Wednesday November 13, 2019

#ChangeLawyers The undocumented lawyer who defended DACA at the Supreme Court

Hundreds of thousands of undocumented immigrants whose fates will be determined by the Supreme Court are placing their trust in the hands of their lawyers including one seasoned veteran, and another who is a Dreamer just like them.

The Court is set to hear arguments Tuesday over President Barack Obama's Deferred Action for Childhood Arrivals program, which protects people brought to the US as children from deportation. Theodore Olson, a veteran of 64 Supreme Court arguments who served as solicitor general under President George W. Bush, will take the lead defending the program, which the Trump administration seeks to terminate.

He'll be joined as co-counsel by Luis Cortes, a 31-year-old graduate of the University of Idaho College of Law who's never appeared before the justices. Unlike many advocates who sit at the wooden counsel's table just a few feet from the justices, he's not a graduate of an Ivy League school and he hasn't served as a judicial law clerk. Tuesday will mark his first time inside the Supreme Court building.

But Cortes is himself a DACA recipient, bringing a crucial perspective into the courtroom and anchoring what can sometimes be an abstract debate in the very concrete reality of his presence. It's his future that hangs in the balance, too.

"A lot is at stake for me individually," he said. "I will be looking at nine individuals who will ultimately decide whether my clients will be deported and me with them.”

Cortes came to the US with his parents from Mexico when he was a year old and grew up in the San Francisco Bay area. He says he learned "little by little" that he was undocumented. In 8th grade, for instance, his class was going on a field trip to Europe, but his parents said he couldn't go. He couldn't get a driver's license and couldn't get financial aid to go to college.

But when his father, who worked in the fast food industry, tried to get legal immigration status and was instead deported, Cortes began to fully grasp the ramifications of his undocumented status. His father was sent back to Mexico leaving behind Cortes' mother, a housecleaner, as well as Cortes and his younger siblings, who were born in the United States.

Cortes decided to pursue law school. After graduating from San Jose State, Cortes applied to Idaho because it was cheaper to pay for out-of-state tuition there than in-state tuition in California. Yet he almost dropped out wondering what good a law degree would do if he couldn't get a job.

Then, after his second year, Obama announced DACA and everything changed.

"It was almost unbelievable," said Cortes.

DACA provided not just work authorization "but the foundational building blocks for what it means to live life." That included a Social Security card and the ability to get a driver's license -- both of which are at stake if DACA is rescinded. Cortes recently renewed his DACA status, so if the Court allows the Trump administration to phase out the program he would still have work authorization until 2021. 

After that, he doesn't know what would happen.

"These nine justices hold my future," Cortes said.

By now, he's an expert in immigration law and knows that it is difficult to prevail in the deportation process. That's how he met his clients, who are involved in one of the three DACA cases that have been consolidated before the Court.

Read the story on CNN

Watch This DACA changed the life of these immigrants

More of This In biting speech, federal judge says Trump Administration “violates all recognized democratic norms”

A federal judge in Washington, D.C., warned against President Donald Trump’s penchant for lambasting members of the judiciary who rule against him, calling the president’s attacks “uncharted territory” during a speech attended by several Trump appointees.

“We are witnessing a chief executive who criticizes virtually every judicial decision that doesn’t go his way and denigrates judges who rule against him, sometimes in very personal terms,” U.S. District Judge Paul Friedman said at the Judge Thomas A. Flannery Lecture in Washington, according to the National Law Journal. “He seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a co-equal branch to be respected even when he disagrees with its decisions.”

“This is not normal,” added Friedman, who was appointed by President Bill Clinton. “And I mean that both in the colloquial sense and in the sense that this kind of personal attack on courts and individual judges violates all recognized democratic norms.”

Friedman recounted examples of Trump attacking judges who made rulings he considered unfavorable.

Trump has regularly demeaned judges and the judiciary, as well as independent government agencies, suggesting they should serve him, not the country. For instance, in 2017, Trump referred to federal Judge James Robart, who blocked the initial version of Trump’s Muslim ban, as “this so-called judge.”

During his 2016 campaign, Trump infamously attacked Judge Gonzalo Curiel, overseeing a case involving the then-presidential candidate’s fraudulent Trump University, by claiming the judge was biased because of his “Mexican heritage.” Curiel, whose parents immigrated to the U.S. from Mexico, was born and raised in Indiana.

“His introduction of such personal ad hominem attacks against the judge set a terrible precedent and encouraged others to join the chorus,” Friedman said of Trump’s racist slap at Curiel. “This was beyond a dog whistle. This was a shout.”

Friedman received a standing ovation after the speech, according to the National Law Journal. Among the event’s attendees were several Trump appointees, including Jessie Liu, the top federal prosecutor for D.C., as well as former Deputy Attorney General Rod Rosenstein.

Read the story on HuffPo

More of This Too Son of incarcerated parents becomes San Francisco newest DA

In a win for the progressive prosecutor movement, deputy public defender Chesa Boudin has declared victory over Interim District Attorney Suzy Loftus in the San Francisco race for DA. Boudin announced he’d won the race late Saturday afternoon following a concession from Loftus, Boudin’s campaign told The Appeal. The election was held on Tuesday, November 5, but it took several days to tabulate the votes. As with most local races in the city, voters can select their first-, second-, and third-place choices in a process called ranked-choice voting.

“The people of San Francisco have sent a powerful and clear message: It’s time for radical change to how we envision justice,” Boudin wrote in a text to The Appeal. “I’m humbled to be a part of this movement that is unwavering in its demand for transformation.”

“I didn’t win the race,” Loftus wrote in a text to The Appeal, “but we won the support of so many San Franciscans who are demanding that our city work more effectively together to build safety.” She congratulated Boudin and said she will “work to ensure a smooth and immediate transition.”

In the last weeks of the election, Loftus and Boudin led the four-candidate pack, which also included Alameda County prosecutor Nancy Tung and Leif Dautch, a deputy attorney general for California. In October, Mayor London Breed, who endorsed Loftus, appointed her to serve as interim DA after George Gascón resigned, affording her, what critics said, was an unfair boost. In addition to Breed, the San Francisco Chronicle, Governor Gavin Newsom, and Senator Dianne Feinstein also endorsed Loftus. 

Boudin earned national headlines, as well as high-profile endorsements. Vermont Senator Bernie Sanders, Philadelphia District Attorney Larry Krasner, and Black Lives Matter co-founders Patrisse Cullors and Alicia Garza all announced their support for Boudin.

During the campaign, Boudin said he planned to continue the work he did as a deputy public defender to eliminate money bail, and expand alternative to incarceration programs, including for first-time DUI offenses. 

Boudin also pledged to implement restorative justice practices, which, he said, helped him cope with the trauma of growing up with incarcerated parents, Weather Underground activists Kathy Boudin and David Gilbert. His parents were convicted for their participation in a robbery in which three people were killed. “I went through a lot of these kinds of challenges that many children with incarcerated parents go through: feelings of guilt and abandonment and anger,” Boudin told The Appeal in January. 

Read the story on The Appeal

Speaking Of… The progressive prosecutor fighting for reform in Texas

In April 2019, John Creuzot, the district attorney of Dallas County, Texas, announced that his office would not prosecute theft of “necessary items,” such as diapers or baby formula, with a value less than $750. Part of a package of sentencing reforms, including a mass dismissal of more than 1,000 marijuana-possession cases, this fulfilled a major campaign promise and cheered his supporters: Four months after starting the job, he was enacting the progressive agenda they had hoped for. “It was a good first set of policies,” David Villalobos, a criminal-justice organizer for the progressive grassroots political group Texas Organizing Project, told me. But local newspapers were publishing op-eds questioning whether he had overstepped his boundaries and worrying about lawlessness. The governor of Texas, Greg Abbott, even got involved, tweeting that Creuzot’s petty-theft policy “stokes crime.” The fight was just beginning.

The position of the district attorney in American politics has changed rapidly in the past few years, as progressive DAs have swept offices across the country with plans to reform the criminal-justice system from within. While most of the prominent DAs are in Democratic states, Creuzot, a former judge who has been registered as both a Democrat and a Republican, has emerged as one of the highest-profile DAs trying to enact progressive policies in a red state.

Texas is Republican-leaning, and although its five most populous cities are blue—or at least purple—Republican state politicians view intervention in blue cities as “political catnip,” as the Texas Monthly writer Christopher Hooks put it. At the same time, Texas has more inmates in state prisons than nearly any other state, and ranks sixth in incarceration rates. It might need more Creuzots. Whether he can succeed will reveal a lot about the appetite for reformers outside their traditional strongholds.

Michael Mata, the president of the Dallas Police Association and one of Creuzot’s outspoken critics, told me the DA’s public comments about his policy change on petty theft struck him as as an irresponsible, opportunistic bid for attention. “You just hear about the DAs in these cities saying the big, bad cops are out there arresting people who are just trying to survive,” Mata said. “It only furthers the disconnect between the community and the police officers who serve it.” He said local shop owners have told him they are now struggling with shoplifting.

Creuzot told me he has talked with representatives of retail associations, who have not mentioned a shoplifting spike, and any allegations of an uptick in crime as a result of his policies have not been substantiated. The DA, who has worked with Republicans in the past, also said he wasn’t bothered by Abbott’s tweet about him. “I got a big chuckle out of that,” he said. “He probably wasn’t serious when he said it.”

Taking controversial positions isn’t new to Creuzot. From 1982 to ’89, he worked as an assistant prosecutor in the Dallas DA’s office, where he was tasked with reexamining the case of Randall Dale Adams, who was convicted of killing a police officer and made famous as the subject of Errol Morris’s documentary The Thin Blue Line. Creuzot believed that Adams was innocent. The DA, John Vance, decided to retry Adams—and assigned the case to one of the prosecutors who had initially mistried him. The conviction was later thrown out, and the case was dismissed based on evidence from the film. Creuzot, alongside another prosecutor, was uneasy with Vance’s handling of the case and resigned from the office shortly after.

Read the story on The Atlantic

Say It Louder The complicity of lawyers in the criminal injustice system 

ALEC KARAKATSANIS’S “Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System” should be assigned reading for every first-year law student. Published last month by The New Press, the book is an unusually blunt takedown of a system the author never once refers to as a criminal “justice” system. Litigated with the intellectual vigor of someone who has won a number of landmark fights in federal court, “Usual Cruelty” clearly lays out a case for why our criminal legal system is not broken, but doing exactly what it was designed to do.

At a time when talk of justice reform has become mainstream but risks becoming hollow, and phrases like “progressive prosecutor” contribute to the deception that we are, in fact, making progress, Karakatsanis is clear-eyed about the bigger picture. But while “Usual Cruelty” is ultimately an abolitionist book that calls on people to imagine a world with fewer laws and in which jails and prisons aren’t the default response to all social problems, Karakatsanis is also keenly aware of how lawyers can use the law’s tools to fight the law’s harm. At Civil Rights Corps, the nonprofit he founded, Karakatsanis takes on cases challenging systemic injustices in the legal system — like cash bail and the systems of fines and fees that keep poor people in jail — which he says have become so “normalized and entrenched” they barely give us pause.

Who is this book for?

Much of the book is written for people who don’t know a lot about our criminal punishment bureaucracy and who generally care about issues of social justice, but don’t know much about how the criminal system works, and especially all the pain that it constantly inflicts for no good reason. But it also has a lot of deep analysis and reflection for people who have been working in the system, whether they’re public defenders or social workers or prosecutors or judges.

It’s really meant to touch anyone who’s worked in the system and get them to reevaluate, come to the system with fresh eyes and see, here’s what we’ve been doing to people and their families and their bodies. Let’s ask ourselves some really hard questions about why we’ve been inflicting so much pain. This book is also meant to be an acknowledgement of the real failure of lawyers in our vision, in our understanding of politics, our understanding of organizing, our understanding of power, the way that we’ve tried to use the legal system to change what is really a problem of capitalism and white supremacy in power. And it’s meant to reach out and say we actually need a really different approach: a mass power-building movement that lawyers should not be leading.

Some people go to law school with these grand ideas about changing the world. But your book makes a strong case that it’s not through lawyering that things are going to change.

The American legal system has never been an institution of radical social change. To the contrary, it has been an instrument of ruling class oppression. The legal system, from its founding, was about preserving distributions of wealth and property and white supremacy. If you go back and read old Supreme Court cases, you’ll see in every era the Supreme Court and the federal courts and the state courts are reproducing the sort of power dynamics of that era into what’s called legal decision-making, and passing it off as legal reasoning.

We need to build a movement that changes the power dynamics so that our society demands that our legal system create different rules. The best example of this might be Brown v. Board of Education, maybe the most celebrated legal decision in American Supreme Court history. Sixty years after Brown, you have schools that are just as segregated, if not more segregated, in some parts of the country than they were before Brown. Why? Because if you don’t attack the underlying systems of oppression that lead to a problem, a court ruling isn’t going to solve them.

A contrary example might be same-sex marriage. Very smart lawyers brought those cases 40 years ago, and they essentially lost everywhere, including in the U.S. Supreme Court. Then years after that, other lawyers, and actually some of the same lawyers, using the same words, challenged same-sex marriage bans again. This time, they prevailed. It wasn’t because the 14th Amendment changed, or because they became better lawyers. It was because there had been a movement in our society that changed the way we think about same-sex marriage. What we in the criminal system need to understand is that we need to be part of a social movement that changes the way we think about human caging. And until we are part of that movement, I don’t suspect that the courts are fundamentally going to alter this architecture of mass incarceration.

Read the story on The Intercept

Diversity Summit 2020

85% of lawyers are white. Why isn't the legal profession more diverse yet? Presented by ChangeLawyers, BASF, and Berkeley Law's California Constitution Center. Featuring ChangeLawyers℠ ED Chris Punongbayan. 4 Hours of MCLE credit.

January 21. Register here >

What does the future of the judiciary look like?
How do we build a judiciary that reflects the people and values of California? To help shine light on how the process actually works, our panelists will share their stories of how they were elevated to their judgeships. We will also discuss how we can build the necessary structures for law students and lawyers from all backgrounds, including public interest, to become successful candidates for the state and federal bench.

November 20. Register here >