Wednesday September 4, 2019

#ChangeLawyers This lawyer fought Arpaio’s raids in Arizona. Now he’s taking the fight to ICE nationwide.

Phoenix immigration attorney Ray Ybarra Maldonado was headed back to his office when he was rocked by images on his Facebook page of federal immigration officers raiding chicken processing plants in Mississippi.

One video showed friends, co-workers and family waving to buses filled with some of the 680 undocumented workers, mostly Guatemalan immigrants, arrested in the raids, one of the largest in U.S. history.

Ybarra said the images of the Aug. 7 raids instantly reminded him of similar work-site raids that took place several years ago in Arizona by the Maricopa County Sheriff's Office under former Sheriff Joe Arpaio. 
Ybarra represented several workers arrested in the Arpaio raids, which took place from 2008 to 2015, resulting in the arrests of hundreds of undocumented workers.  

"It just immediately brought me back to the things we saw here in Arizona under Arpaio," Ybarra said. "I think I just sat in my car and cried for a little bit, just remembering having the flashbacks of the families in my office crying and visiting people in detention and just hearing their stories. I just saw it happening all over again, just not in Arizona.”

Two days later, Ybarra was on a flight to Mississippi, despite coming down with a flu-like illness he believes was triggered by his emotions.
Ybarra is now representing three people arrested as a result of the Mississippi raids pro bono, meaning for free.

He said he wanted to share the legal expertise he gained representing workers in the Arpaio raids. 

"I was like, 'We've lived through this. I've been an attorney, I've defended raid cases in criminal court. I've defended people in the immigration proceedings after the criminal cases,'" Ybarra said. "I know how to do these cases and probably in Mississippi there is not a whole lot of Spanish-speaking or Latino attorneys that have that same amount of experience, so I kind of felt I had a duty to come and get on a plane and help out." 

Read the story on AZ Central

More of This

Immgrtion judge today:
“The hardest part for many asylum seekers is starting over. You leave everything behind and have to start a new life in a new place, and not because you wanted to but because you had to. I will grant your family’s application for asylum. Welcome to the US” pic.twitter.com/kCI4sG8u6n

— Luis Cortes Romero (@LCortesRomero) August 29, 2019

Luis Cortes is a DACAmented lawyer who represents refugees, asylum seekers, and immigrants. He was born in Mexico.

Even More of This I’m a prosecutor and I believe “public safety” is a myth

The following editorial was written by Rachael Rollins, the district attorney of Suffolk County, Massachusetts.

For time immemorial, we have been told that our communities are safer with each criminal that our local law enforcement locks up—often for low-level offenses like drug possession, shoplifting, or loitering. 

The problem with this narrative is that it’s largely false, predicated on a pervasive and pernicious myth known as “broken windows” theory. It’s an anecdotal, fact-free approach perpetuated by an old guard in law enforcement who use fear to justify actions that, rather than increasing public safety, end up creating and reifying divisions in our communities. This approach is not the answer: “Broken windows” is, and has always been, broken.

I am a prosecutor who ran for office to challenge this and other myths, and the people who have wielded them for way too long. I have seen firsthand the devastating effect that violence and mass incarceration have on families and communities, especially those of color, and I promised voters that I would bring transformational change to the criminal justice system. 

This change has included a reinvestment strategy within my office to utilize our limited resources to focus on violent crime and homicides, both solved and unsolved. It includes an unprecedented community engagement effort that works collaboratively with external partners, including the public school system and law enforcement, to address the root causes of criminal behavior. My challenge—our challenge—must be overcome collaboratively. And I will use my position and office with great intention and passion. Our work is urgent.

And I am working with urgency to fulfill those promises I made to the community. For example, my office has moved away from cash bail and set policy to sharply limit use of pretrial detention. We have published a list of 15 offenses, such as drug possession and driving without a valid license, for which even if the police make an arrest, the office will generally decline to prosecute the case criminally—often seeking restitution, treatment, or consequences other than incarceration instead. And I am not alone. There is a strong and growing movement to elect prosecutors and sheriffs across the country who are willing to make these bold changes. 

In Suffolk County, our primary law enforcement partner, the Boston Police Department, has achieved nearly historical lows in arrests while also reducing crime. These simultaneous accomplishments speak to the department’s commitment to policies that prioritize the well-being of the communities they serve. And our county’s elected sheriff has implemented promising treatment and rehabilitation programs at our jail and house of corrections—programs that pick up the pieces where our public health and education systems and every other safety net have failed. But even the successes we’ve seen in Boston still present opportunities for new approaches to criminal justice.

The issues that I speak of are larger than any single jurisdiction. Mass incarceration is not just a set of local or national policy choices; it is a style of politics that prosecutors like me are seeking to disrupt. Unsurprisingly, the old guard and their powerful political allies are fighting back—often with the assistance of an unquestioning or sensationalist media—to preserve the decades-old structures of power and privilege that benefit them. 

Read the story on The Appeal 

Less of This The federal government is coming for progressive prosecutors

Following a mass shooting in Philadelphia last week that wounded six police officers and left a neighborhood traumatized, William McSwain, U.S. attorney for the Eastern District of Pennsylvania, broke from tradition. Rather than offering thoughts and prayers for the wounded or promising to keep guns out of the hands of criminals, he railed against a specific actor he holds responsible: Philadelphia’s district attorney, Larry Krasner, widely considered the most progressive prosecutor in the country.

“The crisis was precipitated by a stunning disrespect for law enforcement—a disrespect so flagrant and so reckless that the suspect immediately opened fire on every single officer within shooting distance,” he wrote in a public statement released the day after the shooting. He blamed the attack on “lawlessness” fostered by Krasner and a culture that degrades police officers. Krasner brushed off the diatribe as “a familiar bit of opportunistic politics” from the Trump administration.

The dramatic standoff between a man with an AR-15 and Philadelphia police officers lasted more than seven hours. Police deployed tear gas, and the shooter ultimately surrendered after a series of phone calls with his lawyer, Philadelphia Police Commissioner Richard Ross, and Krasner. No officers were killed, and no bystanders were injured. McSwain was also on the ground.

The statement was met with surprise; it’s highly unusual for federal prosecutors to openly criticize their local counterparts. But Krasner is no ordinary DA, and McSwain is just one of many “tough on crime” politicians across the country who see him as a threat.

Krasner’s election was the most high-profile success for the progressive prosecutor movement, which seeks to elect district attorneys who recognize the harms of mass incarceration and overprosecution. During his year and a half in office, Krasner, a former civil rights and defense attorney, has used the considerable power of his office to implement policies to reduce rates of incarceration, including amping up the use of diversion programs, scaling back pretrial detainment, and cutting down the length of sentences. He has inspired a growing cohort of prosecutors elected since 2016 on campaigns to reduce rates of incarceration.

This was just the latest chapter in McSwain’s months-long campaign against the Philadelphia DA. He has bad-mouthed Krasner on Fox’s Tucker Carlson Tonight in March and in June, accusing him of causing violent crime to “skyrocket” and tying him to the liberal billionaire George Soros’ “radical agenda.”

In February, McSwain brought federal charges to a gun case after Krasner offered a plea deal he found too lenient. McSwain also claimed in his statement that his office took As prosecutors like Krasner gain more traction with voters, they’ve elicited a backlash that now goes all the way up to the nation’s top law enforcement official. Last week Attorney General William Barr denounced all reform-minded prosecutors at a national Fraternal Order of Police conference in New Orleans, calling “reformer” DAs “anti–law enforcement DAs.”

“70% more violent crime cases this year than we did last year, in response to the District Attorney’s lawlessness.” A spokeswoman for Krasner’s office disputed this, saying she could only find one documented case that could be considered violent where the U.S. attorney filed charges after the DA. McSwain’s office did not immediately reply to a request for data to back up the stat.

“Lawlessness” is a stretch. Overall crime dropped about 5 percent after Krasner’s first year in office, according to NPR. Homicides rose 12 percent, from 315 in 2017 to 353 in 2018, which police officials attribute to the opioid crisis.

As prosecutors like Krasner gain more traction with voters, they’ve elicited a backlash that now goes all the way up to the nation’s top law enforcement official. Last week Attorney General William Barr denounced all reform-minded prosecutors at a national Fraternal Order of Police conference in New Orleans, calling “reformer” DAs “anti–law enforcement DAs.”

Barr, who in 1992 authored “The Case for More Incarceration,” told conference attendees that the rise of “District Attorneys that style themselves as social justice reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law,” is “demoralizing to law enforcement and dangerous to public safety.”

Read the story on Slate 

Less of This Too The quiet, radical takeover of State Supreme Courts

Democratic presidential candidates are mostly tiptoeing around the idea of court-packing, toying with the idea of adding seats to the U.S. Supreme Court without committing to a real plan. But while 2020 hopefuls avoid endorsing such a scheme, Arizona Republicans have already enacted one: They not only packed their state Supreme Court but rigged the nomination process to ensure more favorable outcomes for the GOP. It’s just the latest example of Republicans capturing a state judiciary through the kind of brute-force politics that Democrats still shy away from.

These machinations, led by Arizona Republican Gov. Doug Ducey, may soon deliver a state Supreme Court seat to Maricopa County Attorney Bill Montgomery, a reactionary whose tenure has been plagued by scandal and lawsuits. Montgomery has fought against progressive reform at every turn. He is a fierce foe of LGBTQ equality as well as a staunch defender of the death penalty, the drug war, and mass incarceration. In 2015, he told a Vietnam War veteran that he was “an enemy” because he used marijuana, adding, “I have no respect for you.”

The prosecutor would seem to be a long shot for the position. Arizona’s Constitution, after all, has a built-in safeguard to prevent extremists like Montgomery from joining the bench. State Supreme Court justices are chosen by an appellate court commission whose members are selected by the governor and confirmed by the state Senate. The state constitution requires lawmakers to “endeavor to see that the commission reflects the diversity of Arizona’s population.” Pursuant to this command, the governor has long selected a mix of Democrats and Republicans for the commission, which puts forth a shortlist from which the governor must choose a justice.

Ducey, however, has taken steps to rig the judicial process in favor of ultraconservatives like Montgomery. First, the governor packed the court, adding two seats to swing it rightward. (Chief Justice Scott Bales declared at the time that the expansion was entirely unnecessary.) None of Ducey’s justifications for the court-packing plan have proved true: The court is now completing fewer cases, and while Ducey called for “more voices” on the bench, he has exclusively appointed men. The new “voices” come from male judges whose views align with Justice Clint Bolick, another Ducey appointee and an arch conservative who wants to demolish the New Deal.

Second, Ducey replaced several Democrats on the nominating commission with putative independents who, in reality, have deep ties to the Republican Party. Today, there are zero Democrats on the 15-member commission. Ducey appears to have altered the commission’s makeup with an eye toward elevating Montgomery. Earlier this year, when Montgomery applied for an open seat on the Arizona Supreme Court, the commission voted him down 7–5 after criticizing his lack of experience, his clear ideological bent, and his office’s culture of misconduct. Ducey promptly replaced Montgomery’s opponents on the commission with Republicans or Republican-affiliated “independents.”

When Bales announced his retirement in March, Ducey’s new commissioners did what they were likely appointed to do: They put Montgomery on the shortlist, effectively reversing the commission’s earlier conclusion that he was not qualified. Ducey has yet to announce his selection, but given that he and Montgomery are longtime allies, it’s quite possible that the prosecutor may soon wind up on the high court. After Sen. John McCain died in 2018, Bolick—in an unusual and improper move--urged Ducey to appoint Montgomery to the empty Senate seat. “I share your admiration of Bill. He is one of our finest,” the governor responded.

Many Arizonans would contest Ducey’s assessment of the prosecutor. Montgomery’s career has been defined in large part by startling cruelty toward minorities, especially LGBTQ people. After a federal court struck down Arizona’s ban on same-sex marriage, Montgomery refused to let his office provide free legal assistance to gay couples seeking to adopt children. State law expressly granted free legal assistance to married couples hoping to adopt, but Montgomery insisted that it could only apply to opposite-sex couples. To ensure that the state would not have to help same-sex couples, Montgomery then lobbied the Legislature to repeal this right altogether. He wished to revoke all couples’ right to such assistance just to ensure that same-sex couples could not receive it.

Read the story on Slate 

Perspective Many lawyers work for big law out of need. Don’t ban us from becoming judges. 

The following op-ed was written by Erika Stallings, an attorney and freelance writer based in New York City.
​
After graduating from Georgetown University Law Center in 2010, like many newly minted graduates, I started my legal career at a large corporate law firm headquartered in New York. I spent the first six years of my career working at law firms before transitioning to an in-house role at a music licensing organization. I was surprised to learn last week that, solely because of my professional background, I should be disqualified from ever serving as a federal judge.

In a piece published in the Atlantic last Wednesday, Brian Fallon and Christopher Kang, co-founders of the progressive organization Demand Justice, urged the next Democratic president to refrain from nominating anyone who has served as a “corporate lawyer,” meaning a “Big Law” partner or an in-house counsel at a large firm for a federal judgeship. The group believes that the number of judges with such experiences creates an “insular, back-scratching network of legal elites who work together to promote corporate interests.” But not everyone who works at a corporate law firm is the same. And in trying to purge corporate influence from the judiciary, Demand Justice risks making the ranks of judges more homogenous in another way: namely, whiter and richer.

I can say this from experience. My decision to accept an offer in Big Law was not driven by any allegiance to corporations or any Machiavellian analysis of whether it would be a springboard for future political ambitions. Instead, it was a matter of practicality. To have enough money to pay off my student loan debt, which totaled more than $100,000 after three years of legal education, and send money home to support family members, I needed the six-figure salary that my firm was offering. Big Law offered an opportunity to earn enough money to lift myself, and by extension my family, out of poverty and into the middle class. When I left private practice, I briefly considered transitioning to a position at a nonprofit or a foundation. But as the first in my family to graduate from law school, I can’t afford the pay cut associated with such a career path.

Many attorneys of color are in the same position. In 2013, a special report written by the Illinois State Bar Association found that black and Hispanic law students are more likely to have student loan debt and are also more likely to have higher amounts of debt than their white counterparts. Another study conducted by the Center for Postsecondary Research at Indiana University found that 61 percent of black law student graduates had accumulated more than $100,000 in student loan debt compared with only 40 percent of white students.

According to the Illinois State Bar Association study, the prospect of such debt discourages black and Hispanic students from applying to law school in the first place. If there are fewer black and Hispanic lawyers because of these financial burdens, and those who pass the bar exam carry higher debt loads, Demand Justice’s standard could shrink the ranks of potential black and Hispanic judges still further.

In fact, Demand Justice’s proposal would have prevented a number of President Barack Obama’s historic appointments to the federal judiciary.

Justice Sonia Sotomayor, who became the first Latina judge on the Supreme Court and who has frequently ruled in favor of employees and unions, would have been disqualified from service. So would Loretta Copeland Biggs, who became the first black woman to serve on a federal court in North Carolina in 2015, and previously worked as a partner at Davis, Harwell & Biggs. The proposal would also exclude Lucy Koh, who is the first Korean American Article III judge. Although Koh worked as a partner at McDermott Will & Emery representing technology companies, as a judge she has not hesitated to hold some of those same companies accountable for engaging in anti-competitive behavior. In May, she upheld a finding by the Federal Trade Commission that Qualcomm violated antitrust law by refusing to supply semiconductor chips to companies unless they also licensed Qualcomm’s patents.

Read the story on Washington Post

Podcast of the Week Who need lawyers?

Dahlia Lithwick is joined by Rebecca Sandefur, who turns a sociologist’s eye to civil justice. Civil justice problems can lead to bankruptcy, homelessness, illness, family separation, and poverty, but Sandefur says what makes it to the courts is just the “tip of the civil justice iceberg.”