Wednesday October 23, 2019

Yes She Can The Japanese-American woman who successfully challenged mass interment of American citizens

It was January 1942, and Japanese-American civil servants in California were alarmed. Within weeks of Japan’s attack on Pearl Harbor, the state government had sent an invasive questionnaire to its employees of Japanese descent.

Did they speak Japanese? Had they ever visited Japan? Were they members of any Japanese organizations?

Anti-Japanese sentiment was high, and the survey, with its accusatory tone, seemed bent on portraying the workers as untrustworthy.

Mitsuye Endo, a 22-year-old typist with the Department of Motor Vehicles, dutifully answered the questions, and that spring she was fired, along with dozens of other Nisei, or second-generation Japanese-Americans, who worked for the state.

Although born in the United States, Nisei were accused of holding Japanese citizenship as well, a sign to many Americans of potential disloyalty. Their attending Buddhist schools and their ability to read and write Japanese raised suspicions only further.

“We were given a piece of paper saying we were suspended because we were of Japanese ancestry,” Endo said in the only interview she ever gave, to John Tateishi, for his book “And Justice for All: An Oral History of the Japanese American Detention Camps” (1984).

By then President Franklin D. Roosevelt had signed Executive Order 9066, ordering the internment of about 120,000 Japanese-Americans in camps throughout the country.

Endo, who was interned with her family, would go on to become the chief plaintiff in the only United States Supreme Court case to successfully challenge Japanese incarceration during World War II. Three similar Supreme Court cases failed, most notably Korematsu v. United States, in which the justices upheld the restrictions placed on Japanese-Americans.

In Endo’s case — Ex parte Mitsuye Endo — the court unanimously ruled on Dec. 18, 1944, that the government could not detain citizens who were loyal to the United States.

Yet Endo, an unassuming woman, would never seek the spotlight, and by the time of the ruling she had never set foot in court.

Read the story on NY Times

#ChangeLawyers Incarcerated people need a different kind of lawyer

The following story was written by Peter Borenstein, a lawyer and founder of Restorative Justice Fund (RJFund), a nonprofit justice reform incubator based in Los Angeles.

Tears were streaming down the man’s face, and the interview room in which we’d been sitting across from each other didn’t have any tissues.

“They wouldn’t give me clean bandages for my hand! I was just walking around with this infected, bloody rag, begging them to help! They just laughed at me! Shouldn’t they pay for that? Shouldn’t I get something for that?”

​Our conversation was taking place inside a California penitentiary, with its endless fences topped with barbed wire and guards with rifles perched atop their towers.

This man was a prisoner and had sent me, a lawyer who does civil lawsuits, a heartbreaking letter that said he had been ignored while an injury became gangrenous. He wanted to sue the prison in court for the utterly preventable harm he said he’d endured.

He reached out to me because I primarily work with incarcerated and formerly incarcerated people. My practice focuses on helping them recover assets stolen from them as a result of their long-term prison stints—a huge problem among inmates who prepare to come home only to find that the money or the house they thought would be waiting for them has disappeared.

I like to think of myself as a legal problem-solver for incarcerated people. Identifying the problems to solve is often the hardest part. My heart goes out to the people whom I’ve been able to get to know and from whom I’ve learned about the struggles they face to stay alive in a prison cell for decades.

I make a point of visiting as many people who contact me from inside prison as I can, although these in-person meetings are the hardest. Inevitably, the trauma that prisoners have experienced throughout their lives, from growing up around violence, to the memory of their crime or crimes, to their time as part of the criminal justice system, bubbles to the surface.

And I’ve found that this type of lawyering requires a different skill-set than what we might normally expect from lawyers. We have to identify how trauma is influencing people’s legal decision-making. We have to set realistic expectations about what can and can’t be achieved in court. And we have to clearly explain how the civil justice system works (as opposed to the criminal justice system) so that we don’t set them up for a sudden realization that no justice will be had.

I began slowly: “Obviously, something terrible happened to you, and the prison doctors and nurses were wrong to ignore you. They did something wrong and caused you a lot of pain. But you’re sitting here in prison; you know that terrible things happen all the time and that the legal system isn’t always the best way to get justice done.”

Working with prisoners, I’ve found the simple act of acknowledging what they have been through to be an important part of the process, regardless of whether or not we move forward with litigation. It helps a potential client feel safe, slow down and gain some perspective. Meanwhile, it helps me clarify what the client’s needs are. Sometimes they just need to be heard.

My clients have amazing, often disturbing personal stories, studded with unbelievable violence and long-festering emotional wounds and resentments. It’s crucial to show compassion in order to even consider building a healthy attorney/client relationship.
Now, the man had stopped crying and was looking down into his lap.

“Also,” I said, “if we’re talking about suing prison doctors, we’re talking about the civil legal system, which is different than what you might be used to. You’ve been fighting your criminal case for years. This is something else.”

I ripped a piece of paper from my legal pad and began drawing a simple picture showing how a lawsuit progresses, from filing a complaint, to discovery, to motions, all the way to trial. I wasn’t being condescending, I sincerely hoped, but was trying to be completely transparent on how long the path would be.

“Now,” I continued, “even if we filed this lawsuit tomorrow, we’d be litigating it for two, maybe three years before we even got to a trial, if we ever got to a trial. During this time, it wouldn’t really be about what happened to you; it’d just be a lot of lawyers writing stuff, arguing about rules that determine whether we could move forward.”

Many of my clients spend decades as criminal defendants; a not-guilty verdict is virtually impossible in the plea-bargaining system, and the only “wins” for them are marginal reductions in their prison time. A civil lawsuit may mark the first time they are plaintiffs, “controlling” the legal proceedings. That is a powerful feeling, but it also engenders false hope.

“This thing happened to you four years ago, right? So that’s also a ding against you: It was a long time ago and you’re only talking to a lawyer right now. That’s not your fault, but there’s probably a statute of limitations issue, which means that you may have waited too long…”

The man was still looking at my drawing. Without looking up at me, he said, “I was molested when I was a kid. I got into gangs and drugs, bad stuff. I did something bad to get in here, I’ll admit it. But I had no chance, man. No chance from the start.”

Now he looked up from the paper and straight at me. “I’ve been losing all my life. I just want to win at something. I’ve got witnesses who will testify for me. I’ve got the paperwork, the names of the nurses and the doctor. They’re still here! I just want to win, for once! Please!”
I sat there stunned. I felt humbled and thrown off-track from my usual spiel.

Read the story on The Marshall Project

More of This A judge had choice words for the Proud Boys he sent to prison 

Two members of the Proud Boys, a neo-fascist street-fighting gang, will spend four years in prison for brawling with protesters on the Upper East Side of Manhattan last year.

Maxwell Hare, 27, and John Kinsman, 39, were sentenced Tuesday by State Supreme Court Judge Mark Dwyer, who said that the hefty sentence was, in part, intended to discourage extremists from rallying in New York in the future.

“I know enough about history to know what happened in Europe in the '30s when political street brawls were allowed to go ahead without any type of check from the criminal justice system,” Dwyer said, according to the Times. “We don’t want that to happen in New York… especially at this time in the country when people are so divided.”

The melee occurred in October 2018, after Proud Boys founder Gavin McInnes spoke at the Metropolitan Republican Club. MAGA-hatted Proud Boys wearing their trademark black-and-yellow Fred Perry polo shirts roamed the streets, shouting homophobic slurs and beating up protesters.

Hare and Kinsman were convicted in August on charges of rioting, attempted assault, and attempted gang assault in August.

Prosecutors had to rely on video footage of the violence to secure a conviction, because the four victims, who were masked, didn’t testify or talk to police. Based on video, they concluded that Kinsman was the most violent of the group, and Hare threw the first punches.

Read the story on Vice News

Say It Louder

Outrageous: Today, nearly 3 years into Trump’s presidency, @senjudiciary considered the FIRST Latinx circuit court pick since Trump took office. He's nominated ZERO African Americans to the circuit courts.

Pay attention. His white-washing of the bench is too important to ignore.

— Vanita Gupta (@vanitaguptaCR) October 16, 2019

Less of This The Supreme Court doesn’t understand transgender people

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The following was written by Alexander Chen, a transgender civil rights lawyer working for the National Center for Lesbian Rights and the first openly transgender editor of the Harvard Law Review.

Not a single transgender attorney I know felt that the Supreme Court displayed even a basic understanding of transgender people on Oct. 8 when it heard arguments in three blockbuster cases addressing whether workers can be fired for being gay or transgender under federal law. Two of the cases, Bostock v. Clayton County and Altitude Express Inc. v. Zarda, involve men who were fired when their employers found out they were gay. The third, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, involves Aimee Stephens, a transgender woman who was fired when she told her employer that she was a woman and, after an interval to begin gender transition treatment, intended to begin presenting as female at work. Although all three cases concern employment discrimination, they have far-reaching implications for whether LGBTQ people will be protected under similar federal laws prohibiting housing, health care, and education discrimination. Unfortunately, many observers came away with the impression that the court may be more likely to protect gay than transgender workers. The court’s palpable discomfort with transgender people displayed striking similarities to its discomfort about gay people in 1986 when it heard a landmark gay rights case called Bowers v. Hardwick.

In Bowers, the Supreme Court upheld a Georgia sodomy statute used to prosecute Michael Hardwick and a male companion for engaging in consensual sex in Hardwick’s home. In a 5–4 decision, the court rejected any notion that the Constitution “confers a fundamental right upon homosexuals to engage in sodomy.” It was not until 2003 that the Supreme Court revisited that decision in Lawrence v. Texas, which recognized that same-sex couples enjoy the same constitutionally protected right to sexual autonomy as others, and which laid the groundwork for the court’s 2015 decision striking down state laws barring same-sex marriage in Obergefell v. Hodges.

At oral argument in Bowers, Hardwick was represented by Laurence Tribe, a renowned constitutional law scholar and Harvard Law School professor. Tribe argued that Georgia’s sodomy law was unconstitutional because it violated the right of consenting adults to engage in sexual conduct in the privacy of their own homes, relying heavily on Stanley v. Georgia, a 1969 case in which the Supreme Court held that it was unconstitutional to criminalize the private possession of pornographic material. Tribe’s strategy reflected the prevailing wisdom of the time—and the consensus of Hardwick’s legal team—that in 1986, the justices of the Supreme Court were not ready to recognize the inherent dignity and worth of gay relationships. Even if some of the justices saw gay relationships as shameful or sordid, Tribe’s argument provided a way they could still rule in Hardwick’s favor, just as they had protected Stanley’s right to view pornography.

Predictably, however, that strategy invited the justices to focus on the constitutionality of prohibiting same-sex intimacy outside of the home. Would the same constitutional protections apply, Justice Lewis Powell asked, if the sodomy had occurred in the back of a car? What about a public restroom? Or a hotel room in which two men were staying overnight? Tribe answered that constitutional protections might not apply in any of those places, but he didn’t know exactly where the line should be drawn. Having rooted constitutional recognition for gay relationships in the privacy of the home, he was unable to explain why gay couples should have the right to broader legal protections in our society.

Tribe’s strategy failed. Rather than recognizing a limited right to same-sex intimacy in the home, the court said that the Constitution did not protect such intimacy at all. By comparing gay intimacy to adultery, incest, and other “sexual crimes” that did not deserve legal protection, the court embraced and reinforced the dehumanizing stigma attached to gay people and same-sex relationships.

Read the story on Slate

Speaking Of… Nobody should favor life without parole for a child

The following op ed was written by Gideon Yaffe, the Wesley Newcomb Hohfeld Professor of Jurisprudence, professor of philosophy, and professor of psychology at Yale.

Over the past 20 years, the Supreme Court has set significant limits on how severely juveniles can be punished for serious crimes. Wednesday, the court is hearing arguments in a case that will determine whether the trend toward leniency continues, as it should, or is cut short.

In recent years, the court has ruled that the Constitution bars not only death sentences for children who commit murder but also sentences of life without parole for terrible crimes that fall short of homicide. The court’s reasoning is uncomplicated: People younger than 18 are too immature to be fully responsible for their crimes. But there’s a flaw in that rationale that might provide an opening for the court’s conservatives to exploit.

The court’s 2012 step toward leniency, Miller v. Alabama, created some confusion. In Miller, the court ruled that a mandatory sentence of life without parole is unconstitutional for someone who was under 18 at the time of the offense—even if that offense was a horrific murder. This decision left unanswered questions: Was the court unhappy about the mandatory nature of the sentence—about denying judges the discretion to impose lighter penalties? Or did the court believe that a sentence of life without parole was excessive for any kid, whether or not the judge had a choice about imposing that sentence?

The new case will settle these questions, and it involves one of the most notorious murder sprees in our nation’s history. Lee Boyd Malvo, in thrall to a father figure named John Muhammad, participated in killing 17 people and severely injuring another 10 in a cross-country crime spree culminating in the so-called “Beltway sniper” attacks in October 2002. Unlike Muhammad, Malvo escaped execution thanks to his age: He was 17 at the time of the crimes. Although the judge had discretion to impose a lesser penalty, he instead chose to sentence Malvo to life without parole. The question before the Supreme Court now is whether Malvo’s discretionary sentence of life without parole is unconstitutional. The stakes are high for those hundreds of people who committed murder as kids and are now serving discretionary sentences of life without parole.

As a matter of conscience, nobody should favor a sentence of life without parole for a child, no matter what that child has done. As juvenile advocates often say, life without parole sentences a child to die in prison. That we continue to impose such punishments on children puts us at odds with every nation whose criminal justice policies we should emulate.

Read the story on Slate

Work for the Alameda County Public Defender's Office
With financial support from California ChangeLawyers, the Alameda County Public Defender seeks to hire its first Federal Litigation Fellow to provide pro bono representation to immigrants facing deportation in affirmative federal challenges before U.S. District Courts.

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Work at Movement Law Lab
From understanding history and theories of social change, to navigating the courts and the media, to drafting legislation and litigation on behalf of individuals and organizations—being a movement lawyer requires more skills than ever before.

The Director of Training is a key position in MLL’s growing team. This person will be the chief architect of the Lab’s training interventions to increase the quality and scale of movement lawyering. This person will work closely with the Executive Director, Purvi Shah, and the Lab’s partner organizations. 

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