Law

Why It's a Bad Idea to #StandWithRand, Even on Drones

Progressive activists, including those with legitimate concerns about civil liberties and the use of drones, should think twice about leaving the appeals court seat vacant in order to oppose David Barron.

©Jenny Warburg
©Jenny Warburg Sen. Rand Paul approaches the podium at the 2013 Conservative Political Action Conference in National Harbor, Md., bearing the briefing book he used during his 13-hour March 6 filibuster on the topic of armed drones. L ast year, Sen. Rand Paul of Kentucky opposed the nomination of CIA director John Brennan with a 13-hour speech against the Obama administration’s drone policies. The filibuster, a carefully calculated opening move for Paul’s 2016 presidential campaign, garnered massive media attention. So it should not be a surprise that he planned another filibuster, this time against today’s scheduled Senate consideration of appeals court nominee David Barron. As an attorney in the White House Office of Legal Counsel, Barron worked on memoranda providing a legal justification for the killing-by-drone of American Al-Qaeda strategist Anwar Al-Awlaki in Yemen. Paul’s latest grab for media attention has been rolled out with political precision: an op-ed in last week’s New...

Can Reformers Save Our Election System from the Supreme Court?

AP Photo/Susan Walsh
AP Photo/Susan Walsh Cornell Woolridge of Windsor Mill, Md., takes part in a demonstration outside the Supreme Court in Washington, Tuesday, Oct. 8, 2013, as the court heard arguments on campaign finance. O ver the past few years, given the bad news that just keeps coming their way, America’s campaign-finance reformers have started to look like eternal optimists. They’ve pretty much had to be. Take the one-two wallop they suffered early this spring. First, Governor Andrew Cuomo and New York state legislators killed reformers’ best chance of a breakthrough in 2014—a public-financing program in which small-dollar donations would be matched or multiplied by public funds. (New York City already runs its own “matching” program.) The idea was to give less-wealthy donors a bigger voice in legislative and gubernatorial races while decreasing the clout of those with deep pockets. Instead, reformers ended up with a microscopic pilot program for the state comptroller’s race. A few days later...

The Republican Candidate's Marijuana Dilemma

Democratic voters at a 4/20 rally. (Flickr/Jonathan Piccolo)
Back in 1992 when Bill Clinton said he kinda smoked pot, but "I didn't inhale," it was a big deal, both for the sort-of admission and for the squirreliness of the evasion. Eight years later, when Barack Obama said not only did he smoke pot, but he inhaled ("That was the point"), it was much less of a big deal, partly because Obama made no attempt to explain it away. As we move toward an era when most American adults have at least tried marijuana (more on that below), the chances that any particular candidate will have done it at least a time or two in their younger days grows higher and higher. But if you're a Republican, it's still complicated, since a large proportion of the population whose votes you need look at pot as something only done by hippies and jazz musicians. You can see this struggle in the person of Marco Rubio, soon-to-be presidential candidate and erstwhile GOP golden boy. Yesterday he got asked in an interview with ABC's Jonathan Karl whether he had ever smoked pot...

The Brothers Koch: Family Drama and Disdain for Democracy

AP Photo/Damian Dovarganes
AP Photo/Damian Dovarganes N ot long ago, a pal of mine asked whether I’d heard the latest scoop about Charles and David Koch, the right-wing billionaires currently overseeing capitalism’s final solution to the democracy problem. Did I know—did I know!?—their grandmother had been none other than Ilse Koch, the human-lampshade-loving wife of Buchenwald’s commandant? Cazart, as Hunter S. Thompson used to say. Overseeing final solutions just runs in the family. My friend looked distinctly chagrined when I told her it wasn’t so. Like many liberal Americans, she hates the Kochs so much that no calumny strikes her as too far-fetched. But as it happened, I was midway through Daniel Schulman’s first-rate Sons of Wichita: How the Koch Brothers Became America’s Most Powerful and Private Dynasty , and I felt reasonably sure that Schulman wasn’t saving Ilse and her apocryphal lampshades for a Harry Potter gotcha toward the end. Considering that Charles and David are worth more than $80 billion...

Meet the Doctor Who Went to Jail to Save North Carolina Lives

There is right, and there is wrong. And having to watch patients die because legislators refused the administration's Medicaid expansion—that's just wrong, says physician Charlie van der Horst.

@JennyWarburg
Next month in Raleigh, North Carolina, physician Charlie van der Horst is scheduled to appear before a Superior Court judge and jury to appeal his second-degree trespassing conviction stemming from his participation in the Moral Monday protests that filled the state legislature building last year. Van der Horst, an internationally recognized AIDS researcher and professor of medicine at the University of North Carolina at Chapel Hill, joined 28 other activists who occupied the legislative building on May 6, 2013, disobeying a police order to disperse. They were among 945 people arrested last year during twelve demonstrations. North Carolina’s Republican legislative majority has cut education funding, curtailed abortion access, and created new barriers to voting. While all those measures have offended van der Horst, his deepest concern as a doctor has been the legislature’s refusal to expand Medicaid under President Barack Obama’s Affordable Care Act. In this three-minute excerpt from...

Stemming the Tide of Recidivism: Banning 'the Box'

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iStockPhoto L ast week, the City of Baltimore approved an ordinance removing “the box,” as it is known among those with a criminal record, from employment applications for companies with 10 or more employees. It joins more than 10 states and 60 cities and counties—including Hawaii; New York City; Berkeley, California; and Jacksonville, Florida—in an effort to provide a second chance to people returning to their community after serving their time in prison. Just 40 miles away in Washington, D.C., President Obama could follow their lead by banning the box for all executive-branch employment. Today, 70 million Americans have criminal records—nearly one third of the American adult population. Studies reveal that formerly incarcerated people with stable employment are far less likely to reoffend than those who are unemployed. But too often, they’re hindered by the employer practice of asking about prior convictions, which for many serves as an instant disqualification. As a result, former...

Supreme Court: Tear Down This Wall!

Yesterday's ruling in Greece v. Galloway is an affront to religious equality, but it also reflects the poisoned fruit of a bad precedent.

T he town of Greece, New York has been kicking off its town board meetings with an invocation by a religious leader since 1999. These prayers have generally been sectarian Christian ones. Two residents of the town sued, arguing that this practice constituted a state endorsement of religion inconsistent with the Establishment Clause of the First Amendment. Yesterday, the Supreme Court ruled that sectarian prayers are constitutional. The decision is an affront to religious equality, but it reflects the poisoned fruit of a bad precedent. It must be conceded that the Court's holding is based in precedent. W ith Justice Anthony Kennedy writing for the Court's other four Republican nominees, t he 5-4 majority in Greece v. Galloway leaned heavily on the 1983 case Marsh v. Chambers . In Marsh , the Court upheld the Nebraska legislature's tradition of starting each legislative session with a prayer by a chaplain paid for and approved by the state. Based on Marsh , Kennedy found little...

The Difference Between Liberal Justices and Conservative Justices

You don't like it? Tough luck. (Flickr/Stephen Masker)
Liberals have for some time believed that all of conservatives' high-falutin' talk about "original intent" and judges who will "interpret the Constitution, not make laws" is just a crock. Rather, what they want is judges who will give them the results they want, whatever the Constitution may happen to say. "Original intent" is a particularly flexible, and therefore fundamentally bogus, rationale, since it's usually impossible to apply 18th century ideals to 21st century legal questions and arrive at a judgment based solely on your impression of what was in James Madison's mind, and therefore no matter what your preferred outcome is, you can justify it on the basis of original intent. And no one is more guilty of flinging that kind of baloney than Antonin Scalia. But conservatives respond that liberals do the same thing, pretending to believe in abstract principles when they really just want the people they like to prevail in every case that comes before the courts. Resolving the...

Guillotine Revival Movement Gains Momentum

Flickr/The Tedster
When things began to go terribly wrong with Clayton Lockett's execution in Oklahoma the other day—when instead of drifting gently off into unconsciousness and death, Lockett began to moan and buck on the gurney—one of the first things the officials did was lower the blinds over the window through which observers peered into the death chamber. Because after all, people shouldn't have to witness a man suffer as the state is killing him, right? Lockett's execution was hardly the first botched one we've had, particularly with lethal injection, a process prison officials seem extraordinarily incompetent at implementing properly. But for whatever reason, it has brought about a more substantial debate about the death penalty than we've had in some time. And as part of that, it looks like my semi-serious advocacy for the return of the guillotine is finally gaining momentum. It already has endorsements from Conor Friedersdorf and Sonny Bunch , with more sure to follow. Frankly, I've never...

Will the Fourth Amendment Go Mobile? SCOTUS and the Fate of 21st Century Privacy

07-12-09 © billyfoto
07-12-09 © billyfoto O n Tuesday, the Supreme Court heard oral arguments in two cases whose outcomes will have major ramifications for Fourth Amendment and privacy rights. Both cases, Riley v. California and United States v. Wurie , involve convictions based, in part, on evidence uncovered from a mobile phone searched without a warrant after the suspect was arrested. (In Riley , the warrantless search was upheld by the California courts; in Wurie , the warrantless search was determined by the 1st Circuit Court of Appeals to have been illegal.) Warrantless searches are, in general, presumptively not "reasonable" and are therefore forbidden by the Fourth Amendment, which protects against unreasonable searches and seizures . There are, however, allowable deviations from this general rule. One longstanding exception is that police have a right "to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction," as set out in the high court's...

Daily Meme: An Execution Gone Horribly Wrong

Nothing is more likely to make you question the morality of the death penalty than an execution gone horribly wrong. Yesterday, Oklahoma officials attempted to intervene after the lethal drug cocktail administered to death row inmate Clayton Lockett not only failed to kill him, it made him writhe and gasp after he'd been declared unconscious . The episode was disturbing enough that Oklahoma's governor, Mary Fallin, delayed a second execution that was supposed to happen later in the day, calling for a "full review" of the state's execution procedures. A reporter who was on the scene in Oklahoma was so horrified by what she saw that she decided to tweet details from the execution . "Live tweeting an execution seems unnecessary and kind of sick to me," she wrote. "After what happened, I felt like it was important for people to know." Officials are now claiming that the problem wasn't with the drugs themselves, but the way they were administered. But other grisly episodes in which...

All of a Piece: Donald Sterling, Cliven Bundy and the Supreme Court of the United States

AP Photo/Mark J. Terrill
B eginning with the April 22 decision by the Supreme Court of the United States allowing affirmative action’s fate to be decided at state ballot boxes, followed 24 hours later by rancher Cliven Bundy’s comments on slavery’s positive attributes, followed 48 hours later by Los Angeles Clippers owner Donald Sterling’s plantation master attitude on display in a recorded telephone conversation attributed to him, this past week has been hell for African Americans. So much for post-racialism. During the conversation in which a man said to be Sterling demands that his girlfriend not be seen in the company of African Americans--nor even attend Clippers games in the company of black friends-- saying : “We live in a culture.” He goes on to argue for adherence to the rules of prejudice that exist within the culture. Yet another aspect of that culture, the one Sterling says we all live in, is a news cycle that enables each of these stories to supersede the other solely on the basis of...

Pardon Me, Mr. President?

Flickr/Salticidae
Flickr/Victoria Pickering T his week, the Department of Justice (DOJ) announced the start of a new initiative on clemency, encouraging thousands of inmates—particularly those convicted during the Drug War crackdown of the 1990s—to send in petitions to have their sentences commuted. The new initiative offers six new criteria by which petitioners will be judged, including the following: prisoners must have served 10 years of their sentence, must not have lengthy criminal records or gang convictions, and show that they would have gotten off with a lighter sentence had they been tried today. In his more than five years in office, Obama has been the stingiest president in history when it comes to granting pardons; the new program could make him one of the most generous. But the biggest news for criminal-justice reformers has been the administration’s appointment of a new pardon attorney to oversee the program: Deborah Leff , who spent her years at DOJ working on the Access to Justice...

Justice Sotomayor's Powerful Defense of Equality

AP Photo/Steven Senne
AP Photo/Steven Senne Supreme Court Justice Sonia Sotomayor Y esterday, the Supreme Court upheld a provision of Michigan's constitution that bans the state or any of its subdivisions from "grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." The Court was fractured; the six justices who voted to uphold the amendment did so for three independent reasons. Written by Justice Anthony Kennedy, the plurality decision—to which Chief Justice John Roberts and Associate Justice Samuel Alito signed on—was narrow: It upheld the amendment without disturbing any precedent. Far more interesting was Justice Sonia Sotomayor's dissent, which makes a strong case for a robust interpretation of the equal-protection clause of the 14th Amendment and represents perhaps her most compelling work in her tenure on the Court so far. The case for upholding...

How Big Data Could Undo Our Civil-Rights Laws

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iStockPhoto B ig Data will eradicate extreme world poverty by 2028, according to Bono , front man for the band U2. But it also allows unscrupulous marketers and financial institutions to prey on the poor . Big Data, collected from the neonatal monitors of premature babies , can detect subtle warning signs of infection, allowing doctors to intervene earlier and save lives. But it can also help a big-box store identify a pregnant teenager —and carelessly inform her parents by sending coupons for baby items to her home. News-mining algorithms might have been able to predict the Arab Spring . But Big Data was certainly used to spy on American Muslims when the New York City Police Department collected license plate numbers of cars parked near mosques, and aimed surveillance cameras at Arab-American community and religious institutions. Until recently, debate about the role of metadata and algorithms in American politics focused narrowly on consumer privacy protections and Edward Snowden’s...

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