Category Archives: Constitutional Law

California's Death Penalty System Is Broken Too

It is easy to be smug here in California, driving our hybrids, drinking our soy lattes, and condescendingly observing the executions in other states from afar. Troy Davis is executed in Georgia despite serious doubts about his guilt. Duane Buck comes within hours of execution in Texas despite a trial marred by racism. Rick Perry boasts about presiding over more executions than any other governor while the GOP faithful cheer him on. But California's death penalty scheme suffers from the same problems that plague other states. It is costly, arbitrary, discriminatory, and unworkable. It serves no useful purpose while diverting needed resources from true public safety programs. We would like to believe that our justice system reserves the death penalty for the "worst of the worst," but with a population over 700, California has the largest death row in the country — by far. And more often the determining factor for death sentences is not the nature of the crime, but race, geography and/or the quality of trial counsel. (See, e.g., Death Rattle For California, California's Dysfunctional Death Penalty, California's Unusually Cruel Death Penalty, State of Barbarism.) Due to the tangle of state and federal legal procedures intended to speed up and circumscribe the appellate process, we too have experienced executions in the face of new evidence raising questions about guilt. As an article in Sunday's San Francisco Chronicle observed, even assuming California provides greater protections than other death-penalty states, no state "can guarantee the guilt of everyone it has condemned. And none of California's due-process protections kept 42-year old Thomas Thompson from going to his death in 1998 for a murder he may not have committed." And then there is the cost. A study released in June by U.S. Court of Appeals Judge Arthur L. Alarcon found that California's death penalty system is currently costing the state about $184 million per year. Further, "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions." It is time to end the death penalty in California. Recent polling shows Californians' strong support for life without the possibility of parole as the ultimate punishment instead of the death penalty. These findings are in line with other polling data in California and nationwide. One of my colleagues put it this way: A lot have people have been moved to action by the Troy Davis execution. Close to home, Californians can do something: join the campaign to repeal the death penalty in California next year. California has its own unhealthy attachment to the death penalty. In 2009, LA County sentenced more people to death than the entire state of Texas, and the California Supreme Court has upheld almost every death sentence it has reviewed since [former Chief Justice] Rose Bird was ousted in the mid-1980s — a higher affirmance rate than in many southern states. Our Death Row has topped 700 — by far the largest in the country. Thankfully, executions here have been stopped by federal court review of the lethal injection process. Polling shows Californians would be willing to get rid of the death penalty on fiscal grounds, and now is the time to do it! The SAFE California campaign will start gathering signatures in October to put before the voters at the November 2012 election an initiative to replace the death penalty with life in prison without parole with work and restitution to victims through a victim compensation fund. The initiative also sets up the SAFE California fund which would set aside $30 million dollars every year, for three years, for local law enforcement. To get involved, to donate or for more information, click here... To continue reading this legal news please click Read full information...

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Why The Execution Of A White Supremacist Murderer Matters Too

By Ty Alper, cross-posted from Huffington Post Lawrence Russell Brewer Wednesday night, two men were executed. Georgia executed Troy Davis, an African-American man whose guilt in the 1989 murder of a white police officer was very much in doubt. And Texas executed Lawrence Brewer, a white supremacist who was unquestionably guilty of the gruesome dragging death slaying of a black man in 1998. In my mind, the two executions are tragedies of essentially equal proportion. Future generations will look back on the institution of capital punishment as we do the institutions of slavery, lynching, and Jim Crow. We condemn slavery not only because African men and women who had committed no crime were its victims, but because it is morally abhorrent for human beings to buy, sell, and own one another. So it is with the death penalty. I teach in a law school clinic that represents indigent men and women facing capital punishment. We teach our students how to vigorously and ethically defend our clients in high stakes, complicated cases that are fraught with emotion on all sides. The lawyers who fought for Troy Davis' life embody the zealous devotion to their client that we hope to instill in our students. I have the same respect for the lawyers in Texas who represent death row inmates in a state where the governor — a leading Republican candidate for president — draws cheers when recounting the hundreds of executions over which he has presided. Many of the 474 men and women Texas has executed since 1976 had committed the crimes for which they were convicted and sentenced to death. Some — like Cameron Todd Willingham, who was executed for an arson that fire investigators now believe was an accident — were almost certainly innocent. I'm not na├»ve about the power and relevance of innocence in this context. The fact that we cannot correct a wrongful conviction once a person is executed is among the many reasons to question the wisdom of capital punishment. And nobody could seriously dispute that the execution of an innocent person is "worse" than the execution of a guilty person. Yet, when I take a step back, and think about what we are actually doing, the difference between the two feels marginal. The death of James Byrd Jr. — the black man who was tied to the back of a pickup truck in Jasper, Texas and dragged to his death — is shocking to recall, almost 15 years later. His murder is almost unimaginably cruel; it is impossible to read the details without being overcome with anger and revulsion. Yet this is what James Byrd's sister had to say on the eve of Lawrence Brewer's execution: "If I saw him face to face, I'd tell him I forgive him for what he did. Otherwise I'd be like him." Requests to sign petitions for Troy Davis flooded my inbox over the past several weeks. I'm glad they did, and I signed them. I would have signed one for Lawrence Brewer, too. But there were none. It worries me that many of the more than 600,000 people around the world who protested Troy Davis' execution did not even know about the impending end of Lawrence Brewer's life. And it worries me that many of those who did know about it did not lose any sleep over it. Years from now, I believe the death penalty will be condemned because of what it reflects about us, not the individuals the state has killed in our name. We are a society that locks hundreds of thousands of people into small cages for decades, and then arbitrarily selects a tiny handful to pull out in the middle of the night and kill. That's who we are. And the horror of that is what sickens me, even more than the fact that Troy Davis might have been innocent. Ty Alper is an assistant clinical professor of law and the associate director of the Death Penalty Clinic at the University of California, Berkeley, School of Law... To continue reading this legal news please click Read full information...

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Where Did Judge Kozinski's Libertarian Streak Go in the Redondo Beach Case?

By Mike Dorf A little over a week ago, an en banc 9th Circuit court invalidated a Redondo Beach, CA ordinance banning "stand[ing] on a street or highway and solicit[ing], or attempt[ing] to solicit, employment, business, or contributions from an occupant of any motor vehicle." The law was ostensibly meant to address congestion arising out of congregating day laborers seeking work, but as in other communities in which this issue has arisen, such legitimate concerns become mixed with anti-immigrant sentiment. The en banc majority found that the law was facially invalid as overbroad. Streets are, in the Supreme Court's category, a "traditional public forum," and while reasonable time, place, and manner regulations of speech are permissible in such a forum, the Redondo Beach ordinance, in banning an entire category of speech, was not such a regulation. Chief Judge Kozinski disagreed strongly. He wrote: "If I could dissent twice, I would." Some of his rhetoric could be used by anti-immigrant demagogues. He stated: "As might be expected when large groups of men gather at a single location, they litter, vandalize, urinate, block the sidewalk, harass females and damage property." That's not exactly stereotyped language itself, but one might think of it as the velvet glove that encases the iron fist of such language or worse. Chief Judge Kozinski is a libertarian on both speech and business, leading one to think that he ought to be extremely solicitous of commercial speech of the sort at issue here. He is also an immigrant himself, and knowing him personally, I have every reason to think he would not want to encourage anti-immigrant sentiment. So, what is going on here? I'm going to venture an unproveable hypothesis: The best explanation for the case is that for Judge Kozinski, as for many other southern Californians, cars are different. Consider an analogous pair of cases. In Young v. NYC Transit Authority, in 1990, the U.S. Court of Appeals for the Second Circuit upheld a ban on begging in the subways. Three years later, in Loper v. New York City Police Dep't, the same court invalidated a blanket ban on begging. Although there is some tension between the two opinions, the results of the two cases are easy to reconcile: People on subway platforms and subway cars are a captive audience, such that begging in these spaces is inherently coercive; begging above ground is different because it's much easier just to walk away. My hypothesis is this: Chief Judge Kozinski, as a longtime resident of Southern California, regards a car as a private space in which people need protection from intrusion, in much the way that a New Yorker needs protection on the subway. Now, I'll freely admit that there are two big problems with this hypothesis. The first is that other Californians in the Redondo Beach case came out the other way. But so what? To say that a factor influences one judge is not to say the same factor will influence all similarly situated judges in the same way. The second problem is that CJ Kozinski's dissent did not actually focus on the intrusion on the repose of drivers, but concentrated instead on the harms to shopowners and pedestrians from day laborers congregating on the sidewalks. Still, judges often write opinions that express reasons aimed at justifying the results they believe correct, even when other factors played a more important causal role in their reaching those results. Bottom Line: The "cars are different" hypothesis could explain what is otherwise a puzzling dissent... To continue reading this legal news please click Read full information...

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Europe Extends Copyright

On September 12, the European Commission passed a Directive extending the copyright on music recordings from 50 years to 70 years. Each member state must implement the Directive through its own legislative measures. Eight EU member states voted against the measure. According to the New York Times, Belgium dissented: "A term extension is not an appropriate measure to improve the situation of.. To continue reading this legal news please click Read full information...

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Effort to Repeal DOMA in Congress Gains Bipartisan Support

Early on Friday morning, it was announced that the legislative effort in Congress to repeal the discriminatory and unconstitutional Defense of Marriage Act (DOMA) is now a bipartisan affair. Rep. Ileana Ros-Lehtinen (R-Fla.) became the first Republican cosponsor of the Respect for Marriage Act (H.R. 1116/S. 598), legislation pending in both the House and Senate that would repeal DOMA in its entirety, as well as provide all married couples certainty that regardless of where they travel or move in the country, they will not be treated as strangers under federal law. According to the Advocate, in announcing her support for the legislation, Rep. Ros-Lehtinen said: I voted against the constitutional amendment defining marriage [in 2006] so I'm pleased to cosponsor the repeal of DOMA and work with my colleagues on marriage equality With Rep. Ros-Lehtinen's co-sponsorship, support for the Respect for Marriage Act in the House now stands at 125 – the highest it has ever been. Companion legislation in the Senate currently has the support of 30 senators, including every Democratic member of the Senate Judiciary Committee. Momentum is clearly on the side of those fighting to repeal DOMA. I hope you will continue to stand with the ACLU in urging your members of Congress to support the Respect for Marriage Act. It's time to put DOMA – an ugly relic of a bigoted and discriminatory past – where it belongs, in the dumpster. Learn more about LGBT rights: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook... To continue reading this legal news please click Read full information...

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