Law

SCOTUS's Meaningless Death Penalty Rules

The Eighth Amendment forbids the execution of the mentally ill. So why did we kill John Errol Ferguson?

AP Images/Amber Hunt
Monday evening, the state of Florida executed John Errol Ferguson. This was not an act of injustice because Ferguson was innocent—he brutally killed eight people. It was an act of injustice because Ferguson was mentally ill. The Eighth Amendment forbids his execution. In 2008, the Supreme Court held that a person cannot be executed if he or she is insane at the time of his or her execution. To the extent that the term has meaning, it's hard to imagine that it doesn't apply to Ferguson, who experts have testified has a "genuine belief" that he is the "prince of God" and has the power to control the sun. Stephanie Mencimer of Mother Jones details Ferguson's history of mental illness: Ferguson's story, and long-documented record of mental illness, starts back in 1965, when records show Ferguson was suffering from hallucinations. In 1971, he was committed to a state mental hospital after being diagnosed as a paranoid schizophrenic. For the next several years, court-appointed doctors...

Sex Workers vs. Spitzer

The former "Love Guv" is back in the public eye and calling himself a feminist, but the anti-prostitution measures he signed into law make life more dangerous for women in the sex trade. 

AP Images/Seth Wenig
AP Images/Seth Wenig Y es," Eliot Spitzer told host Chris Hayes on MSNBC , he is a feminist. Hayes had just played him a clip in which Sonia Ossorio, the National Organization for Women's (NOW) New York City chapter president, denounced him for paying for sex. "Do we want an elected official," Ossorio asked, who has "participated in sustaining an industry that we all know has a long history of exploiting women and girls?" Spitzer countered that, as governor, he passed a tough anti-sex-trafficking law (never mind that he broke part of it). It was a conflict you rarely see in public: two people competing for feminist cred over sex work—Spitzer the prosecutor (and repentant customer), Ossorio the spokeswoman (that sex workers never asked for). As is often the case, their sex trade bona fides don't extend to actually having done sex work, but in using sex workers to make a political point. What they missed was that they were shouting from the same side of the stage: Both NOW's Ossorio and...

Will the Department of Justice Find Zimmerman Guilty?

AP Photo/Gerald Herbert
AP Photo/Alex Menendez S ince the end of the George Zimmerman trial, many of those dismayed by the not guilty verdict have pushed for the Department of Justice to press federal civil-rights charges against Trayvon Martin’s killer. Given the strong possibility that race played a role both in Zimmerman's decision to follow the unarmed teenager and in the jury’s verdict, it seems plausible that federal intervention might be warranted. Indeed, soon after the verdict was read in mid-July, Attorney General Eric Holder launched an inquiry into whether civil-rights charges should be filed against Zimmerman. But unless the investigation uncovers evidence that was not publicly available at the time of the trial, it is almost certain that the federal government will decline to prosecute Zimmerman. The first barrier to bringing civil-rights charges against Zimmerman is that he is not a state actor. Since Reconstruction, the Supreme Court has generally interpreted the Fourteenth Amendment as...

Big Pharma's Private War on Drugs

Pharmacy robberies have spiked in large part thanks to illegal demand for OxyContin. A look inside the drugmaker's efforts to protect its product and the pharmacists at the front lines.

AP Images/Graeme Roy
AP Images/Graeme Roy O n a Wednesday afternoon this spring, with overcast skies and gas-slicked puddles on Utopia Parkway, some two hundred pharmacists gathered on the fourth floor of St. John’s University in Jamaica, Queens, for the Fifty-Fourth Annual Dr. Andrew J. Bartilucci Pharmacy Congress. The plainclothes professionals sat around tables draped with red tablecloths, sipping plastic cups of coffee and occasionally glancing at their phones. At approximately two o’clock that afternoon, John P. Gilbride, Caucasian male, five foot six, medium build, clean-shaven, wearing a dark suit and glasses, entered a rear door of the room carrying a leather satchel. He stood with his head down before walking to the lectern and opening a PowerPoint presentation. Four massive bulls-eyes were splayed out on the conference room walls. “Pharmacy robberies and burglaries are taking place across the country at an alarming rate,” he said. “Do you talk about it? Do you prepare for it? We all had fire...

On Abortion, a Tale of Two Countries

Texas state senator Wendy Davis, whose unsuccessful attempt to stop a restrictive abortion law drew national attention. (Flickr/Texas Tribune/Todd Wiseman)
Conservatives may be in retreat on many different fronts these days, but in one area, they're having smashing success: restricting the ability of women—particularly non-wealthy women—from accessing abortion services. And they're doing it with a new tool: the 20-week abortion ban, offered as cover for a raft of restrictions that aren't about stopping later-term abortions but about stopping all abortions. They're succeeding not because of some change in Americans' views on the subject, but because of the exercise of raw political power. As you may have heard, opinions on abortion, unlike those on many other subjects, have been remarkably stable for decades. But that stability masks some stark differences on abortion, differences that create just enough space for Republicans in parts of the country to make abortion all but illegal. Yesterday the Pew Research Center came out with a new poll , showing some rather dramatic gaps by region on what people think about abortion. Check out this...

Fighting Florida's School-to-Prison Pipeline

Protesters occupying the Florida Capitol in memory of Trayvon Martin want to change school policies that disproportionately suspend black students and often end in arrest.

AP Images/Phil Sears
AP Images/Phil Sears Last week, Donnell Regusters heard from a co-worker that dozens of young people were occupying the Florida Capitol, rallying around the Trayvon Martin verdict, calling for the repeal of the state’s stand-your-ground law, and demanding an end to what reformers call the “school-to-prison pipeline,” so he decided to head South. “It wasn’t even up for debate,” he says. Regusters, an organizer working to reduce suspensions and school-based arrests in Philadelphia, got together a group of young Philly residents, hopped on a bus, and went down the East Coast, picking up students in Baltimore and Washington, D.C., along the way. The night after Regusters’s crew joined the protest, then going into its tenth day, national news coverage heated up : Singer and civil-rights activist Harry Belafonte, a funder of civil-rights actions in the 1960s, made an appearance in Tallahassee. Seeing Belafonte speak in person, Regusters says, “was insanely powerful.” That Friday evening,...

Pot vs. Booze: The Battle Begins

Young drug users, fresh from rampaging through their neighborhood.
Here in Washington, our NPR station airs a program on Sunday nights featuring old-time radio dramas like Gunsmoke and Yours Truly, Johnny Dollar ("The transcribed adventures of the man with the action-packed expense account, America's fabulous freelance insurance investigator!"). A week or two ago they featured an episode of Dragnet in which Los Angeles is beset with a wave of juvenile delinquency. Formerly well-behaved teens start running wild, beating people up, smashing store windows, and creating general violent mayhem. Not only that, these kids commit their crimes in front of local merchants and citizens who know their names and their families—the teens are so crazed, they don't even care if they get caught. Sergeant Friday's suspicions are quickly confirmed, and the culprit is identified. The teens are caught in the grip of … marijuana! Back here in 2013, the Brickyard 400, a NASCAR race, was this weekend in Indianapolis, and the Marijuana Policy Project, a legalization advocacy...

Why the Courts Matter to LBGT Rights

AP Images/Elaine Thompson
The eminent legal scholar and federal judge Richard Posner has a self-described "revisionist" piece on litigation and same-sex marriage in The New Republic . Since it is partly a review of Michael Klarman's From the Closet to the Altar , much of what I have to say about Posner's piece is contained in my review of the Klarman book , and I won't repeat all of those arguments in the same detail here. But Posner's piece is instructive because it embodies some fallacious assumptions about institutional change in American politics that cause many scholars to misundertand the role litigation can play in social reform. What's most telling in Posner's review for me is this: The books are scholarly and well written, but deficient in payoff. They are basically just narratives of the history of homosexual marriage in the United States. I don't think this is right. The argument in Klarman's book is subtle—in part because he started off, like Posner, believing in t he conventional backlash thesis...

A Guide to Anti-Choice Concern Trolling

flickr/exakta
If you're a supporter of reproductive rights in the United States, you're forced to endure various forms of concern trolling. The centrist form, perfected by Slate 's Will Saletan, exhorts supporters of abortion rights to concede that abortions are icky and that the good faith of people who support criminalizing abortion must be conceded even when their arguments are a moral, political, and legal shambles . While outright opponents of abortion rights are certainly willing to use these techniques, they have innovations of their own. The concern-troll-in-chief for opponents of reproductive rights is Ross Douthat of The New York Times . Last weekend's manifestation is a particularly good example, both because the arguments are relatively sophisticated and because Douthat is frequently generous enough to provide the material that refutes his own arguments. So, as a public service, I use Douthat's latest column to provide a handy guide to the pillars of anti-choice concern trolling, and,...

Teacher, May I Plead the Fifth?

flickr/SarahSandri
flickr/amitbronstein I n January 2008, a school resource officer —a policeman assigned to a school — named David Pritchett brought eight-year-old Anthony J. Hunt into the reading lab at Shields Elementary School in Lewes, Delaware. He planned to question him about a missing dollar, stolen from an autistic student on the bus that morning. Pritchett was almost certain that the student already waiting in the room, a fifth-grader named AB in court papers, had stolen it. Pritchett had trouble getting him to confess. After sitting Hunt down and closing the door, Pritchett began his interrogation. He warned the boys against lying and told them about Stevenson House, a youth detention center where “people are mean” and where Hunt would not be able to see his siblings. Hunt began to cry, after which AB confessed to stealing the dollar. Two years later, Hunt’s mother sued the state, and three years after that the Delaware Supreme Court ruled in her son’s favor, agreeing that Hunt’s Fourth...

California's Teeming Prisons

WikiMedia Commons
N early 30,000 California prisoners are on hunger strike to protest various abuses , including the extensive use of solitary confinement. This strike is the latest reflection of just how broken the state's prison system is. In turn, the problems in California showcase the myriad messes that increasingly define American crime-control policy. The disastrous state of California prisons two years ago compelled the federal courts to intervene. The Supreme Court ruled that the overcrowding had become so dire that it violated the Eighth Amendment, upholding a lower court order that the prison population be reduced. California Governor Jerry Brown, however, has been resistant to meeting the target of set by the courts (which require California to reduce its prison population to "only" 137.5 percent capacity). Declaring the problems in California prisons solved, Brown has issued a plan that flatly refuses to meet the targets. That proposal was again rejected by the Ninth Circuit. The hunger...

Ginsburg's (Pyrrhic?) Triumph

AP Photo/Ron Edmonds
AP Photo/Pablo Martinez Monsivais T he two major same-sex marriage cases decided by the Supreme Court in June were puzzling for at least two reasons. Windsor , which struck down a major provision of the Defense of Marriage Act, featured a notably opaque opinion by Justice Anthony Kennedy. Hollingsworth v. Perry, on the other hand, which resulted in legal same-sex marriage in California—albeit through a technicality—had a vote lineup that bore little relationship to how justices typically vote in standing cases, suggesting strategic voting on both sides. Part of the reason for these anomalies might be the Justice Kennedy's uneasiness. But it's worth noting that the outcome produced by these two cases is consistent with the long-held beliefs of one justice who was (unlike Kennedy) in the majority in both cases: Ruth Bader Ginsburg. Court observers have interpreted the unusual vote lineup in Perry (Republican appointees Chief Justice Roberts and Justice Scalia, joined by their more...

Chart of the Day

It can hardly be said too often that the George Zimmerman trial, or any one trial for that matter, only tells us a tiny bit about what happens when one person kills another and how they're treated by the justice system. Before the verdict, I predicted that Zimmerman would be acquitted, not because I'm some kind of genius, but based on two factors: There was no one alive who could contradict Zimmerman's account of what happened, and Florida law permits you to chase someone down, start a fight with them, and then shoot them if you start losing the fight. But what if we broaden our view a bit, and look not just at one case, but at thousands of cases? Does race matter? You may be saying, of course it matters, but let's look at some data. John Roman of the Urban Institute took data from 53,000 homicides over the last few years gathered by the FBI, and produced this stunning chart (h/t Richard Florida ): In case you're having trouble seeing the lines, the combination least likely to be...

Three Things You’ve Got Wrong about the Filibuster

AP Photo/Columbia, File
AP Photo/Henry Griffin W ith the Senate showdown on executive branch appointments—and eventually filibuster rules—moving towards the moment of truth, it’s a good time to revisit some of the myths surrounding one of the hallowed chamber’s most perplexing procedures. Here are three: 1. Filibusters ≠ Cloture Votes Really: Filibusters are not the same as cloture votes. All those charts and fact sheets you’ve seen showing the explosion of filibusters in 2009? Well, it happened, but the explosion was due to an increase in cloture votes, which are—get it now?—not the same as filibusters. Cloture—or cutting off debate on a bill, nomination, or motion, which by rule in the Senate requires three-fifths of all Senators—is one way the majority can end a filibuster. But it’s not the only way. Filibusters can end through attrition (that is, the minority tires of doing it); through cutting a deal on some minority demand, such as allowing one nomination to go through while another is withdrawn; or...

When Justice Is Blind and Deaf

AP Images/Matt Smith
AP Images/Matt Smith I f justice is a conspiracy between moral logic and the law, then the revelation of the 36 hours following the George Zimmerman verdict is just how complete justice’s failure has been. The shambling closing statement at the trial last Thursday by attorney Bernie de la Rionda was a testament to how fully the state was seduced—with only occasional bulletins from some larger perspective by fellow prosecutor John Guy—into allowing the terms of the contest to be defined by Zimmerman’s counsel, Second City-wannabe Don West and Mark O’Mara, who was his own greatest competition in the sweepstakes for who could make the proceedings’ most flabbergasting comment. After telling the apparently beguiled jury that his client wasn’t accountable for a single moment of the events of February 26, 2012, that led to the death of teenager Trayvon Martin in Sanford, Florida, O’Mara declared at Saturday night’s press conference that had the ethnicities of defendant and victim been...

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