Monthly Archives: January 2017

Malevolence Tempered by Incompetence

That’s the summary of the Trump immigration order by Benjamin Wittes of the Brookings Institute in “Lawfare” today. Wittes dissects the drafting of the purpose clause, the lack of connection between the stated purpose and the order itself, and a number of other inconsistencies and mysteries including:

-Sec. 3(c) bans “entry”—which to the best of my knowledge has had no meaning in the Immigration and Nationality Act (INA) since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. Pre-IIRIRA law did use the term “entry,” but that is no longer the case.

-Section 3(g) talks of waivers on a case-by-case basis for people who are otherwise denied visas or other benefits under the immigration laws pursuant to the order. If a person needs a waiver to obtain “other benefits,” does that mean that nationals of the seven countries are denied any benefit under the INA without a waiver, benefits such as naturalization, adjustment of status, or temporary protected status, even if they are already in the US?

-On its face, the order bars entry of both immigrants and non-immigrants. Again, as entry is not defined, and no one was given any time to draft implementing guidance or to clarify any points, it’s no surprise that Customs and Border Protection doesn’t seem to know how to apply it to lawful permanent residents (LPRs). The INA, at section 101(a)(13)(C), says that green card holders will not be deemed as seeking admission absent the factors enumerated therein—factors that do not include an executive order banning entry. Yet Reuters and The Guardian are both reporting quotations from a DHS public relations official, stating that the order does apply to LPRs.


Why Sanctuary City Order is Unconstitutional

Yesterday’s excellent article by Ilya Somin in the Washington Post clearly explains the constitutional problems with the new president’s executive order on sanctuary cities:

  • Supreme Court precedent mandates that the federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” Few if any federal grants to sanctuary cities are explicitly conditioned on compliance with Section 1373. Any such condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive cannot simply make up new conditions on its own and impose them on state and local governments. Doing so undermines both separation of powers and federalism.
  • Section 1373 is itself unconstitutional. The Supreme Court has repeatedly ruled that the federal government may not “commandeer” state and local officials by ordering them to enforce federal law. Such policies violate the Tenth Amendment.

NCAA “No Felons” Rule Challenged

A Federal Court of Appeal in California heard oral argument this month in the case of  Dominic Hardie, a basketball coach with a 15-year old conviction for possessing less than a gram of crack cocaine. A former college basketball player, Hardie served no time for the plea in 2001, and since has gotten a degree in social work, worked as an investigator for the child protective services agency in Texas, and started a girls basketball program in Houston that has sent 30 girls to college on scholarships.

But in 2012, the NCAA enacted a ban on anyone with a felony conviction participating in an NCAA-certified tournament, such as those where Hardie’s Triple D Hoops AAU team would play in front of Division 1 coaches. Now Hardie is alleging the ban has a disparate impact on African Americans, and challenging it as a violation of the Civil Rights Act.

Hardie himself commented on the oral argument: “Hearing a judge say, ‘That’s a penalty you’re going to have to pay for the rest of your life,’ that’s hard to hear. That’s why I’m fighting it. We’re talking about mass incarceration and disparate impact. Hopefully we can change these prehistoric laws which pretty much everybody has concluded are ridiculous.”

CJ Roberts On Texas Voter ID Law

The Supreme Court today declined to review the Texas voter id case, but Chief Justice Roberts suggested future review when the case is done in the lower court, and when, it is likely, there will be five conservative votes yet again on the Supreme Court:

“The Texas officials who are defendants in this lawsuit have petitioned for certiorari. Their petition asks the Court to review whether the Texas Legislature enacted SB14 with a discriminatory purpose and whether the law results in a denial or abridgment of the right to vote under §2. Although there is no barrier to our review, the discriminatory purpose claim is in an interlocutory posture, having been remanded for further consideration. As for the §2 claim, the District Court has yet to enter a final remedial order. Petitioners may raise either or both issues again after entry of final judgment. The issues will be better suited for certiorari review at that time.”

It seems likely that in this Texas case and in the North Carolina voting case (cert. petition still pending), the Court will eventually limit Section 2 of the VRA, making it harder to challenge voting restrictions laws and allowing more Republican legislatures to enact similar laws.

Mental Health Training Only Half The Answer

A story in the New York Daily News highlights one of the many challenges for law enforcement in handling mental health issues in the community: although the NYPD has more than 4,000 specially trained cops to deescalate incidents involving the mentally ill, but they’ve been woefully ineffective in getting the officers to critical scenes. According to the report by NYPD Inspector General Philip Eure, dispatch hers don’t know were members of the Crisis Intervention Team, or CIT, are when they field 911 calls related to a “mental crisis.”

“911 dispatchers cannot assign CIT-trained officers to crisis calls because they have no way of determining which patrol cars in the field contain CIT-trained officers,” the report found. “This is highly problematic.”

The NYPD gets more than 400 per day  regarding people who are emotionally disturbed.

Criminal Justice Reform – 2016 Review

A report from the Sentencing Project examines reforms adopted in 17 states targeted at reducing prison populations and addressing collateral consequences for persons with criminal convictions.

Amongst the highlights: In Maryland, House Bill 1312 repealed mandatory minimum sentences for nonviolent drug crimes, established graduated sanctions short of reimprisonment for parole and probation violators, and increased prison credits for completion of educational programs. In Oklahoma, voters passed State Question 780 (by 57%), which reclassified drug possession and low level property offenses to misdemeanors instead of felonies, and State Question 781, which allows counties to use money saved from sending fewer people to prison under SQ 780 to fund community rehabilitation programs.

And Delaware, Maryland, and Virginia addressed felony disenfranchisement. Nationally, 6.1 million persons are disenfranchised from voting due to felony convictions.  Since 1997, 23 states have changed laws improving enfranchisement policies for persons with felony convictions. Last year in Delaware Senate Bill 242mandates that individuals no longer have to pay off their fines and fees in order to vote. In Maryland lawmakers overrode the governor’s veto of House Bill 980 and authorized voting for an estimated 40,000 people on probation or parole. In Virginia Governor McAuliffe issued executive orders restoring voting rights to 70,000 persons.


It Begins

The DOJ has asked for a one-month continuance the Texas voter ID case. The motion, which is opposed by the private plaintiffs in the case but supported by the state of Texas, asks for the extension for the following reason: “Because of the change in administration, the Department of Justice also experienced a transition in leadership. The United States requires additional time to brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.”

Rick Hasan’s “Election Blog” expects that in both the North Carolina and Texas voting cases pending in the Supreme Court and  in the district court,  the DOJ will switch positions and side with the states – and against the voting rights plaintiffs.- that passed restrictive voting rules

ADA in the Criminal Justice System

The DOJ has issued guidelines for application of the Americans with Disabilities Act in the criminal justice system. The report, “Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act,”explains how Title II of the ADA applies to individuals with mental health disabilities and intellectual and developmental disabilities in the criminal justice system.  Under the ADA, state and local government criminal justice entities—including police, courts, prosecutors, public defense attorneys, jails, juvenile justice, and corrections agencies—must ensure that people with mental health disabilities are treated equally and are afforded equal opportunities to benefit from safe, inclusive communities.  Nondiscrimination requirements, such as providing reasonable modifications to policies, practices, and procedures and taking appropriate steps to communicate effectively with people with disabilities, also support the goals of ensuring public safety, promoting public welfare, and avoiding unnecessary criminal justice involvement for people with disabilities.

The report includes examples of instances where improved coordination and collaboration between criminal justice entities and disability service systems has generated positive community outcomes, improved policies, and more effective training.

National Democratic Redistricting Committee

The NDRC is a new project chaired by former Attorney General Eric Holder with a  goal of producing fairer maps in the 2021 redistricting process. The committee will coordinate party organizations on a multi-cycle, state-by-state redistricting strategy ahead of the 2020 Census.

“This redistricting process will be critical to the future of our democracy,” Holder said. “Those who control state governments draw the lines that shape Congress for the next decade. Fixing this redistricting problem will involve not just focusing on the lines, but focusing on the larger effort to win back governance. This is the path to ensuring Democrats have their rightful seats at the table in 2021.”

The NDRC will target races in every election cycle through 2020 – including gubernatorial, state legislative and ballot initiative campaigns where Democrats can produce fairer electoral maps in 2021. Holder highlighted these major focal points in a speech at the Center for American Progress Action Fund, including:

1. ELECTORAL – The NDRC will coordinate and support the critical state-based electoral work led by the Democratic Legislative Campaign Committee and Democratic Governors Association to identify and invest in key down-ballot races with redistricting implications.

2. LEGAL – The NDRC ensures that ongoing infrastructure is in place and adequately resourced to guide a proactive legal strategy using data, technical, and map drawing resources.

3. BALLOT INITIATIVE – The NDRC will support state ballot reforms where this is the best strategy to produce fairer maps.

$282 Million

That’s the Opportunity Institute’s estimate of the cost of wrongful convictions and other failed prosecutions in California’s criminal justice system. The report 692 adult felony criminal cases from 2000–2012 where the defendant was convicted of felony or felonies, the convictions were reversed, and the charges were either dismissed or the defendant subsequently found not guilty on retrial. It examines the types of cases susceptible to error, the types of error that exist, and the direct costs of incarceration, representation, and compensation attributable to these cases and their ultimate resolution.