Wednesday November 27, 2019

Watch This The audacity to believe that someone like me could become a lawyer 

Jonathan Verdugo is a law student at USF School of Law and a 2019 ChangeLawyers℠ Scholar. 

Podcast of the Week The government lawyers resisting the Trump Administration’s “Remain in Mexico” policy

Reports from the frontlines of the Trump administration's "Remain in Mexico" asylum policy. We hear from asylum seekers waiting across the border in Mexico, in a makeshift refugee camp,  and from the officers who sent them there to wait in the first place. 

Listen to the story on This American Life

More of This Pardon prisoners, not turkeys

Mark Osler is the Robert and Marion Short professor of law at the University of St. Thomas in St. Paul, Minnesota. 

At some point before Thanksgiving, President Trump will likely pardon a pair of turkeys. The turkeys will be given silly names (past recipients have included birds named Mac and Cheese), some children and White House staffers will look on, and there will be forced jokes and stiff laughter.

It’s painful to watch. Worse, it mocks the raw truth that the federal clemency system is completely broken. While those two turkeys receive their pardons, nearly 14,000 clemency petitions sit in a sludgy backlog. Many of the federal inmates who have followed the rules, assembled documents, poured out their hearts in petitions and worked hours at a prison job just to pay for the stamps on the envelope have waited for years in that queue.

I know some of them. With the students in my law school clinic, I have helped people with clemency petitions for almost a decade. For most of that time, I was deluged with mail from incarcerated people who wanted us to help them prepare commutation petitions. (Commutations shorten a sentence but don’t affect the conviction the way a pardon does.) Many of them are well-deserving; it was rewarding to tell their stories of rehabilitation and hope.

Those have tapered off, and now most of my mail is from people who have already filed a petition. They want to know what is happening, and what else they can do. Too many of them have unrealistic plans — often, and very specifically, the plan is that Kim Kardashian West will help them. Or, as one man put it “I’ll take any Kardashian.” It is true that Kardashian West advocated for Alice Marie Johnson, and that Johnson did get clemency from President Trump. But that is a sample size of precisely one, while thousands wait.

There is a deep sadness in all this: the graceless show of “pardoning” turkeys; the endless pile of files somewhere; the bizarre, tragic and wrong belief that a central constitutional power of the presidency has been delegated to a single well-meaning celebrity.

The problem of federal clemency can be fixed, but neither President Barack Obama nor Trump has answered calls to do so. It is a bipartisan failing rooted in our usual inattention to process as a driver of outcomes.

Read the story on Washington Post

More of This Too He spent 27 years in prison making murals. Meet the Philadelphia DA's artist in residence. 

For nearly two decades, James Hough painted sections of murals that would splash color, bold imagery, and messages of resilience, healing and hope across more than 50 blank or blighted walls across Philadelphia.

But Hough — who was serving a life sentence at the State Correctional Institution-Graterford — never saw the finished artwork. Each square of parachute cloth he painted was sent out into the world. He saw the finished product only in photographs sent to him by Mural Arts Philadelphia’s Restorative Justice program.

Then, the U.S. Supreme Court ruled that life sentences automatically imposed on minors were cruel and unusual, putting Hough in line for a new sentence making him eligible for parole.

Now, Hough is seeing his work on display for the first time — and expanding his role in making public art as an unlikely emissary for the Philadelphia District Attorney’s Office, where he is taking a position that’s been described as the first-ever artist-in-residence at a DA’s office, embedded alongside prosecutors, investigators and victim advocates.

Philadelphia has seen artist residencies in a high-poverty neighborhood, an environmental education center and even a dump. But a DA’s office where prosecutors are busy handling sensitive and serious matters?

It makes perfect sense to DA Larry Krasner, who sees the arts as central to the criminal justice reform movement, starting with the writing of Michelle Alexander and continuing with the films of Ava DuVernay, right up to Kendrick Lamar’s songs of racial injustice.

“We’re seeing this bona fide cultural moment, and the arts are an integral part of it," he said. "And the connection between the reforms we’re trying to make in Philadelphia and the people in Philly who are part of that movement are best made in some ways through the arts.”

He also sees art as a means of communicating with the public, making the office more accessible.

Read the story on Philadelphia Inquirer​

Less of This These prosecutors promised change, but now their power is being stripped away

While Lamar Johnson has spent 24 years in a Missouri prison, evidence of his innocence has steadily mounted. Two other men who confessed to the murder attributed to Mr. Johnson said he did not do it. And the only eyewitness against him — without whom prosecutors said they had no case — later recanted.

This year, after his fruitless declarations of innocence from behind bars, prosecutors from the same office that sent him away for life in 1995 decided that he was innocent and asked a judge to grant him a new trial. The response was swift and not in Mr. Johnson’s favor: The Missouri attorney general weighed in, helping convince the judge to deny the request.

The pushback faced by prosecutors in Mr. Johnson’s case is not unique. Across the country, similar clashes are playing out as prosecutors who were elected in recent years promising a different approach to criminal justice have seen some of their efforts frustrated. Opponents with a more traditional view of law and order are taking concrete steps to try to block them in court and strip them of discretion or money to run their offices.

From the start, these prosecutors met fierce criticism from law enforcement and other elected officials when they promised to crack down on police misconduct, prosecute fewer nonviolent crimes and reverse potentially wrongful convictions.

This month, Chesa Boudin, a former public defender whose parents were sent to prison when he was just a year old for their roles in a deadly armored car robbery, eked out a narrow victory in San Francisco after pledging wide-ranging reforms. The city’s police union had spent more than $600,000 on ads opposing Mr. Boudin, declaring him the “#1 choice of criminals and gang members.”

For decades, district attorneys enjoyed almost unlimited discretion in how they could pursue cases. Most of them used that authority to send more and more defendants to prison, helping to drive the nation’s incarceration boom.

What is now at stake is the latitude of prosecutors to make decisions meant to slow, instead of accelerate, the pipeline to prison. Experts say more conflicts are sure to emerge between prosecutors elected in mid-to-large-size cities, where a new approach is popular, and state officials who answer to a wider electorate that does not favor such sweeping reforms.

“When D.A.s were ramping up, no one had a problem,” said Miriam Krinsky, a former federal prosecutor who is executive director of Fair and Just Prosecution, an umbrella group of district attorneys seeking change. “Now we’re in a different moment, where some are trying to de-incarcerate, and some people invested in the status quo are trying to clip their wings.”

The pushback could have major implications, both for the role of prosecutors and individual cases. If the judge’s ruling in Mr. Johnson’s case in St. Louis is upheld on appeal, for example, it could make it almost impossible for prosecutors in Missouri to reopen similar cases in the future, no matter how persuasive the new evidence.

Read the story on NY Times

Perspective Right wing lawyers are ready for the Supreme Court to hear their cases

Aaron Tang teaches constitutional and education law at the University of California, Davis.

What a time to be a conservative movement lawyer. Emboldened by the confirmation of Justice Brett Kavanaugh, lawyers on the right have asked the Supreme Court to push the law beyond existing boundaries on a range of issues. From immigration, abortion and the use of public funding on religious schools to gun rights and L.G.B.T. rights, conservatives are understandably hopeful the newly aligned court will hand down a wave of victories on social issues that divide the nation.

For progressives, this might seem worrisome enough. But there’s a whiff of something even more troubling beneath the surface: raw hypocrisy. In several major cases this term, conservatives are relying on arguments that both they and the court have explicitly rejected as a matter of principle over the last five decades. This hypocrisy presents the Supreme Court with a fundamental challenge. Will the court apply settled law neutrally, even if doing so leads to outcomes the conservative majority disfavors? Or will the conservative majority bend established rules to enable its preferred policy outcomes?

Start with New York State Rifle & Pistol Association v. New York, a case set for argument on Dec. 2. Gun owners in the case are challenging a New York City ordinance that prohibits gun owners with licenses to possess guns only at their homes from bringing their firearms to shooting ranges outside city limits. The gun owners do not argue that the Constitution affords them an express right to bring their guns to shoot at any range of their choosing. They argue instead that the city’s restriction violates an “implied” constitutional right — a right to “acquire and maintain proficiency” in firearms use that is an unspoken corollary to the Second Amendment right to bear arms.

This is a stunning argument. For decades, conservatives have panned the very notion of implied constitutional rights, arguing that the court should stay within the confines of explicit constitutional guarantees. For example, in his 2015 dissent from the decision to uphold a constitutional right to same-sex marriage, Chief Justice John Roberts wrote that, “Allowing unelected federal judges to select which unenumerated rights rank as ‘fundamental’ — and to strike down state laws on the basis of that determination — raises obvious concerns about the judicial role.” A similar concern led five conservative justices to reject an implied constitutional right to education in 1973. Now, the gun activists’ argument raises the unsettling possibility that the court will enshrine a more encompassing theory of constitutional rights for gun owners than for schoolchildren.

Conservative hypocrisy will also be front and center in January at the oral argument in Espinoza v. Montana Department of Revenue. The case involves a Montana tax credit that provides funding for private school scholarships to religious and secular schools. The Montana Supreme Court struck down the tax credit in its entirety, reasoning that it violated the “no-aid” provision of the Montana Constitution. Under that provision, no public funding may be used directly or indirectly to aid any religious school.

A group of Montana parents who send their children to a nondenominational Christian school are now attacking Montana’s no-aid provision in the Supreme Court. They argue that the provision violates the Equal Protection Clause because the provision was initially enacted during a period of anti-Catholic bigotry in the 19th century, as part of the state’s first Constitution. Represented by the libertarian Institute for Justice, the parents make this claim even though the no-aid provision applies equally to all religious denominations. Neither should it matter, the Institute argues, that delegates to Montana’s 1972 constitutional convention overwhelmingly re-enacted the no-aid provision in order to protect religious institutions from state interference.

This broad view of the Equal Protection Clause cannot be squared with conservatives’ long-running effort to emasculate equal protection doctrine in the context of discrimination against racial minorities. Conservatives, for example, have rejected challenges to laws or policies that appear neutral on their face but have radically disparate racial impacts. Conservatives have also ignored findings of discriminatory intent behind putatively neutral laws. Just last year in Abbott v. Perez, the five conservative justices reversed a lower court’s decision to invalidate a racially gerrymandered Texas redistricting map. In reaching that outcome, the conservative majority explained that when a new lawmaking body re-enacts an old provision that suffered from bias, any discriminatory “taint” from the prior enactment is eliminated unless the plaintiffs can show discriminatory intent behind the new enactment, too. But if that is true for racial discrimination, as in Abbott, why not for religious discrimination too, as in Espinoza?

Read the story on New York Times

Decolonize Yourself and Your Workplace 

Featuring ChangeLawyers℠ ED, Chris Punongbayan, and ChangeLawyers℠ Chief Content Director, Carlos Aguilar.

Have you ever been a room full of people who don’t look like you? Do you code switch at work because you know you can’t be real in certain environments? You’re not alone. This two-part fireside chat will dig into some hard truths about the challenges we face when we try to liberate philanthropy.

Co-hosted by ChangeLawyers & Northern California Grantmakers 

Liberate Yourself, January 14, 2020. Register here >
Liberate Foundation, February 4, 2020. Register here >

Law School Admissions Conference at Berkeley Law
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.

February 1, 2020. Register here >

Job Opportunity at Legal Services for Children

LSC seeks an bilingual attorney to represent children in immigration proceedings. Clients will be living in the community in the Bay Area.  Clients are primarily monolingual Spanish speakers.  We welcome applicants at all levels and provide opportunities for training and leadership.  

Apply here >

Job Opportunity at San Mateo County Bar Association

The San Mateo County Bar Association is seeking a new Chief Defender/Executive Director of its Private Defender Program. Since 1968, the San Mateo County Bar Association has operated the Private Defender Program (PDP) under the provisions of a contract with the County of San Mateo for the legal representation of all indigent persons eligible for the appointment of counsel at public expense.

Apply here >

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, 2020. Register here >