Monthly Archives: September 2016

Funding Public Defenders

The Pennsylvania Supreme Court has ruled that criminal defendants have the right to sue  a county  to prove a that public defender’s office isn’t adequately funded to provide the constitutional right to an attorney. The actual decision is here:

“We recognize for the first time in Pennsylvania a prospective cause of action enabling indigent criminal defendants to prove that the level of funding provided by a county to operate a public defender’s office has left that office incapable of complying with Gideon, creating the likelihood of a systematic, widespread constructive denial of counsel in contravention of the Sixth Amendment to the United States Constitution.”


Obituary for Criminal Justice Reform

From the Marshall Project:

“For some proponents of justice reform, the failure this year was actually a relief. They escaped what some had feared as the worst outcome: Congress enacting a diluted reform bill, declaring mission accomplished, and dropping the subject for years. Another consolation is the prospect that Hillary Clinton, who has vowed to “reform our criminal justice system from end to end,” wins, gets a somewhat less conservative Congress, and keeps her promise.”


“Terror” and Everybody’s Rights

That is the title of an excellent review by Judge Rakoff of “A War Like No Other: The Constitution in a Time of Terror.” The takeaway:

“Fiss’s discussion of the ways in which the war on terror has tended to impede our freedoms is by no means limited to the examples discussed above. His ten cogent essays cover everything from unfettered surveillance to secret watch lists to drone assassination—the common theme being that, in the absence of more effective judicial scrutiny, the government will always use the excuse of war to take authoritarian measures that no other excuse could hope to justify. Such measures might well be open to serious question even against the background of a conventional war. But the unique features of the war on terror—its uncertain legal status, its shifting, nonstate adversaries, its untraditional methods, its unclear goals, and its highly indefinite duration—all combine to make it difficult for the courts to intervene, even when they sense (as the Supreme Court did in its habeas decisions during the Bush administration) that the courts may be the branch of government best situated to place meaningful limits on the wide-ranging government activities supposedly justified by this strange war.

It is true that, even in the case of more traditional wars, US courts have been loath to intervene, both because of a reluctance to second-guess the commander in chief in a time of peril and because of a fear that curtailing the weapons of war could lead to defeat. What good is freedom, the thought goes, if it enables your enemy to make you his slave?

But quite aside from the fact that the war on terror is not that kind of war (threatening imminent invasion or mass destruction) and that the kind of measures we are here considering are not military decisions, we must always remember exactly what we are fighting for. The war on terror, for all its uncertainties, is in some respects a war of values: the monstrous methods of al-Qaeda, ISIS, and others are but a reflection of their authoritarian values and extremist ideologies. They hate us, not just because we are rich, but because we are, on the whole, free, liberal in thought, and humane in feelings. It would be ironic, and tragic, if in seeking to safeguard our security so as to preserve our values, we undercut, for now and for the future, the very values that make us so proud to be Americans.”

Suing for the right to vote

Read the class-action complaint from the Campaign Legal Center, challenging Alabama’s felon disenfranchisement:

“2. As detailed below, Section 177(b) of the Alabama Constitution, which disenfranchises individuals with convictions of felonies “involving moral turpitude,” is a direct successor to the Alabama’s 1901 racially discriminatory constitutional disenfranchisement provision. It is inextricably tied to Alabama’s long history of denying blacks citizens voting rights and equal access to the polls, using the criminal justice system to achieve those goals.

3. Soon after the Civil War and the passage of the Fourteenth and Fifteenth Amendments, Alabama began to use criminal disenfranchisement as a tool, hand-in-hand with convict leasing and other means, to deny blacks the right to vote and maintain white supremacy. Indeed, the explicit purpose of the 1901 Alabama Constitution was to formally “establish white supremacy.” The felon disenfranchisement system in Alabama continues to serve that purpose.

4. In 1985, the Supreme Court held that the drafters of the disenfranchisement provision specifically selected the vague and arbitrary “moral turpitude” standard in order to disenfranchise blacks. Nonetheless, in 1996, Alabama re-inserted that same standard into its felon disenfranchisement law, which remains to this day.

5. The Alabama Legislature has never determined what felonies “involve moral turpitude.” Yet the State of Alabama requires citizens to declare under penalty of perjury that they have not been convicted of a “disqualifying crime” in order to register to vote, stifling the registration of qualified voters.

6. The lack of any definition and the vagueness of this term has left the fundamental right to vote of hundreds of thousands of voters to ad hoc and arbitrary determinations by individual county registrars across the state.

7. The result is the disenfranchisement of approximately 7% of Alabama’s total voting-age population and 15% of Alabama’s black voting-age population.”

“Quarterbacking from the bench”

Interesting article on factors effecting judge’s decisions – in this case, whether their alma mater LSU won or lost an important game the week before. Bad news from the study – which analyzed more than 8,000 cases – for both the defendants who appeared after a loss, and for the idea of judicial impartiality. The article has strong connections to other, perhaps more striking studies on the impact of implicit bias on both judging and prosecutorial discretion:

“Robert J. Smith and Justin D. Levinson, “The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion,” Seattle University Law Review, 35 (2012): 806,, citing Task Force on Race and the Criminal Justice System, “Preliminary Report on Race and Washington’s Criminal Justice System,” Seattle University Law Review, 35 (2012): 647, “‘[E]ven after legally relevant factors . . . are taken into account,’ racial differences affect how cases are processed: whites are less likely to have charges filed against them.” Smith and Levinson also state, “Similarly, prosecutors have been shown to charge white and black defendants differently in homicide cases. See, Michael L. Radelet and Glenn L. Pierce, “Race and Prosecutorial Discretion in Homicide Cases,” Law and Society Review, 19 (1985): 587, (finding that the race of the defendant and victim mattered in charging decisions in Florida).”