Category Archives: Current Events in Law

The Supreme Court’s Mixed Signals in Packingham

July 10, 2017,        Guest Post

by Bidish Sarma.  Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.
Near the end of the term, the Supreme Court handed down its decision in Packingham v. North Carolina.

The outcome was a slam-dunk victory for Mr. Packingham—a registered sex offender—and proponents of robust free speech protections around the country. The Court left no doubt about its commitment to protecting the First Amendment (all eight presiding justices agreed that the law at issue was unconstitutional), but it sent mixed signals about whether it would author a new chapter in its dealings with individuals convicted of sex offenses. This is an increasingly important question because for many years now sex offenders have been the target of unique, restrictive and hyper-punitive legislative schemes that raise deep constitutional questions. If the Court ducks these questions, similarly dubious laws may be used to target other groups, including individuals who have committed no crimes at all. Nobody seriously questions a legislature’s interest in protecting individuals from sexual violence. But, the time has come to ask whether society’s “war” on sex offenders who have already completed criminal sentences has gone too far.
Packingham involved a North Carolina statute that prohibited registered sex offenders from accessing an astounding range of websites (including news websites, WebMD and Amazon). The defendant was arrested for violating the law after he posted a message on Facebook praising God because a court had dismissed a traffic ticket without imposing any fine or other punishment. In striking down the sweeping restraint on internet use, Justice Kennedy’s majority opinion acknowledged the state’s interest in preventing sex offenders from using technology to facilitate crimes, but held that the “statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” The law’s breadth and the Court’s robust protection of free speech may best explain the result. Thus, Packingham may well be “the rare case” in which the Supreme Court rules in favor of sex offenders.
If, however, the Court is more broadly worried about laws that may infringe on the rights of people who have been convicted of sex offenses, the First Amendment is not the only amendment that requires judicial enforcement. Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”
Individuals who have seen or experienced the devastation wrought by society’s moral panic about sex offenders must feel a small measure of hope now that the Court has given a nod to the “troubling” restrictions so many endure. From a constitutional perspective, there is little doubt that the laws are damaging in a number of ways. Most plainly, they ensnare far more people than most of us realize. While the average person tends to think that an individual labeled a “sex offender” committed a violent crime like rape, thousands of the more than 747,000 registered sex offenders in the United States were convicted of crimes like public urination, streaking and consensual (but illegal) teenage sex.
Even setting aside this serious problem of the legal conflation of child molesters with teenage pranksters—a problem that poses a real public safety concern by undermining the utility of registries—state laws dealing with sex offenders who have already served time curtail liberty to an extreme degree. A subset of these offenders are subjected to civil commitment, meaning the state detains them in prison-like conditions (where they are theoretically treated for mental health problems that make them dangerous). In several states, this involuntary detention is indefinite. These people will die in state custody. Many states and localities also impose severe residency and travel restrictions on released sex offenders, making it so difficult to find living arrangements in some places that affected citizens are forced to live on the streets and under bridges. Research suggests that such laws may actually increase the odds that these individuals will commit crimes again.
Add to this mix the demanding registration and notification requirements placed on sex offenders. These laws severely punish a wide range of conduct, including failures to register, failures to pay registration fees and even failures to notify authorities of an intent to move to a new residence before and after the move. A powerful amicus brief filed by several highly-respected law professors in a recent case dealing with Michigan’s sex offender laws summarizes how this panoply of restrictions effectively banishes sex offenders from society. The state has
retroactively placed punitive and highly burdensome restrictions on those convicted of sex offenses, including extensive requirements to appear frequently in person at police departments, as well as restrictions on their movement, residency, and place of work. These restrictions stem automatically from their convictions, with no individualized determinations. These regulations are . . . punitive rather than regulatory in their effect.
The problem with this “punitive” approach is that the restrictions imposed are not part of a defendant’s criminal sentence; these individuals have already served their time and yet get punished again and again. Considering the laws we have passed, Professor Corey Rayburn Yung is certainly correct when he writes, “[i]t is difficult . . . to name a group in the United States that is more reviled than sex offenders.” So, the Court has good reasons to be worried about “troubling” and “severe” restrictions that have put a crushing weight on the lives of sex offenders. But, Packingham was not an all-around win for those disturbed by how we treat these people. In that case, we can see two indications that the Court continues to propagate the myth at the core of our nation’s moral panic: that individuals convicted of sex offenses are almost certain to commit more sex crimes if they are released.
The first flare came during the oral argument. At one point, Justice Sotomayor seemed to accept the basic claim that the sex offender recidivism rate is abnormally high. According to the argument transcript, she said “Yes. There’s a high statistical inference that recidivism will follow with one sexual crime to another . . . .” The second signal appeared in Justice Alito’s concurring opinion. In it, he wrote that “[r]epeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’ McKune, supra, at 33 (plurality opinion) . . . .”
If the Court is looking to its own past for its understanding of sex offender recidivism, it is no wonder that the justices continue to embrace the myth that the recidivism rate is alarming. In 2002, in McKune v. Lile, the Court described the risk of sex offender recidivism as “frightening and high.” It went further, citing a Department of Justice publication for the proposition that “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” This astronomical number is certainly frightening. But, it is also blatantly wrong.
A number of experts, researchers and journalists have stepped forward in recent months to illuminate the Court’s profound misstep in McKune. In the New York Times in March, Supreme Court reporter Adam Liptak pointed out that the lawyer for North Carolina in Packinham stated during the oral argument that “[t]his court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again.” Liptak explains that “there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.” Professor Ira Mark Ellman and Tara Ellman excavated the truth about the source Justice Kennedy relied upon in McKune: the DOJ publication cited one source for the 80 percent figure, “an article published in 1986 in Psychology Today, a mass market magazine . . . [that used 80% as] a bare assertion: the article contains no supporting reference for it.”
David Feige recently compiled the real statistics:
The recidivism statistics the court cites are dead wrong as a matter of social scientific fact. In reality, sex offenders have among the lowest same-crime recidivism rates of any category of offender. Indeed, in the most comprehensive single study on reoffense rates to date, the U.S. Department of Justice followed every sex offender released in almost 15 states for three years. The recidivism rate? Just 3.5 percent. These numbers have been subsequently verified in study after study. The state of Connecticut Criminal Justice Policy and Planning Division did a five-year study that found a recidivism rate of 3.6 percent. A Maine study found that released sex offenders were arrested for a new sex crime at a rate of 3.9 percent. Government studies in Alaska, Delaware, Iowa, and South Carolina have also replicated these results—all finding same-crime recidivism rates of between 3.5 and 4 percent.
In short, the 80 percent number is pure rubbish. But, the Court’s elevation of that myth has caused a lot of damage in the past 15 years. Lower courts around the country have cited it over and over again to justify the raft of draconian laws used to restrict the liberty of individuals who have already paid their debts to society.
When North Carolina (and other states) attempted to justify restrictions on the right of sex offenders to access important websites by invoking claims about the recidivism rate, the Court had an opportunity to correct its previous error. Professor Melissa Hamilton produced an excellent article explaining that, with respect to the recidivism claims, the states’ legal representatives were either “naïve and uneducated” or “intentionally misleading” the Court. Yet, rather than seize the chance to clear things up, the Court continued down the trodden path. Justice Sotomayor appeared to agree with the claim of a “high statistical inference” of recidivism. And, though Justice Alito was careful not to cite directly the debunked 80 percent figure, the concurring opinion relied on McKune to emphasize the notion that sex offenders are uniquely dangerous. (A dispute about Alito’s factual claims arose when the Washington Post ran a fact-check that was subsequently challenged by the National Review. Professor Carissa Byrne Hessick best clears up the confusion when she explains that Alito’s opinion is misleading, but not for the reason the Washington Post identified: “Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate. The problem with this paragraph is . . . the claim ‘[r]epeat sex offenders pose an especially grave risk to children.’ . . . [T]he facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.”) Alito’s opinion is not misleading on the scale of the “frightening and high” farce, but it certainly pours more fuel on the fire that is the myth that sex offenders are bound to commit more offenses, particularly against our children.
More cases are coming. The Court recently asked the solicitor general to weigh in on a petition emerging from a Sixth Circuit opinion that actually struck down the Michigan laws mentioned earlier. (One does not need much of an imagination to predict how the “tough-on-crime” Trump Administration will come down on that question.) And, when the Court comes back to session after the summer recess, it will decide whether to review a case involving the Minnesota Sex Offender Program—a civil commitment scheme that confines over 700 individuals, and at the time of the class-action trial, had never released a single individual in two decades even though the state concedes that many offenders are no longer dangerous (the case materials can be found here). If the Court is genuinely concerned—and it should be—it can soon address the severe restrictions that dominate the legal landscape. Standing up for constitutional rights—even of very unpopular groups—is critical at a time when it looks like our nation could easily begin to tumble down the slippery slope of abridging them.

The Volokh Conspiracy Opinion How a high school student’s painting caused congressional Republicans to act like campus snowflakes By Jonathan H. Adler l student’s painting inspired by the police shooting and subsequent unrest in Ferguson, Mo., will be removed from the nation’s Capitol next week because some members of Congress are offended by the artist’s viewpoint. Specifically, some members of Congress believe the painting must be removed because it is “offensive” and “disrespectful” to law enforcement because it depicts police officers as “pigs.” The painting at issue (shown below) was put on display as part of the annual Congressional Art Competition sponsored by the Congressional Institute. As part of this competition, each congressional office selects a painting from a high school student from within his or her district, and they are displayed along a hallway for the year. This picture, “Untitled #1″ by David Pulphus, was put up with other winners in June. Other paintings in the competition displayed along the same hallway celebrate military service and a soldier’s return home. Some depict historical injustice, and others are overtly patriotic. (All the paintings from the competition may be found here.) There was not much controversy about the painting until conservative commentators began noting it in December — some six months after the painting was put on display. These commentators, and some members of Congress, objected that the painting was offensive and disrespectful to law enforcement, and to Capitol Police officers in particular, who must work nearby. As Rep. Dave Reichert (R-Calif.) commented, “It is disheartening to see this depiction of law enforcement hanging in the hallway of our nation’s Capitol where officers work everyday to protect our safety and freedoms.” Not content to criticize the painting or celebrate law enforcement officers, some members of Congress called for the painting’s removal. Rep. Duncan D. Hunter (R-Calif.) when further, taking it upon himself to physically remove the painting from the wall. The painting’s sponsor, Rep. William Lacy Clay (D-Mo.), restored the painting, only to have it removed again by someone else. As the controversy grew, members of Congress appealed to the House leadership and to the Architect of the Capitol, to ensure that the painting would be permanently removed. Like self-righteous college students, some members of Congress seem to believe that just because a work of art or other expression is “offensive, ” it should be suppressed. While there is no First Amendment right to display art in the Capitol, it is a bedrock First Amendment principle that expression must not be suppressed because of the viewpoint expressed — and that is precisely what is occurring here. That police officers and others are offended by the painting is understandable, but that does not excuse efforts to censor its message. In deciding the painting must be removed, the Architect of the Capitol cited rules prohibiting “exhibits depicting subjects of contemporary political controversy.” There is a fair argument that the painting violated this rule, insofar as it focused on conflict between police and people of color and was motivated by the police shooting in Ferguson. Yet if that were the issue, one would have expected the architect to refuse to post the painting in the first place when this year’s finalists were first put on display. Instead, the painting hung there for months, unremarked upon until some folks sought to stir up controversy, as have other paintings that have subtle political content, such as this depiction of President Obama and others with patriotic themes noted above. This painting was targeted because of its specific message, not because it is too political. As has been clear from the beginning of this controversy, the objections to this painting center on the painting’s message — the viewpoint it appears to express — and nothing else. On Thursday, someone placed a “Blue Lives Matter” flag on the wall above the painting. Whether or not such an impromptu display is allowed under the Capitol’s rules, this is a much more appropriate response than stealing the painting from the wall or otherwise seeking to have it removed. Displaying the Blue Lives Matter flag is a way to express disapproval of the painting’s message and endorse a counter-message. It is, in short, responding to potentially offensive speech with more speech. It is exactly what conservatives (and others) tell college students to do when they are confronted by speech that offends them, whether it’s an art installation or a speech by an Internet provocateur. Let me reiterate that I understand why some people find this painting to be particularly offensive, and I have no problem with members of Congress or others expressing that point of view. Insofar as some believe police officers often get a bum rap — in Ferguson or elsewhere — they should explain why this is so. They should not seek to censor or suppress the messages with which they disagree. It’s distressing when easily offended college students demonstrate a lack of awareness of First Amendment principles and the importance of free speech and open discourse. It is even more disheartening, however, when our elected representatives — those who take an oath to preserve and protect our Constitution — follow suit.

 I admit that I did partially edit this post due to grammatical errors. Yet the message is precise the First Amendment must be upheld.

How a high school student’s painting caused congressional Republicans to act like campus snowflakes

January 14 at 2:55 PM
A high school student’s painting inspired by the police shooting and subsequent unrest in Ferguson, Mo., will be removed from the nation’s Capitol next week because some members of Congress are offended by the artist’s viewpoint. Specifically, some members of Congress believe the painting must be removed because it is “offensive” and “disrespectful” to law enforcement because it depicts police officers as “pigs.”The painting at issue (shown below) was put on display as part of the annual Congressional Art Competition sponsored by the Congressional Institute. In the context of this competition, each congressional office selects a painting from a high school student from within his or her district, and they are displayed along a hallway for the year. This picture, “Untitled #1″ by David Pulphus, was put up with other winners in June. Other paintings in the competition displayed along the same hallway celebrate military service and a soldier’s return home. Some depict historical injustice and others are overtly patriotic. (All the paintings from the competition may be found here.)

There was not much controversy about the painting until conservative commentators began noting it in December — some six months after the painting was put on display. These commentators, and some members of Congress, objected that the art was offensive and disrespectful to law enforcement, and to Capitol Police officers in particular, who must work nearby. As Rep. Dave Reichert (R-Calif.) commented, “It is disheartening to see this depiction of law enforcement hanging in the hallway of our nation’s Capitol where officers work every day to protect our safety and freedoms.”

Not content to criticize the painting or celebrate law enforcement personnel, some members of Congress called for the painting’s removal. Rep. Duncan D. Hunter (R-Calif.) when further, taking it upon himself to physically remove the painting from the wall.  The painting’s sponsor, Rep. William Lacy Clay (D-Mo.), restored the painting, only to have it removed again by someone else. As the controversy grew, members of Congress appealed to the House leadership and to the Architect of the Capitol, to ensure that the painting would be permanently removed.

Like self-righteous college students, some members of Congress seem to believe that just because a work of art or other expression is “offensive, ” it should be suppressed. While there is no First Amendment right to display art in the Capitol, it is a bedrock First Amendment principle that expression must not be suppressed because of the viewpoint expressed — and that is precisely what is occurring here. That police officers and others are offended by the painting is understandable, but that does not excuse efforts to censor its message.

In deciding the painting must be removed, the Architect of the Capitol cited rules prohibiting “exhibits depicting subjects of contemporary political controversy.” There is a fair argument that the painting violated this rule, insofar as it focused on the conflict between police and people of color and was motivated by the police shooting in Ferguson. Yet if that were the issue, one would have expected the architect to refuse to post the painting in the first place when this year’s finalists were first put on display. Instead, the painting hung there for months, unremarked upon until some folks sought to stir up controversy, as have other paintings that have subtle political content, such as this depiction of President Obama and others with patriotic themes noted above. This painting was targeted because of its particular message, not because it is too political. As has been clear from the beginning of this controversy, the objections to this painting center on the painting’s message — the viewpoint it appears to express — and nothing else.

On Thursday, someone placed a “Blue Lives Matter” flag on the wall above the painting. Whether or not such an impromptu display is allowed under the Capitol’s rules, this is a much more appropriate response than stealing the painting from the wall or otherwise seeking to have it removed. Displaying the Blue Lives Matter flag is a way to express disapproval of the painting’s message and endorse a counter-message. It is, in short, responding to potentially offensive speech with more speech. It is precisely what conservatives (and others) tell college students to do when they are confronted by speech that offends them, whether it’s an art installation or a speech by an Internet provocateur.

Let me reiterate that I understand why some people find this painting to be particularly offensive, and I have no problem with members of Congress or others expressing that point of view. Insofar as some believe police officers often get a bum rap — in Ferguson or elsewhere — they should explain why this is so. They should not seek to censor or suppress the messages with which they disagree.

It’s distressing when easily offended college students demonstrate a lack of awareness of First Amendment principles and the importance of free speech and open discourse. It is even more disheartening, however, when our elected representatives — those who take an oath to preserve and protect our Constitution — follow suit.

Free Speech Has Never Been Free, by Jazmine Filson

Introduction

The ideal of free speech has never been free. Since the ratification of the First Amendment guaranteeing our right to freedom of expression, there have been challenges to its application. Today’s generation termed, Generation Z, is transforming education from content to process driven, from knowledge input, to analysis and implementation. Due primarily to the expanded public forum of social media (Education – Generation Z. 2013). Therefore, public high school students require the full plethora of free speech benefits to learn and foster meaningful rhetorical education. Students today are tomorrows’ leaders, to hinder student speech is to stifle social and political knowledge. Change is necessary, look at the events at Dixie State University where that the majority of college students accepted the infringement of their right to dissent. The marketplace of ideas requires students to have a full airing of all opinions.

High school students throughout the public sector do not possess unlimited First Amendment rights (Hudson, D. L., Jr. 2002). As the Supreme Court has said, minors do not possess the same level of constitutional rights as adults. Since the tragedy at Columbine High School in Littleton, Colorado in April of 1999, student expression has been increasingly stultified. Public dissent was stifled at Richland High School when the school principal publically reprimanded senior Rebecca Young in August 2015, for wearing a shirt that read “Some People Are Gay, Get Over It” (Esseks, J. 2015). The school principal prohibited any clothing expressing support for the Lesbian, Gay, Bisexual & Transsexual (LGBT) community. Subsequently, a federal court injunction was awarded permitting Rebecca Young the free speech right to express her political views (Young v. Giles County. Bd. of Educ., 2015).  In Christiansburg, Virginia, at the Christiansburg High School (CHS),17 high school students were given out-of-school suspensions for failing to remove Confederate flag attire that school officials deemed were offensive. According to Houston Miller, a senior at CHS, “We just wanted to get our point across that nobody here is racist. Moreover, we’re trying to get that in our school. They banned one flag so we think they should ban all.” The danger of this type of suppression lies in the doctrine of prior restraint. Prior restraint doctrine ascribes to the idea that an individual would feel constrained from freely expressing themselves due to the social or legal restrictions imposed on others. Therefore, other students would feel constrained from expressing their views and opinions. Supreme Court Justice John Marshall eloquently opined, “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” (Stevens, J. (1992-1993).

College students are not exempt to speech suppression either. At Dixie State University, three students were prohibited from distributing a flyer which criticized former President George W. Bush, President Barack Obama, and Cuban revolutionary Che Guevara, because they disparaged individuals in violation of university policy. Highlighted on John Stossel’s, television special “Censorship in America,” the students sued in the Utah U.S. District Court and prevailed with a stipulated agreement. The University agreed to revise its policies permanently. Most college students have reached the age of majority and receive the full scope of First Amendment rights. They are deemed of age and capable of fighting wars; college students must be able to exercise sufficient maturity and judgment to formulate independent opinions. However, citizenship requires responsible speech and actions of all of us. Every right and benefit bestowed, upon society comes with responsibilities, and malicious speech can have devastating effects.

The research definition for bullying victimization is “unwanted, intentional, aggressive behavior among school-aged children that involves a real or perceived power imbalance that is often repeated over time or has the probability of occurring again” (Espelage, D. L. 2014). In the article, It’s Not Just Teasing, (Saltzman, A. 1993, at 73.) a six-year-old, child was subjected to lewd, obscene, and profane harassment by her fellow students on her school bus which resulted in creating psychological and emotional suffering. The consequences were dire for 17-year-old Michael J. Berry, who had been subjected to cyber-bullying and sexual harassment before he committed suicide on September 16, 2008, at Mira Loma High School, in Carmichael, California (Jani, S. 2015). These are just two of many harms caused by a peer-to-peer speech in its various forms. Harassing and hate speech prohibitions are a necessary component of the regulatory structure of public schools. School administrators face a challenge regarding speech; speech restrictions which are guided by a trio of Supreme Court cases with which officials must comply such as (1) vulgar, lewd, obscene, and plainly offensive speech, (2) school-sponsored speech, and (3) speech that falls into neither of these categories. The standard for reviewing the suppression of vulgar, lewd, obscene, and plainly offensive speech is governed by, Bethel School District v. Fraser, 1986, school-sponsored speech by, Hazelwood School. District. v. Kuhlmeier, 1988, and all other speech by, Tinker v. Des Moines Independent Community School District, 1969. The Supreme Court has yet to review a case specifically regarding non-threatening harassment prohibitions in public schools.

The correlation between freedom of expression and progress is explicit. Historically, science was considered blasphemy by the public. Moreover, without science life would not exist as we know it today. All terms of expression must be tolerated in the public forum. While order in public schools is necessary to accommodate an efficient learning environment, the risk of suppression of thoughts and ideas does not justify the restrictions. Schools must permit any form of speech presented in an orderly manner and debate the idea or concept presented. In this manner, deplorable or specious expressions will be exposed. The presentation of all ideas will foster education and without free-speech, women would not be able to vote, racial, and sexual minorities would remain suppressed, and society would be poorer for it. A society open to challenging opinions will gain tolerance and greater liberty. The marketplace of ideas requires students to have a full airing of all opinions.

 

 

 

References

Bethel School District No 403 v. Fraser, 478 U.S. 675, 106 S … (n.d.). Retrieved from http://miketullylaw.com/library/SCOTUS/Bethel_Fraser.pdfCenters for Disease Control and Prevention (June 15, 2012).

Education – Generation Z. (2013, November 17). Retrieved January 27, 2016, from http://generationz.com.au/education/

Esseks, J. (2015, September 23). Censored: Retrieved January 20, 2016, from https://www.aclu.org/blog/speak-freely/censored-some-people-are-gay-get-over-it

FREEDOM OF SPEECH, PRESS, PETITION & ASSEMBLY – Free Republic. (n.d.). Retrieved from http://www.freerepublic.com/focus/fr/591395/posts

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592, 1988 U.S. LEXIS 310, 56 U.S.L.W. 4079, 14 Media L. Rep. 2081 (U.S. 1988)

Hudson, D. L., Jr. (2002, September 28). First Amendment Center. Retrieved January 26, 2016, from http://www.firstamendmentcenter.org/k-12-public-school-student-expression-overview

Jani, S., MD. (n.d.). Join our efforts to support. Retrieved January 26, 2016, from http://www.bravesociety.org/

K-12 public school student expression overview | First … (n.d.). Retrieved from http://www.firstamendmentcenter.org/k-12-public-school-student-expression-overvi

Saltzman, A. (1993, December 6). Its Not Just Teasing [Editorial]. US News and World Report, 73-77. Retrieved January 26, 2016.

Sexual Violence. Retrieved July 14, 2013, from Espelage, D. L. 2014). Using NCES Surveys to Understand School Violence and Bullying, 9-10. Retrieved January 26, 2016, http://www.cdc.gov/ViolencePrevention/sexualviolence/.

Stevens, J. (1992-1993). Freedom of Speech, The. Yale Law Journal 102(6), 1293-1314.

Stossel, J. (Director). (2015). Censorship in America [Motion picture on Television]. United States: Fox News.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731, 1969 U.S. LEXIS 2443, 49 Ohio Op. 2d 222 (U.S. 1969)

VICTORY: Lawsuit Settlement Restores Free Speech Rights at … (n.d.). Retrieved from https://www.thefire.org/victory-lawsuit-settlement-restores-free-speech-rights-a

 

Income Inequality Is Costing the U.S. on Social Issues

Thirty-five years ago, the United States ranked 13th among the 34 industrialized nations that are today in the Organization for Economic Cooperation and Development in terms of life expectancy for newborn girls. These days, it ranks 29th.In 1980, the infant mortality rate in the United States was about the same as in Germany. Today, American babies die at almost twice the rate of German babies “On nearly all indicators of mortality, survival and life expectancy, the United States ranks at or near the bottom among high-income countries,” says a report on the nation’s health by the National Research Council and the Institute of Medicine.What’s most shocking about these statistics is not how unhealthy they show Americans to be, compared with citizens of countries that spend much less on health care and have much less sophisticated medical technology. What is most perplexing is how stunningly fast the United States has lost ground.The United States has the highest teenage birthrate in the developed world — about seven times the rate in France, according to the O.E.C.D. More than one out of every four children lives with one parent, the largest percentage by far among industrialized nations. And more than a fifth live in poverty, sixth from the bottom among O.E.C.D. nations.Among adults, seven out of every 1,000 are in prison, more than five times the rate of incarceration in most other rich democracies and more than three times the rate for the United States four decades ago.The point is: The United States doesn’t have a narrow health care problem. We’ve simply handed our troubles to the medical industry to fix. In many ways, the American health care system is the most advanced in the world. But whiz-bang medical technology just cannot fix what ails us.

As economists from the University of Chicago, M.I.T. and the University of Southern California put it in a recent research paper, much of America’s infant mortality deficit is driven by “excess inequality.”American babies born to white, college-educated, married women survive as often as those born to advantaged women in Europe. It’s the babies born to nonwhite, nonmarried, nonprosperous women who die so young.Three or four decades ago, the United States was the most prosperous country on earth. It had the mightiest military and the most advanced technologies known to humanity. Today, it’s still the richest, strongest and most inventive. But when it comes to the health, well-being and shared prosperity of its people, the United States has fallen far behind.Pick almost any measure of social health and cohesion over the last four decades or so, and you will find that the United States took a wrong turn along the way.

How did we get here? How do we exit?As the presidential campaign draws the political debate to our national priorities, these questions must take center stage. As candidates argue over the budget deficit and the national debt, debate what to do about income inequality, address the problem of mass incarceration or refight the battles over the Affordable Care Act and the minimum wage, they should be forced to address how their policy wish list adds up to an answer.Continue reading the main storyContinue reading the main storyContinue reading the main story.

Looking at how the United States compares with other nations is illuminating. As I noted in last week’s column, over the last four decades or so, the labor market lost much of its power to deliver income gains to working families in many developed nations.But blaming globalization and technological progress for the stagnation of the middle class and the precipitous decline in our collective health is too easy. Jobs were lost and wages got stuck in many developed countries.What set the United States apart — what made the damage inflicted upon American society so intense — was the nature of its response. Government support for Americans in the bottom half turned out to be too meager to hold society together.

The conservative narrative of America’s social downfall, articulated by the likes of Charles Murray from the American Enterprise Institute, posits that a large welfare state, built from the time of the New Deal in the 1930s through the era of the Great Society in the 1960s, sapped Americans’ industriousness and undermined their moral fiber.A more compelling explanation is that when globalization struck at the jobs on which 20th-century America had built its middle class, the United States discovered that it did not, in fact, have much of a welfare state to speak of. The threadbare safety net tore under the strain.

Call it a failure of solidarity. American institutions, built from hostility toward collective solutions, couldn’t hold society together when the economic underpinning of full employment at a decent wage gave in.The question is, Is there a solution to fit these ideological preferences? The standard prescriptions, typically shared by liberals and conservatives, start with education, building the skills needed to harness the opportunities of a high-tech, fast-changing labor market that has little use for those who end their education after high school.Ensuring everybody has a college degree might not stanch the flow of riches to the very pinnacle of society. But it could deliver a powerful boost to the incomes and the well-being of struggling families in the bottom half.

And yet the prescription — embedded in the social reality that is contemporary America — falls short. In contemporary America, education is widening inequity, not closing it. College enrollment rates have stagnated for lower-income Americans. Sean Reardon from Stanford University notes that the achievement gap between rich and poor children seems to have been steadily expanding for the last 50 years.On the left, there are calls to build the kind of generous social insurance programs, which despite growing budget constraints remain largely intact among many European social democracies. Senator Elizabeth Warren, Democrat of Massachusetts, for example, is calling for an expansion of Social Security, paid for by lifting the cap on payroll taxes so the rich pay the same share of their income to support the system as everybody else.That may be desirable, though at the moment, our greatest problems are not about the elderly. And at least for the foreseeable future, it remains a political nonstarter in a nation congenitally mistrustful of government. Just in time to kick off the presidential campaign, Republicans in the House and Senate were working on a budget that would gut Obamacare — most likely increasing the pool of the nation’s uninsured — and slash funding for programs for Americans of low and moderate income.Yet despite the grim prognosis, there is hope. The challenge America faces is not simply a matter of equity. The bloated incarceration rates and rock-bottom life expectancy, the unraveling families and the stagnant college graduation rates amount to an existential threat to the nation’s future.

Yet despite the grim prognosis, there is hope. The challenge America faces is not simply a matter of equity. The bloated incarceration rates and rock-bottom life expectancy, the unraveling families and the stagnant college graduation rates amount to an existential threat to the nation’s future.That is, perhaps, the best reason for hope. The silver lining in these dismal, if abstract, statistics, is that they portend such a dysfunctional future that our broken political system might finally be forced to come together to prevent it.

The Trend is moving towards limited Practice for Paralegals

The practice of law appears to be moving the way of the medical profession. Washington, prepares to license Paralegals to operate independently in limited areas of law. California and Massachusetts are also moving that direction. This move will be a boon for consumers and drive down rates for many civil actions, everyday Americans use. Review the link below to find the opinions of the American Bar Association (“ABA”) on this change of direction.

http://www.abajournal.com/magazine/article/washington_state_moves_around_upl_using_legal_technicians_to_help_close_the

If the link isn’t available copy and post to your browser.

The Oppression by the Bar may be reaching it’s end.

The Issue rests on from the U.S. Supreme Court
The Issue rests on from the U.S. Supreme Court in a suit that will determine whether dental services for whitening teeth must be registered dentists. The decision is expected this spring and relates to right to work and First Amendment right  of free speech. The following article was printed in the Wall Street Journal. Hell Hath No Fury Like a Lawyer Scorned. Please provide feedback on this issue.

Facebook, and other social media, users beware!

Police from all agencies, state and federal, are increasingly focusing on social media. Be leery of your posts and those posting on your sites. Perhaps the best protection is to limit who may post on your sites, to only those who are trusted. This will allow you to monitor what others post, by restricting them to send you a private message with their proposed posting.

While the article below is specific to police, the same is true for individuals and groups who choose to wish you harm. The best defense is prevention!

If this is an area of concern, please contact Filson Paralegal Services LLC through this site.

Fake-out stakeout. For several months now, we’ve been covering the increasingly prevalent use of social media by law enforcement agencies conducting criminal investigations. In one such instance, the FBI sent a link to a fabricated news story to the MySpace page of a high-school-bombing-threat suspect to lure him into downloading malware that revealed his whereabouts. In another, the DEA set up a fake Facebook page in the name of a woman whom the agency was investigating as bit player in a federal drug investigation. All of the scenarios present a unique group of ethical and legal questions that are being debated in the media and in the U.S. court system. Now, a federal judge in New Jersey has sanctioned one such social media evidence gathering tactic: Denying a criminal defendant’s motion to suppress pictures from his private Instagram account, U.S. District Judge William Martini held that police officers did not need a search warrant when they accessed those pictures by friending the defendant using a fake Instagram account. The judge referenced a New York federal district court opinion holding that the government did not violate the Fourth Amendment when it accessed a criminal defendant’s Facebook profile through one of the defendant’s Facebook “friends,” a cooperating witness.
Goggle gaffes? With a market cap of more than $382 billion, incalculable influence over a variety of business sectors, and a name that earned a place in the Oxford English Dictionary in 2006, Google is clearly on a roll as we enter the New Year. Yet, as Forbes contributor Gene Marks notes, the company has had its share of outright flops, and it invests an awful lot of money in products that no one wants to buy. For example, a “solution in search of a problem,” Google Glass has yet to get off the ground. And, because it would likely require giving the government more centralized control over the U.S. transportation system, the driverless car for which Google recently introduced a prototype is apparently years away from being a viable option. But there’s no chance of these seemingly profitless projects taking the tech giant down, according to Marks. Awash with cash from other profitable revenue streams, the company can afford to invest in dream projects that aren’t likely to bring in money anytime soon.Porn again. Illinois became the most recent state to pass a law criminalizing “revenge porn,”sexually explicit photos publicly disseminated (most often by posting them to the Internet) without the subject’s consent, usually by a jilted lover seeking retribution, or by someone who has obtained the pictures by hacking into the victim’s smartphone or computer. The measure, signed into law on December 29, 2014, by Democratic Governor Pat Quinn, makes posting revenge porn a Class 4 felony punishable by one to three years in prison and a fine of up to $25,000. Fourteen other states– including New York, Utah, Texas and California, which recently convicted a man for posting nude photos of his ex – have similar laws. In those states without revenge porn statutes, there are other potential avenues for combatting revenge porn, as we discussed in an early 2014 blog post.

Prosecutors and Police Must be Held Accountable

The circumstances in the story below mimic the situation for Sean Ellis. As long as prosecutors and police are able to lie and deceive the court with impunity, there will be assaults on the justice system of our country.

Sign the petitions and let belated justice be activated. While Derrick Hamilton has finally won his freedom, many more languish in prisons and punitive, supervision due to overzealous prosecution and racist jurisdictions.

Wrongfully Imprisoned Man Cleared of Murder Conviction

Andrew Keshner, New York Law Journal    | 0 Comments

Derrick Hamilton speaks to the media after his conviction was vacated. Wife Nicole is at left.

Derrick Hamilton speaks to the media after his conviction was vacated. Wife Nicole is at left.

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Derrick Hamilton leaves Brooklyn Criminal Court  after his conviction was vacated Friday, holding daughter Maia, 2. At left are two of his attorneys, Scott Brettschneider and Jonathan Edelstein. Wife Nicole is third from left.

Derrick Hamilton leaves Brooklyn Criminal Court after his conviction was vacated Friday, holding daughter Maia, 2. At left are two of his attorneys, Scott Brettschneider and Jonathan Edelstein. Wife Nicole is third from left.

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Judge Guzman

Brooklyn Supreme Court Judge Raymond Guzman

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Derrick Hamilton speaks to the media after his conviction was vacated. Wife Nicole is at left.

Derrick Hamilton speaks to the media after his conviction was vacated. Wife Nicole is at left.

NYLJ/Rick Kopstein3 of 3
Derrick Hamilton leaves Brooklyn Criminal Court  after his conviction was vacated Friday, holding daughter Maia, 2. At left are two of his attorneys, Scott Brettschneider and Jonathan Edelstein. Wife Nicole is third from left.

Derrick Hamilton leaves Brooklyn Criminal Court after his conviction was vacated Friday, holding daughter Maia, 2. At left are two of his attorneys, Scott Brettschneider and Jonathan Edelstein. Wife Nicole is third from left.

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A Brooklyn man who said he was framed by a detective, which led to a wrongful murder conviction and more than 20 years of incarceration, has been cleared of the crime after prosecutors deemed the case’s sole witness unreliable.

Brooklyn Assistant District Attorney Mark Hale told Supreme Court Justice Raymond Guzman (See Profile) the prosecution could no longer stand by Derrick Hamilton’s conviction for the 1991 shooting.

The lone eyewitness, Jewel Smith, was “as a whole unreliable, incredible, and for the most part untruthful,” said Hale, adding that using her as a witness violated Hamilton’s due process rights.

Hamilton, 49, was paroled from state prison in 2011. Lonnie Soury, a spokesman for Hamilton, said Hamilton would be filing a civil suit against the city.

The vacatur is the latest in a growing list of convictions that District Attorney Kenneth Thompson has deemed unjust. Since Thompson became the borough’s top prosecutor last year, his office has undone 10 convictions and dropped the appeal of a habeas grant to an 11th man.

Embattled detective Louis Scarcella, now retired, worked on four of those cases, including Hamilton’s.

Hamilton said Scarcella coerced the testimony against him but Scarcella denies wrongdoing.

Thompson’s office has never faulted Scarcella during court proceedings to vacate unsound cases and Hale did not mention him Friday.

The office has reviewed about 30 cases. Spokeswoman Lupe Todd said some cases the office chose to stand behind were linked to Scarcella but she did not have the exact figure.

The Conviction Review Unit still has about 100 more cases to review, 70 of which are linked to Scarcella. It is one of the nation’s most ambitious efforts to determine whether old cases were handled properly.

In a statement, Thompson said, “The people of Brooklyn elected me to ensure that justice is done and that is what my decision to vacate Derrick Hamilton’s conviction reflects.” He said his office reviewed the crime scene, as well as medical and scientific evidence before concluding the witness account was unreliable.

Hamilton pressed a number of post-conviction challenges. When the Appellate Division, Second Department, ruled on his latest bid last year, the court recognized a freestanding claim of actual innocence by which defendants could challenge their convictions (NYLJ, Jan. 16, 2014).

Though various trial-level courts had recognized the claim, the Second Department was the first appellate court in the state to do so.

In Hamilton’s case, Justice Sylvia Hinds-Radix (See Profile) overruled a summary denial of Hamilton’s latest Criminal Procedure Law §440 motion and ordered a hearing.

No hearing occurred because the office’s Conviction Review Unit took the case instead.

On Friday, Guzman granted Hamilton’s motion, joined by the prosecution, to set aside the conviction pursuant to Criminal Procedure Law §440.10(1)(h). The provision permits a vacatur if the “judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.”

“That a wrong has been corrected is a tribute to the justice system,” Guzman said from the bench, crediting the defense and prosecution for their work on the matter.

The underlying case arose from the fatal shooting of Nathaniel Cash in Bedford Stuyvesant. At the scene of the shooting, Jewel Smith, who was Cash’s girlfriend, had told a detective that she had not seen the shooter. Hamilton said Scarcella pressured her into changing her story.

Though Hamilton attempted at the time to advance an alibi defense, he said he could not do so because one witness was too ill and another too scared to testify.

Smith, the key prosecution witness, testified Hamilton was the shooter.

After Hamilton’s 1993 conviction, but before sentencing, he moved to throw out the verdict; at the motion hearing, Smith said she had testified falsely based on threats from Scarcella.

Scarcella rejected the claim and the bid was denied.

Hamilton was then given a 25-year to life sentence. In post-conviction litigation, Hamilton, among other things, presented new alibi witnesses.

‘There’s Karma in This Case’

During the Conviction Review Unit’s work, prosecutors heard from alibi witnesses and reviewed medical and ballistics reports to poke holes in Smith’s testimony.

While Smith testified Hamilton shot Cash in the chest, records show he was shot in the back. Likewise, ballistics reports showed two guns were used.

During the proceedings Friday, one of Hamilton’s attorneys, Scott Brettschneider of Kew Gardens said Hamilton “never for one second doubted his own abilities to convince a court of law he was innocent.”

He said Hamilton’s interviews with The New York Times spurred the paper’s review of Scarcella’s cases and brought new attention to them.

“In some way, there’s karma in this case,” said Brettschneider, who was Hamilton’s original appellate attorney.

One of Brettschneider’s co-counsel, Jonathan Edelstein of Edelstein & Grossman, also discussed the case and faulted Scarcella.

But at one point Guzman cut him short.

“Detective Scarcella is not on trial here,” the said, later adding he did not “want to go into aspersions at this time.”

“One day in prison is too much for an innocent man,” Hamilton told reporters outside court. “It’s exhilarating. It’s a grateful day. It’s the world to me.”

Hamilton, wearing a hat displaying the words “Wrongfully Convicted” and holding his two-year-old daughter, said he thought Scarcella should be in jail.

After the proceedings, Scarcella’s attorneys, Joel S. Cohen and Alan Abramson of Abramson & Morak released a statement commending Thompson’s conviction review effort and defending their client. They said it was “noteworthy” that when prosecutors consented to the vacatur, they did “solely” on due process grounds and “explicitly declined to consent on the grounds that Mr. Hamilton was actually innocent.”

Cohen and Abramson said Thompson was clear he found “no evidence” Scarcella “did anything inappropriate while assisting the assigned detective in this case.” They said no judge has issued any finding and no prosecutor has made any statement “to sustain the sensational claims that have appeared in the press that Detective Scarcella contributed to any person’s wrongful conviction.”

During Friday’s proceedings, Robert Grossman of Edelstein & Grossman and Ilya Novofastovsky of Novo Law Firm also appeared for Hamilton.

Assistant District Attorney Tamara Edelstein also appeared for the prosecution.

@|Andrew Keshner can be reached via email or on Twitter @AndrewKeshner. The Associated Press contributed to this story.

Read more: http://www.newyorklawjournal.com/id=1202714635750/Wrongfully-Imprisoned-Man-Cleared-of-Murder-Conviction#ixzz3OWJEOL5I

Economic Disparity leads to Disenfranchment

1-23-14 Poverty_Inequality Release   < (Click  to see the recently released figures).

 

We as a country are following a dangerous path. By disenfranchising  millions of our citizens, our democracy is in jeopardy. The economic disparity between the 2% of wealthy and the remainder of the country is higher now than it was during the Great Depression. I urge you to consider your financial situation, I’m certain that you are no better off than you were 20 years ago. Employers are paying less and the costs of living continue to rise.

It is time to begin the road to recovery. It will be a challenge with the new Republican Congress, but if we let them know that we are frustrated with the status quo. If they want to be reelected, they better fix it now. We as a nation will benefit, even the rich. We can’t spend money we don’t have.

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