shines a spotlight on the challenges faced by restaurant workers trying to feed themselves and their families off tips. Featuring Saru Jayaraman, Lily Tomlin, Jane Fonda and Rep. Alexandria Ocasio-Cortez, the film reveals an American workers struggle hidden in plain sight-the effort to end the tipped minimum wage of $2.13 for servers and bartenders and the #MeToo movement's effort to end sexual harassment.
Sunday March 22 at 1PM in San Francisco. Register here
Federal Criminal Law Panel
Are you interested in practicing federal criminal law? Register for this free panel, hosted by the U.S. Attorney’s Office and the Federal Public Defender’s Office
Thursday March 5 at 1PM in Los Angeles. Register here