Law

Right to an Attorney

The case of Corey Maples provides a disturbing look at the death penalty system in the United States and underscores how even people facing execution are often not represented by adequate counsel at any stage of the criminal process. In Maples’s case, the attorneys assigned to represent his appeals quit midway through the process, and yet the state of Alabama blamed Maples for his failure to comply with procedural requirements he had no way of fulfilling. Yesterday, the Supreme Court corrected this obvious mistake by ruling that Maples had a right to appeal in a 7-to-2 decision. But this case will leave the pervasive problem of bad legal representation in our criminal justice system essentially untouched. The issues that Maples had in finding adequate representation did not start with the appeal that led to the Supreme Court taking up his case. As the Court pointed out, “[a]t trial, he was represented by two appointed lawyers, minimally paid and with scant experience in capital cases...

Eye of the Beholder

AP Photo/J. Scott Applewhite
Taking powerful new scientific evidence about the unreliability of eyewitness identification into account, last year the New Jersey Supreme Court established strict rules to determine when eyewitness identifications are unreliable enough to be inadmissible. In a case decided earlier this week, Perry v. New Hampshire , the Supreme Court had an opportunity to follow suit with a reconsideration of its own. Regrettably but not surprisingly, the Court instead decided to ignore the new evidence. This unfortunate decision is certain to lead to many more innocent people being convicted even though a standard that is workable and more consistent with constitutional values is available. Perry required the Court to choose between two different systems for determining when eyewitness testimony should be presented to a jury. At a minimum, the Court’s precedents seemed to require that judges exclude eyewitness identifications that were the result of police “rigging”— that is, when police...

A Real Instance of Voter Fraud

I normally try my best to ignore the latest Blair Witch film sting from conservative provocateur James O'Keefe, he of ACORN and Planned Parenthood fame. But O'Keefe's new gotcha video unfortunately dips its toes into my beat, so I'll briefly grant him some of the media attention he craves. O'Keefe sent his lackeys to New Hampshire earlier this week to collect ballots on behalf of now-deceased registered voters. The video shows a string of instances where members of his group Project Veritas headed to a polling location and deceived poll workers on their identity. Once the ballot was procured, they would express befuddlement that they were not required to present a photo ID and awkwardly stumble back to retrieve their IDs despite the protestations of the poll workers. Ignoring the snooze value of the ten-minute film (the repeated script becomes crystal clear just a minute in), it also doesn't prove the claims made by Republicans to justify their restrictive voting measures. It's true...

Court Overturns Oklahoma Ban on Sharia Law

Combining a variety of conservative culture-war obsessions, Oklahoma voters in 2010 passed an initiative that would "forbid courts from looking at international law or Sharia Law when deciding cases." Today, the Tenth Circuit Court of Appeals ruled that the initiative violated the Establishment Clause of the First Amendment. The Court's reasoning is straightforward and correct. As the panel unanimously concluded, the initiative singled out the Muslim faith among religious laws for discrimination. Because it implicates the free exercise of religion—a fundamental right—the voter-approve amendment has to survive the legal test of "strict scrutiny": That is, it has to be 1) narrowly tailored to 2) address a compelling state interest. The ban on sharia law clearly fails both tests. Not only is there no "compelling state interest" for the law; proponents of the initiative failed to "identify any actual problem the challenged amendment seeks to solve." Indeed, they admitted at the...

Virtual Justice

The head administrator of Ninja Video is sentenced to 22 months in prison.

Updated 9:00 a.m. Hana Beshara, the head administrator of Ninja Video, a TV- and movie-streaming site seized by Immigration and Customs Enforcement (ICE) in June 2010—and the subject of my article, “ A Ninja In Our Sites ,” in the January/February issue of the Prospect —was sentenced on Friday to 22 months in prison. Upon release, she will be required to complete 500 hours of community service and pay $209,827 in restitution to the film industry’s lobbying group, the Motion Picture Association of America (MPAA). Restitution payments have been set at $150 a month, which means Beshara is expected to give a chunk of her future income to the MPAA for a little over 116 years. Federal prosecutors in Virginia are trying to send Beshara to prison sooner than later. At sentencing, the judge approved voluntary surrender, meaning Beshara would take herself to prison in a few weeks. Over the weekend Beshara criticized the prosecution and the terms of her sentencing on Facebook and chat boards. On...

A Contradiction, Without Comment

Without issuing an explanation, yesterday the Supreme Court upheld a federal law banning resident aliens from making campaign contributions. It is regrettable but perhaps telling that the Court chose not to explain why it agreed with the lower court: The case reveals obvious problems with its penchant for First Amendment absolutism in campaign-finance cases, most notably its decision in Citizens United . The implicit message in the court's decision is straightforward: Elections are different from regular speech. If I were a resident alien, any attempt by the federal government to censor this post would be a black-letter violation of the First Amendment. But it would remain illegal—and properly so—for me to send a $30 check to a candidate for public office. This is not because this donation would count as anything other than "free speech" but because the courts have reasoned that maintaining the integrity of American elections by protecting them from undue influence from foreign donors...

Battle of the Supremes

The Montana high court upholds the state's anti-corruption laws—and challenges Citizens United in the process.

The Montana Supreme Court in Helena stands just off the main drag, dramatically called Last Chance Gulch Street. The picturesque setting is fitting for an institution that has just challenged the U.S. Supreme Court to a legal showdown on the enormously important question of whether corporations should have an unfettered right to dominate elections or whether citizens have the right to adopt commonsense protections to defend democratic government from corruption. Get the kids off the streets, because this could be an epic confrontation. In upholding the section of Montana’s Corrupt Practices Act that restricts direct corporate political spending, the Montana Supreme Court attacked the Citizens United fiction that independent expenditures aren’t corrupting and that corporate political spending isn’t a danger to democratic government. The Montana jurists’ decision in Western Tradition Partnership states unequivocally, “The impact of unlimited corporate donations creates a dominating...

Payment Where Payment's Due

The uninsured cost the health-care system $120 billion a year. All the individual mandate does is make them pay for it.

The Republicans who argue that the Affordable Care Act (ACA) violates the Constitution have based their argument around the idea that the law will result in a remarkable new expansion of federal power that will lead us on a path to total government tyranny. As the brief filed by the Obama administration in defense of the ACA makes clear, however, the mandate to purchase insurance in fact falls squarely within the framework of federal power that the Supreme Court has consistently advanced since the New Deal. It’s a clear explanation of the history and goals of the legislation and the relevant constitutional issues that everyone interested in this important question should read. Arguments against the ACA center on the assertion that the bill’s requirement that most individuals obtain health insurance or pay a tax penalty goes beyond the power Congress has under Article I Section 8 to regulate “interstate commerce.” According to the bill’s constitutional critics, because the health-...

Occupying Grand Central Station

OWS rings in the new year with a fight against NDAA.

Sargeant Shamar Thomas protests against NDAA Tuesday at Grand Central Station.
Five hundred people returned to Zuccotti Park on New Year's Eve, with drums, chants of "Whose Year? Our Year!", and a tent, which they say they gave to police in exchange for entrance to the park. An hour before midnight, police and occupiers attempting to remove metal barricades around Zuccotti had a violent confrontation and, by 1:30 a.m., police had cleared activists from the park. Tuesday, occupiers mobilized against the National Defense Authorization Action signed by President Obama on New Year's Eve. After a lunchtime march to the offices of New York senators, occupiers gathered in the Grand Central train station, where multiple people were arrested while leading "People's Mic" recitations of an anti-NDAA script. The indefinite detention provisions of the NDAA have become a lightning rod for Occupy actions, including Philadelphia—where activists presented "Fascist of the Year" awards to actors portraying their Senators—and Iowa, where they occupied the hotel headquartering the...

Forever After

Is Israeli rule of the West Bank really a temporary occupation? As if.

Courtesy Dror Etkes.
Courtesy Dror Etkes The Natuf Shafir quarry. I'd really like to be angry at Dorit Beinisch, the chief justice of the Israeli Supreme Court. On the eve of her retirement, Beinisch abandoned her role of pushing the Israeli government to honor legal restraints in the occupied territories. Instead, in what could be her last major ruling on Israeli actions in the West Bank, she has given a stamp of approval to colonial economic exploitation. But let's put petulance aside. One message of Beinisch's judgment is that judicial resistance can stretch only so far. Even the highest tribunal in the land cannot reverse a national policy as basic as continuing to rule the West Bank. Another message—whether or not Beinisch intended it—is that treating a situation that has lasted 44 years as "temporary" is absurd. The occupation is not an acute disease; it is a chronic one. Beinisch's ruling came in a suit filed three years ago by the Israeli human-rights group Yesh Din, based on the work of land-use...

Calling for a Convention

Amending the Constitution is our best bet for fixing Congress.

To keep money from corrupting our democratic politics, we need constitutional change. No doubt lots can be done by statute alone—meaningful transparency rules, such as the Disclose Act, and small-dollar public funding, such as the Fair Elections Now Act. The Supreme Court, however, has all but guaranteed that these won’t be enough. Transparency by itself won’t build trust; public funding can only be voluntary; and independent expenditures are all but certain to swamp even the best reforms tolerated by the Court. If we’re ever going to get a Congress “dependent,” as James Madison put it in Federalist Paper No. 52, “upon the People alone,” and not “the Funders,” it is clear that Congress will need new constitutional authority. Yet it is also clear that Congress won’t ask for this authority itself. The chance that this Congress, or any Congress elected in the current environment, could muster 67 votes in the Senate to alter Washington’s economy of influence is zero. Congress is the...

Citizen Bopp

Art by John Ritter (Source Photo: Evan Vucci / AP) W edged up against the Illinois border on the banks of the Wabash River, Terre Haute, Indiana, has seen better days. Many factories have closed, and downtown has too many vacant storefronts. But there are signs of activity: Indiana State University has grown, the federal prison still provides reliable jobs—and the ten-lawyer litigation machine that occupies the offices of attorney James Bopp Jr. at the corner of 6th and Wabash is going full tilt. Bopp is best known as the lawyer behind a case involving a 90-minute film made in 2008 attacking then–presidential candidate Hillary Clinton. Bopp’s suit ultimately resulted in the landmark 2010 Citizens United v. Federal Election Commission decision, in which the Supreme Court held that corporate funding of independent political broadcasts such as the movie and its promotional ads were legitimate expressions of free speech and couldn’t be limited by campaign-finance laws. The ruling...

Voting Wrongs

When Barack Obama entered the White House, liberals hoped that the Civil Rights Division of the Department of Justice might return to its proper mission. The agency had been gutted during the Bush years, litigating individual cases of bias without tackling the systematic levers of discrimination that affect a far larger share of the population. Obama beefed up the agency's staff and DOJ started hiring actual civil rights attorneys (unlike the strict ideological conservatives without civil rights experience who entered during the Bush administration). More recently, Attorney General Eric Holder has advocated for an aggressive stance on protecting civil rights during Congressional hearings and visited Austin, Texas, earlier this month to lay out his vision for an expansive take on voter protection. There had been some early evidence of this new direction beyond the tough talk—primarily challenges to city police departments and an objection to Texas' redistricting plans. But it wasn't...

DOJ Rejects South Carolina Voter-ID Law

The Department of Justice announced late Friday afternoon that it was rejecting South Carolina's new voter photo identification law because it discriminates against minority voters. Under Section Five of the Voting Rights Act, states with a history of low minority turnout must submit any changes to their voting laws to the DOJ or to a federal court for approval. South Carolina is one of the six states that passed laws in 2010 requiring voters to present a form of government-issued photo identification before they will be granted a ballot. These laws have all been pushed by new Republican majorities, which claim the restrictions are intended to combat widespread voter fraud that threatens the integrity of elections. But studies don't back up their claims, and voting-rights advocates allege that the ID laws are intended to suppress voter turnout, particularly among groups that tend to vote for Democrats. Even if that is not the intent, it would be the effect of these laws: Up to 25...

Friday Miscellany, Year-End 2011

Herewith a few things to think about before you disappear into 2012: Sweeties. On Wednesday, the Virginian-Pilot ran what I thought was an adorable story about a Navy first. Apparently, when ships come in, someone gets the honor of disembarking for the first official welcome-home kiss with their beloved. It's been three months since the dock landing ship left home for Central America, and all of the usual fanfare is waiting to greet its crew: crowds of cheering families, toddlers dressed in sailor suits, and the lucky, excited woman who's been chosen to take part in a time-honored Navy tradition - the first homecoming kiss. The twist: this was the first time that the Chosen Kisser had a same-sex partner. The two young women involved, who are engaged, are just cute as buttons. The story made me smile. Channeling my great-aunts, when I watched the video, I wanted to pat their pretty heads and wish them a long, happy, healthy life together. But apparently I'm an outlier...

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