Sunday, November 22, 2015

Police Get "Super Powers" From High Court

      Richard Nixon ran for the presidency in 1968 in part by campaigning against the Warren Court for its criminal law decisions that he said “handcuffed” the police. Nixon appointed a new chief justice, Warren E. Burger, and three associate justices who started the court’s shift to the right that has continued ever since.
      Within the past two decades, the court has not merely backed away from adding any new constraints on police. Instead, according to Georgetown law professor Paul Butler, the court under two conservative chief justices — William H. Rehnquist and John G. Roberts Jr. — has issued decisions that give police “super powers” to arrest, to racially profile, and even to kill.
      Butler, an African American who has become a leading critic of racism in the criminal justice system, delivered his critique as keynote speaker at a daylong symposium “Police/State: Race, Power, and Control” sponsored by the Georgetown Law Journal [Nov. 20]. (Disclosure: I was editor in chief of the Journal, volume 69, a few years before the current EIC was born.) Butler provocatively declared that the most important police-related issue today is not illegal police misconduct but actually legal police conduct.
      Butler made no mention of the two major Warren Court decisions aimed at regulating police practices: Mapp v. Ohio (1960), the decision that bars use of illegally obtained evidence, and Miranda v. Arizona (1966), the ruling that requires police to inform suspects of their rights before custodial interrogation. He could have detailed the many subsequent decisions that have narrowed the applications of those decisions even while leaving them on the books.
      Instead, Butler listed decisions largely unknown to the general public that have given the court’s blessing to questionable police conduct. Butler followed a series of speakers who documented the racial disparities in criminal justice dramatically detailed in Ferguson, Mo., and equally found nationwide. “The court has created a legal platform for black lives not to matter to the police,” Butler said.
      On their face, the three decisions in Butler’s list have nothing to do with race. Indeed, a white woman was the unfortunate victim of police overreaching in one of the rulings. In the real-world context, however, Butler argues that police use of their “super powers” inevitably means that black and brown people lose and white people win.
      Chronologically, the list begins with a Rehnquist Court decision, Whren v. United States, that upheld the convictions of two African American men following a traffic stop in a “high drug area” in Washington, D.C. The plainclothes vice officers said they stopped the defendants’ truck because it drove away from an intersection at an “unreasonable” speed. The defendants argued that the traffic stop was a pretext and that the officers had singled them out because of their race.
      Writing for a unanimous court, Justice Antonin Scalia said the officers’ “subjective intentions” did not matter as long as they had an objective basis for the stop. With racial profiling already being challenged in lower courts, Scalia acknowledged that the Constitution prohibits race-based selective enforcement, but he relegated that issue to the impossible-to-meet standard of intentional discrimination. In operation, the decision makes racial profiling all but impossible for defendants to challenge or for courts to police.
      A second Rehnquist Court decision, Atwater v. Lago Vista (2001), widens police power to arrest after routine traffic stops. A police officer in Lago Vista, Texas, stopped Gail Atwater for driving without a seat belt and took her into custody. Atwater argued that the arrest for such a minor offense was an “unreasonable” seizure under the Fourth Amendment. The court disagreed in a 5-4 decision written by Justice David H. Souter. Even though Atwater is white, the impact falls on African Americans and Hispanics given the statistics that show them more likely than whites to be traffic-stopped or arrested once stopped.
      In a third case, the Roberts Court in effect gave police a license to kill. The 8-1 decision in Scott v. Harris (2007) rejected a federal civil rights suit by a Georgia man, Victor Harris, who was left permanently paralyzed after police shot him in a high-speed automobile chase. Writing for the court, Scalia found the police conduct reasonable given “the actual and imminent threat” that Harris supposedly posed for the officers, other drivers, or pedestrians. In a lone dissent, Justice John Paul Stevens argued the case should have been allowed to go to a jury.
      Just this month, the court issued a summary ruling that makes clear police have no obligation to choose a non-lethal alternative for terminating a high-speed chase. The 8-1 ruling in Mullenix v. Luna [Nov. 9] found a Texas state trooper entitled to qualified immunity for fatally wounding the suspect-driver in misdirected shots aimed at disabling the vehicle. "The Court has [ ] never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment,” the unsigned opinion states.
      The court is not to blame for other problems highlighted in the symposium. Congress and state legislatures bear responsibility for the mass incarceration that stems from overcriminalization and harsh mandatory minimum sentences; local authorities are to blame for the fines and fees that often land indigents behind bars. But a court that arms police with super powers contributes to the widespread lack of confidence in equal justice under law.

Saturday, November 14, 2015

Supreme Court on C-SPAN, With Warts and All

      The public affairs cable channel C-SPAN marked the halfway point of its series “Supreme Court Landmark Cases" last week [Nov. 9] with one of the court’s worst decisions ever:  Korematsu v. United States, the ruling that upheld the World War II internment of Japanese-Americans.
      One of the other decisions covered in the 12-part series also ranks high on the worst-ever list: Scott v. Sandford, the pre-Civil War decision commonly known as the Dred Scott case that barred citizenship for African-Americans, free or slave. At least three of the other historic cases in the series are also generally viewed as mistakes, and four of the more recent decisions remain somewhat to very controversial despite some degree of acceptance for each.
      In all, only one of the featured decisions is universally acclaimed: Brown v. Board of Education, the unanimous Warren Court ruling that outlawed racial segregation in public schools. Whether or not intentional, the series serves to remind viewers that the Supreme Court is far from infallible. “Just as the country has warts and all,” says executive producer Mark Farkas, “the court has those as well.”
      C-SPAN deserves major props for the series, telecast on Monday evenings and produced in cooperation with the National Constitution Center. The 12 cases are presented in chronological order, starting with the Marshall Court’s power-grabbing decision in Marbury v. Madison (1803) and ending on Dec. 21 with the still very contentious abortion rights ruling Roe v. Wade (1973).
      Farkas, a producer at C-SPAN for 30 years, says the goal of the series “was to be representative of a number of different kinds of decisions the court has made and to be representative of our country’s history.” And the watchword, he says, was to convey the cases in human terms to be fully accessible for a wider audience.
      Farkas has no legal training, nor does the program’s host: Susan Swain, C-SPAN’s president and CEO. Swain is joined in each 90-minute program by two experts, typically academics but sometimes practicing lawyers.
      For the Dred Scott case, both experts — George Washington law professor Christopher Bracey and University of Michigan legal history professor Martha Jones — emphasized that Chief Justice Roger Taney was not only morally wrong but historically inaccurate in the court’s main opinion. Taney was wrong, the professors explained, in stating that blacks had never enjoyed citizenship anywhere in colonial America or in post-independence United States.
      The experts for the Korematsu case similarly spoke with one voice in condemning the 6-3 decision. Karen Korematsu, who now directs a civil rights institute that bears her father’s name, and civil rights attorney Peter Irons, author of Justice at War, both made clear the ruling was infected with anti-Japanese racism and gave too much credence to the wartime military authorities.
      The chosen experts openly disagreed, however, about the court’s decision in Lochner v. New York, the 1905 ruling to strike down a New York law limiting the hours of bakery employees. The ruling gave its name to a 30-year stretch of Supreme Court decisions striking laws regulating the economy in ways favorable to workers and consumers and unfavorable to industry.
      Randy Barnett, a Georgetown law professor and author of Restoring the Constitution: The Lost Presumption of Liberty, defended the 5-4 decision on the ground that the New York law was an arbitrary infringement of contract rights. From the opposite side, Paul Kens, a professor of political science at Texas State University and author of Lochner v. New York: Economic Regulation on Trial, echoed the dissenting justices in depicting the decision as motivated by ideology rather than law.
      Implicitly, the series underscores the court’s complex relationship with public opinion and the political branches of government. In the Dred Scott case, pro-slavery justices set themselves against advancing anti-slavery forces. In Lochner, the court’s majority aligned themselves with industry and capital as the populist, progressive, and labor movements were gaining strength.
      In Dred Scott and to some degree in Lochner, the majority hoped to be settling a conflict that was roiling the nation. Taney thought the decision would settle the slavery issue once and for all. The Lochner majority saw the ruling as a way to limit the zeal of the reform-minded. In both cases, the court misjudged.
      The court misjudged in Korematsu and in a second wartime case featured in the series. The unanimous opinion by Justice Oliver Wendell Holmes Jr. in Schenck v. United States (1919) upheld the convictions of Charles Schenck and Elizabeth Baer for distributing an anti-draft pamphlet during World War I. Holmes joined with Justice Louis J. Brandeis in dissenting opinions in the 1920s that laid the groundwork for the more speech-protective approach now established as First Amendment law. Korematsu remains on the books, but the recent decisions in Guantanamo-related cases require some judicial process for wartime detentions.
      Still to come are two of the Warren Court’s criminal law rulings: Mapp v. Ohio (1960), the exclusionary rule case, and Miranda v. Arizona (1966), which requires police to inform suspects of their rights before interrogation. In those cases, the court got ahead of public opinion, as it did to some extent in Brown and more so in Roe v. Wade.
      The court’s success over time, however, can be seen in the facts that Miranda is now a part of the national culture and Roe’s essential holding survives even if battered. Credit C-SPAN with providing an informative and watchable exploration of how the court formed those successes — and its notable failures.
      Up next: The Youngstown steel seizure case (Nov. 16).

Sunday, November 8, 2015

Path Toward Transgender Rights Not Yet Certain

       Transgenders gained more visibility during the past two years than at any time since Christine Jorgenson’s transition now more than 60 years ago. Time used a May 2014 cover to proclaim “the transgender tipping point,” while HBO debuted the award-winning comedy series “Transparent” last fall. And “call me Caitlyn” Jenner drew a record-setting TV audience in May as she went up close and personal for two hours with ABC’s Diane Sawyer.
       Fear-mongering on transgender rights, however, proved to be politically effective last week in dooming a broad equal rights ordinance in Houston, the nation’s fourth most populous city. An omnibus anti-discrimination measure officially entitled the Houston Equal Rights Ordinance (HERO) went down to defeat in a referendum on Tuesday [Nov. 6] at the hands of 61 percent of the voters.
       Public opinion polls demonstrate increasing acceptance of transgenders. A poll conducted after the Caitlyn Jenner broadcast by the British-based market research firm found that a majority of those surveyed — 53 percent — saw being transgender as “morally acceptable.” Still, 31 percent of those surveyed found it unacceptable. A narrow plurality — 41 percent to 39 percent — said they would be “upset” or “very upset” if their child said he or she was transgender.
       Social and political conservatives exploited that discomfort in Houston in defeating what they called “the bathroom ordinance.” In a radio ad, the former Houston Astros star Lance Berkman warned, “No men in women’s bathrooms; no boys in girls’ showers or locker rooms.”
       Houston’s openly lesbian mayor Annise Parker aptly accused opponents of mounting a “campaign of fear-mongering and deliberate lies.” She and other supporters emphasized that existing law, unchanged by the ordinance, prohibited entering a restroom of the opposite sex with the intent “to create a disturbance.”
       Equal rights advocates from the White House on down decried the result, but transgender rights advocates must do more than view with alarm to realize their goal. Gender identity remains a third rail of civil rights legislation; the tipping point may have been reached, but the path to future acceptance and equality is unlikely to be smooth or uninterrupted.
       In an unintended coincidence, the Houston referendum came the day after the federal government adopted for the first time the formal position that discrimination on the basis of gender identity is already illegal as sex discrimination. The U.S. Department of Education’s Office of Civil Rights took that stance in an action against a suburban Chicago school district for restricting a transgender girl’s access to the girls’ locker rooms and athletic facilities.
      The school district in the suburban village of Palatine had gone at least part of the way in trying to accommodate the transgender girl identified only as “Student A.” The student, born male but self-identified as female from an early age, was allowed to register under a female name and participate on girls’ athletic teams.
       The school district’s initial effort to balance her rights with the privacy rights of other girls meant that she had to change in a single-user restroom, away from her teammates. The arrangement caused the girl to be late getting to class and to miss some important team communications.
       Now, the school wants the girl to change in the locker room but behind a privacy curtain. Representing the girl, lawyers for the American Civil Liberties Union, argue she should be allowed to make that decision voluntarily.
     In a 14-page letter [Nov. 5], the Education Department said that the school’s policy violated Title IX, the provision that prohibits sex discrimination by schools receiving federal assistance. “Unfortunately, Township High School District 211 is not following the law because the district continues to deny a female student the right to use the girls’ locker room,” Catherine Lhamon, the assistant education secretary for civil rights, explained in a statement.
      Mara Kiesling, executive director of the National Center for Transgender Equality, says the Illinois case is the exception, not the rule, among school districts nationwide. Most schools are accommodating transgender students with little difficulty or controversy. But she acknowledged that complaints from parents in the Palatine district have reached the center’s office in Washington.
      Daniel Cates, superintendent of the 12,000-student school district, told The New York Times that parents had made it clear they wanted “some measure of privacy expectation” in locker rooms. Cates insisted the school system has not violated Title IX but said he hoped to negotiate a settlement with the Education Department, as the department offered in its letter.]
      The defeat in Houston should not have come as a surprise. Twice before, Houston voters had gone to the polls to reject gay rights measures, in 1985 and 2001. Houston itself may be a blue, increasingly diverse jurisdiction, but it is still part of Texas, a determinedly red state despite its rapidly increasing Latino population.
      In the aftermath, political observers blamed supporters themselves for the defeat. While outspending opponents, the supporters supposedly failed to develop a politically effective message to answer them. Bob Stein, a political scientist at Rice University in Houston, told the Houston Chronicle that supporters should have warned about the potential economic consequences of rejecting the ordinance. “It doesn't take a rocket scientist to figure out that the economic argument was a salient argument,” Stein said.
      Politics and law intertwined in the seesaw, decades-long fight for marriage equality. For transgender rights advocates, the problem in Houston needs to be merely a reminder that the path ahead is uncertain however sure they may be of the goal.

Sunday, November 1, 2015

NRA Hired Gun Targets Assault Weapons Ban

      The Supreme Court may have to decide sometime whether the Second Amendment includes a personal right to “keep” assault weapons equipped with large-capacity magazines in the home and possibly to “bear” them on public streets as well. Two federal appeals courts have said no within the past six months, but the gun lobby’s paid intellectual champion is up in arms over the use of a relaxed constitutional test that he says relegates the Second Amendment to second-class status.
      In the more recent of the decisions, the Second U.S. Circuit Court of Appeals on Oct. 19 upheld the assault-weapons bans enacted in New York and Connecticut in the wake of the Sandy Hook School massacre. Earlier, the Seventh U.S. Circuit Court of Appeals in April upheld a similar ban adopted by the Chicago suburb of Highland Park. David Kopel took to the blogosphere a few days after the Second Circuit decision to denounce what he called the “feeble” form of intermediate scrutiny the appeals court applied in upholding the two laws.
      Kopel’s credentials need to be noted before proceeding further. His resume has the earmarks of scholarship: Ivy League degrees, adjunct law school professor, “research associate” at the Cato Institute, multiple books, and oodles of articles in law journals as well as general media. He is also research director at the Independence Institute, a Denver-based “think tank” that bills itself as “freedom’s first line.”
      Unmentioned on those web sites are the generous sums that Kopel and the Independence Institute have reportedly received over the years from the National Rifle Association (NRA). Writing for The Progressive, the veteran journalist Frank Smith reported back in April 2014 that Kopel had benefited from a total of $1.4 million in grants from the NRA to himself or the institute over the period 2004-2011.
      Smyth reported that Kopel acknowledged the funding but said he has no obligation to disclose it. Apparently, the Washington Post and the Post-published blog The Volokh Conspiracy feel the same way: Kopel’s lengthy ID includes nothing about the NRA. Smyth was prompted to write back in 2014 after the New York Times decided to mention the NRA funding in the author ID for Kopel when it published one of his opinion pieces.
      Whatever the source of his strongly held views, Kopel identifies the issue that the Supreme Court must answer some day: what level of constitutional scrutiny to apply to laws limiting the Second Amendment right that the court created by a one-vote margin just seven years ago. In two decisions, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the court went no further than to recognize a right to possess handguns inside the home for self-defense.
      Gun control advocates rightly criticize the decisions as upsetting a long-held view of the Second Amendment as limited to state militias, just as the prefatory clause seems to suggest. But even if the ruling opened a Pandora’s box, it lifted the lid only slightly. In Heller, Justice Antonin Scalia implied that any number of firearms regulations would still pass constitutional muster, including laws prohibiting the possession of firearms by criminals or the mentally ill or the carrying of firearms in sensitive places such as schools or government buildings.
      This is much different from the kind of strict scrutiny applied in First Amendment cases: criminals and the mentally ill have free speech rights, and so do students and visitors to government buildings. So, as precedents, Heller and McDonald point to a constitutional analysis that takes full account of the public’s interest in public safety.
      In its ruling in New York State Rifle and Pistol Ass’n v. Cuomo, the Second Circuit acknowledged that the New York and Connecticut laws banning certain semiautomatic weapons with specified features burdened a Second Amendment right. But it said the burden was “not severe” because assault weapons are in less common use than handguns.
      The court went on to uphold the bans because assault weapons are “disproportionately used in crimes and particularly in criminal mass shootings.” The three Democratic-appointed judges were unanimous in the decision, written by the veteran judge José Cabranes.
      Kopel complained that the court misapplied intermediate scrutiny by taking the government’s position at face value and by failing to consider a “less restrictive” alternative. That approach would have upheld the handgun bans struck down in Heller and McDonald, he said.
      The Seventh Circuit’s decision in Friedman v. Highland Park also cited the use of assault weapons in mass shootings and then explicitly left the issue to the legislature, not the courts. For the majority, Judge Frank Easterbrook Jr. depicted Heller as a limited decision and declined to plumb its “ambiguous passages” for meaning. “When there is no definitive constitutional rule,” Easterbrook wrote, “matters are left to the legislative process.” Easterbrook’s fellow Reagan appointee Daniel Manion dissented.
      The Supreme Court appears to be in no rush to take on the issue. The Highland Park case has been conferenced three times so far in successive conferences in October. One possibility: the court has decided not to hear the case with one or more justices — Scalia and Clarence Thomas most likely— writing a dissent from the denial; word could come as early as Monday [Nov. 2]. With no circuit conflict, the issue may not yet be ripe, but the justices may also be having second thoughts about just how far they want to go with the newfound Second Amendment.

Sunday, October 25, 2015

Wall Street Sharks Boosted by Ruling

      Life is unfair, and life in the stock market is now just a little more unfair after the fallout from a precedent-setting federal appeals court decision that narrowed the definition of illegal insider trading. Congress could strike a blow for fair trading by writing an insider trading law with broader coverage, but securities law experts who favor such a step recognize that it is not going to happen, certainly not with this Congress.
      U.S. Attorney Pareet Bahrara, the prosecutorial scourge of Wall Street, went into federal court last week [Oct. 22] with his head between his legs to drop charges against half a dozen confessed insider traders and a seventh who had been convicted after a jury trial. Bahrara acted under the compulsion of the Supreme Court’s decision earlier this month [Oct. 5] confirming the setback he suffered late last year in two separate insider trading cases.
      The ruling by the influential New York-based Second U.S. Circuit Court of Appeals does not affect the most straightforward type of insider trading: stock trades by the insider himself or herself based on what securities law calls “material, non-public information.” But the ruling, issued in December 2014, will make it harder to prosecute a second category of cases. In those cases, an insider (called the “tipper”) leaks confidential information to a third party (called the “tippee”) who then uses the information to make money in the market before the general investing public gets a clue.
      Bahrara’s office won securities fraud convictions and long prison sentences against two hedge fund managers. Todd Newman and Andrew Chiasson made millions as the end users of a network of market analysts who cultivated contacts with insiders at high-tech companies to get tipped about earnings reports before their release.
      Newman made $4 million from the inside-information facilitated trading and was sentenced after his conviction to 54 months in prison. Andrew Chiasson made $68 million for the hedge fund he managed and owned in substantial part and was sentenced to 78 months. But the Second Circuit reversed those convictions and took the extra step of barring prosecutors from trying again in a retrial.
      Writing for the unanimous three-judge panel, Judge Barrington Parker Jr. said the convictions could not stand because the prosecutors had failed to show that the “tippers” had gotten anything for leaking the information. A conviction in such cases, the court held, requires “an exchange that is objective, consequential, and represents at least a potential gain [for the tipper] of a pecuniary or similarly valuable nature.” Parker, a Democrat elevated to the Second Circuit by President George W. Bush, was joined by two Republican appointees: Ralph Winter and Peter Hall.
      Parker said Bahrara’s office had prosecuted Newman and Chiasson on the basis of a “doctrinal novelty.” In appealing the case to the Supreme Court, the government countered by calling the Second Circuit’s decision “novel” and “unprecedented.” The government argued that the appeals court had contradicted an earlier Supreme Court decision, Dirks v. Securities and Exchange Commission (1983), that found passing information to a relative or friend sufficient to establish insider trading liability.
      The tippers in the Newman and Chiasson were, oddly, never prosecuted, charged civilly, or immunized. The prosecutors never established their motives for leaking information, but common sense suggests that they felt a sense of self-importance as they gave up valuable information to friendly acquaintances in a bar and that they also hoped for some kind of payback from their friends sometime if not immediately. But that hope is not enough for a criminal prosecution under the Second Circuit’s decision.
      At the time of the ruling, the New York Times financial columnist James B. Stewart wrote that this kind of insider dealing “undermines investor confidence in the integrity of the market and creates the perception of a rigged game stacked against the average investor.” In the ruling, Parker is unsympathetic. “Nothing in the law requires a symmetry of information in the nation’s securities markets,” he wrote.
      Securities law expert Peter Henning at Wayne State Law School in Detroit is similarly unmoved. “On Wall Street, they’re all sharks,” Henning, a former SEC enforcement lawyer, says. “If you want to swim with sharks, be careful.” 
      The cases that Bharara dismissed last week included one good-sized shark: Michael Steinberg, a former high-ranking employee at the notorious SAC Capital, whose founder, Steven A. Cohen, has so far escaped prosecution altogether. Steinberg was convicted after trial; the six other cases dropped were against defendants who pleaded guilty, some of whom testified in the Steinberg, Newman, or Chiasson trials.
      Many average investors will be surprised to learn that there is no statute that makes insider trading illegal. The prosecutions stem from the SEC’s interpretation of the broad anti-fraud Rule 10(b) that has been upheld and shaped by the courts. Congress has been urged to write a statute to make the rules clearer and more definite.
      Henning and fellow securities law expert Thomas Hazen at the University of North Carolina Law School are among those who want Congress to do just that. One approach would be to establish a bright line that trading on confidential information is illegal putting tipper and tippee alike in the crosshairs. Hazen said a congressional staffer asked for some advice on the issue, but he doubts that this Congress will actually tackle the subject. So for now insiders in the Second Circuit's territory can leak and their friends can trade just as long as nothing more than friendship is exchanged.

Sunday, October 18, 2015

Business Groups Eye Court for Limits on Class Actions

      Even for Supreme Court nerds, the legal issue in the case argued on Wednesday [Oct. 14] might have seemed impenetrably technical and minimally significant at most. But the stakes in Campbell-Ewald Co. v. Gomez are actually quite high as business groups join the Michigan-based marketing company in backing a legal tactic to kill potential class action suits before they can get started.
      Jose Gomez sued Campbell-Ewald under the federal Telephone Consumer Protection Act for an unsolicited recruiting message the company sent out under contract with the U.S. Navy. The company offered to pay Gomez $1,503 for each unsolicited message and to promise to send no more. Gomez, who had filed the suit as a potential class action on behalf of other privacy-invaded text message users, never accepted the settlement.
      At the Supreme Court, the company’s high-priced Washington lawyer, former U.S. solicitor general Gregory Garre, argued the case was over: moot, in legal terms. Gomez’s attorney, Stanford law professor Jonathan Mitchell, said, in essence, not so fast. And, however technical the issue might seem, the justices divided predictably along ideological lines, with three conservatives eager to kick the case and three liberals not so much.
      The case is one of three that the Roberts Court conservatives have teed up for the term in what appears to be a continuing campaign to rein in class actions. Consumers, workers, and investors use this legal device to pool low-figure legal injuries into financially viable lawsuits against business defendants. Business interests regard them as a form of legal blackmail that companies settle to avoid expensive litigation and the risk of seven- or eight-figure damage awards.
      Two more class action cases are set for argument in November. In Tyson Foods Co. v. Bouaphakeo, the big food processing company wants to thwart a class action brought by workers who say they are being denied overtime for time spent putting on or taking off work-required protective gear (argument: Nov. 10). In the other, Spokeo, Inc. v. Robins, the search engine company is seeking to avert a class action brought under the Fair Credit Reporting Act by a Chicago man allegedly injured by inaccurate information reported about him (argument: Nov. 2).
      The U.S. Chamber of Commerce has joined in each of the cases with various other business and conservative interest groups to urge the court to rule for the companies and limit legal tactics for plaintiffs in future cases. The Chamber has an impressive 69 percent win rate with the Roberts Court: higher than the 56 percent win rate with the Rehnquist Court, according to the Constitutional Accountability Center.
      Those business victories includ several big ones that limit class actions. In the highest-profile decision, the court in 2011 spared Walmart, the nation’s largest private employer, from a big sex discrimination suit brought on behalf of women employees. The 5-4 ruling in Wal-Mart Stores, Inc. v. Dukes, divided along ideological lines, forced plaintiffs’ attorneys to slice the suit into smaller pieces under procedural rules that still blocked success.
      In last week’s case, Garre made clear that class actions are the target in Campbell-Ewald’s seemingly arcane civil procedure question. “As a practical matter,” Garre told the justices, plaintiffs in class actions “get pennies on the dollars for their claim. The big money goes to the class-action lawyers.”
      From the bench, Justice Elena Kagan tried to steer the argument away from that debate. “Both sides have these class action policy arguments,” Kagan told Garre. “But it’s important not to let those drive this pretty technical mootness question.” Kagan, along with liberal colleagues Ruth Bader Ginsburg and Sonia Sotomayor, repeatedly insisted that Campbell-Ewald had not offered Gomez “complete” relief for his claim because he still had a request for attorney’s fees and a permanent court-ordered injunction.
      From the opposite perspective, Chief Justice John G. Roberts Jr. wondered why a court should “waste its time” on Gomez’s case, but he recognized what was at stake. “This is all about class certification,” Roberts told Gomez’s attorney, Mitchell. Conservatives Antonin Scalia and Samuel A. Alito Jr. signaled their distaste for the suit just as bluntly. Alito in particular echoed Garre’s unfavorable opinion about class action lawyers.
      As usual, Justice Anthony M. Kennedy appeared likely to hold the decisive vote. In an early exchange with Garre, Kennedy indicated he was not buying the argument for ditching the case, as a matter of civil procedure. Kagan’s effort to defuse the policy arguments may have been intended to give Kennedy a narrow ground to join the liberal bloc without going back on his previous votes to limit class actions.
      The Obama administration backed the plaintiffs’ side of the case — in contrast to the Bush administration’s support for business defendants in previous class action cases. Liberal groups backed Gomez, but so did the conservative National Right to Work Legal Defense Foundation, which uses class actions to sue labor unions.
      The plaintiffs’ bar fears that a ruling for Campbell-Ewald will give business defendants a road map for blocking class actions by paying off individual plaintiffs one at a time  — in effect, for pennies on the dollar of the potential awards in a mass suit. Given the Roberts Court’s pro-business track record, they have reason to worry.

Sunday, October 11, 2015

Hope in Congress for Sentencing Reform?

      Criminal justice reformers have joined with fiscal conservatives in an improbable alliance to reduce the population of the nation’s federal prisons. It turns out that sending low-level drug offenders into overcrowded prisons for years on end, based on mandatory minimum sentences with little leeway for judges to exercise discretion or even common sense, is both expensive and counterproductive. Who knew?
      The broad agreement on federal sentencing reform is behind the impending release of some 6,000 drug offenders at the end of the month under a policy adopted more than a year ago by the U.S. Sentencing Commission with acquiescence by Congress. The long-planned release made front-page news last week, but it “barely scrapes the surface” of the problems in the 30 percent overcapacity federal prison system, according to the Marshall Project, the invaluable compendium of criminal justice news.
      Sentence reformers are now turning their lonely eyes to Congress after broad measures with bipartisan cosponsors were introduced in both the Senate and the House of Representatives. Douglas Berman, a professor at Ohio State University’s Moritz College of Law and author of the comprehensive blog Sentencing Law and Policy, was so encouraged as to foresee the possibility that a bill could reach the president’s desk for signature by the end of this year.
      Berman’s optimism seems at odds with the evidence of dysfunctionality on Capitol Hill, accentuated by Republicans’ chaotic inability to choose their candidate for Speaker of the House. Still, the reformers appear to have succeeded in overcoming their biggest single obstacle by getting the very skeptical Senate Judiciary Committee chairman, Iowa’s Charles Grassley, to sign on as lead sponsor of the Senate measure along with three other Republicans and five Democrats.
      The Senate bill, introduced Oct. 1, runs 141 pages, so long that Berman confessed on his blog that he was not yet ready to analyze it in detail. Grassley confirmed his support in an op-ed in his home state Des Moines Register by describing the provisions as “carefully crafted sentencing reforms . . . that do not compromise public safety or national security.”
      The House bill, a more compact 18 pages, was introduced on Oct. 8 with bipartisan support from the chairman, ranking Democrat, and other members of the House Judiciary Committee. On his blog, Berman described introduction of the Senate bill as a “huge development.” The House measure made him “a bit more optimistic” about possible enactment in 2015.
      Both bills take significant swipes at the mandatory-minimum craze in Congress from the 1980s and ’90s that gave drug offenders and armed felons long sentences beyond federal judges’ ability to soften. Both bills reduce some of the mandatory minimums for drug offenses and eliminate the current three-strike mandatory life provision. That provision parallels laws enacted in several states and upheld by the Supreme Court in 2003 against a challenge under the Eighth Amendment’s Cruel and Unusual Punishment Clause (Ewing v. California, Lockyer v. Andrade).
      The two bills also widen somewhat the existing “safety valve” provision to give federal judges somewhat more leeway to soften sentences in individual cases. The Senate bill creates a second safety-valve to allow judges to sentence some offenders below 10-year minimums, but stresses that defendants convicted of “serious violent and serious drug felonies” will not benefit from the provision. And both bills would apply the provisions retroactively.
      Smooth passage of bills is by no means assured in either chamber. Writing on the blog Crime and Consequences of the pro-law enforcement Criminal Justice Legal Foundation, former federal prosecutor William Otis began picking the Senate bill apart by noting a provision to ease add-on minimums for defendants convicted of using a firearm in a drug felony.
      Otis, an outspoken opponent of sentencing reform as the issue has gained support, noted that senators introduced the bill on the same day as the mass shooting at a community college in Oregon. “What were these people thinking?” Otis asked, even while acknowledging that the Oregon shooter had no apparent connection to drug-dealing.
      Criminal justice reformers have long argued that the long, mandatory sentences that Congress authorized and presidents of both parties signed into law scooped up many low-level offenders. The advocacy group Families Against Mandatory Minimums lobbied to soften the terms and slowly picked up support from libertarians and fiscally-minded conservatives.
      Congress took a modest step in 2010 by passing a bill that eliminated the racial disparity between sentences for crack and powder cocaine. With support for broader steps increasing among conservatives, the Republicans’ gains in the 2014 midterm elections stirred speculation that sentencing reform’s time could be coming.
      Earlier, however, the Sentencing Commission, the independent judicial agency, had voted in April 2014 to authorize two-step reductions in sentences for some federal drug offenders. Once Congress had failed to block the so-called “drugs -2” policy, the seven-member commission directed that releases were to begin in November 2015. The one-year lead time gave federal judges time to rule on individual cases; about 2,000 applications for reduced sentences have been denied so far.
      With bills pending in Congress, Berman raised the question whether the Sentencing Commission could institute some of the reforms on its own. Berman is entitled to his optimism, but longtime Capitol Hill observers may rightly see the latter suggestion as more fruitful than hoping for Congress to act.