From the Dispatch

“The Good Example”: The Story Behind Connecticut’s New “Ban the Box” Law

Tim Judson — Thu, 05 Aug 2010 16:32:03 -0400

Last week, GritTV broadcast an excellent feature on Connecticut’s enactment of a law (HB 1570) to protect the civil rights of ex-prisoners and reduce recidivism (repeat offenses). As we originally reported in April, the so-called “Ban the Box” law prohibits inquiries into the criminal backgrounds of people applying for jobs with the state until an applicant is determined qualified for the position – effectively banning the question about criminal background from job application forms. Although vetoed by the governor in May, legislators and advocates sustained enough votes to override on June 21. "Ban the Box" measures are crucial for enabling community reintegration, reducing crime, and controlling incarceration costs. GritTV’s piece shows the human side of the story behind the issue, with moving testimony by the legislators, advocates and ex-prisoners who fought for years to pass the law.

Supreme Court 2009-2010: Pro-Corporate, But Continued Trend Towards Deferral to State Authority

Nathan Newman — Tue, 29 Jun 2010 11:26:57 -0400

Yesterday, the Supreme Court ended its term with a bang with a ruling in McDonald v. City of Chicago that state gun control regulations can be struck down by federal courts based on the Second Amendment. While the number and scale of blockbuster decisions was not so high this session, the singular impact of the Citizens United case earlier in the term unleashing unregulated corporate money on elections, combined with the dangerous implications of the Rent-A-Center, West v. Jackson arbitration decision, emphasizes the pro-corporate bias the Supreme Court has increasingly exercised in recent years.

As detailed below, other decisions on public university governance of student groups, property rights challenges to beach restoration programs and regulation of ballot initiative processes, did continue the trend in recent terms of the Supreme Court deferring to state authority in major cases. And criminal justice cases continued to be a mixed bag of protecting individual rights versus upholding state discretion.

Table of Contents:
- Citizens United and the Supreme Court’s Pro-Corporate Bias
- Supreme Court’s Deferral to State Authority
- Criminal Justice
- Conclusion

Citizens United and the Supreme Court’s Pro-Corporate Bias

There is little question that Citizens United will be one of the major cases that defines this year’s term—and in many ways will frame the legacy of the rise of Chief Justice John Roberts and Justice Samuel Alito whose presence on the court has led to the dismemberment of campaign finance regulation.

"A Massive New Threat of Corruption and Corporate Control": With Citizens United, the Supreme court has given corporations the same free speech rights as individuals and allowed unlimited election spending by corporations when not coordinated with candidates.

U.S. Senator Sheldon Whitehouse of Rhode Island said recently,

The Citizens United decision -- yet another 5-4 decision [opens] our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

To emphasize its hostility to restrictions on the power of the wealthy over our elections, the Supreme Court ordered a freeze of Arizona's public financing matching funds system which gives candidates participating in public financing additional funds when opponents spend above benchmarked levels of spending. This means that publicly-financed candidates will be eligible to receive only one-third of the money to which they'd otherwise be entitled.

Letting Corporate Arbitrators Decide if Their Own Decisions are Unfair: In Rent-A-Center, West v. Jackson, the Supreme Court - by the same pro-corporate 5-4 vote lineup of Justices - further closed the courthouse door for individuals abused by their employers. The Court held that employees cannot only be forced to have complaints about racial discrimination or other employer abuses decided by private arbitrators (a reality decided in previous terms), but also that where an employee feels the terms of the arbitration agreement are unfair and unconscionable, it is up to the corporate-chosen arbitrator to decide if the arbitration agreement is unfair. In this case, for example, the arbitration agreement limited claims an employee might bring against the employer, while exempting those claims that Rent-a-Center might raise, and restricted an employee’s ability to gather evidence.

Instead of allowing a judge to decide whether the agreement to arbitrate could be enforced, the Supreme Court majority leaves it to the arbitrator chosen by the agreement alleged to be unfair to decide the issue, cutting off access to the courts even for the most basic threshold issue of whether these arbitrators and the rules imposed are a fair substitute for a day in court.

Privatizing Democracy: So just as corporations now have unlimited rein to use their money without regulation to dominate elections, those same corporations now have de facto have authority to run private courts to decide the legal rights of their own employees without little or no judicial restraint.

Supreme Court’s Deferral to State Authority

However, beyond these pro-corporate decisions, the Supreme Court, often with surprising configurations of majorities, continued its trend in recent years of deferral to state authority in more cases where core corporate interests are not at stake.

States and the Second Amendment: The exception to the trend this year was McDonald v. City of Chicago, which extended the Second Amendment to restrict state gun regulations. But even in that case, the majority went out of its way to affirm that many traditional gun control regulations will still be upheld even where an individual right to keep firearms for self-defense in the home is protected. Since most states have their own constitutional and statutory reasonableness test for gun regulations, the practical effects of McDonald may end up being relatively limited.

Rejecting “Takings” Doctrine: While right-wing constitutional lawyers for years hoped to create a majority to limit most local government land regulations as illegal “takings” under the Constitution, the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection not only rejected a property rights challenge to a state beach-erosion statute, but Justice Anthony Kennedy refused to even give a fifth vote to the proposition that a court ruling could ever constitute a “taking” of private property, a sign that most reasonable land use regulations will be protected from federal judicial second-guessing in the future.

Universities and Groups Excluding Gay Students: In Christian Legal Society v. Martinez, state universities retained their authority to deny funding to student groups that exclude certain students, such as gay and lesbian students, from membership. The Court upheld the University of California-Hastings' policy of requiring student groups to take on "all comers" as a prerequisite to official school recognition as a reasonable and viewpoint neutral restriction.

Public Disclosure of Ballot Initiative Signers: Given increasing use of fraud by those promoting right-wing ballot initiatives, progressives won an important victory in Doe v. Reed, in which the Court held that disclosure of signers of political ballot initiatives did not generally violate the First Amendment (although they might be able to in the future argue that specific harms could lead to some restriction on disclosure in a future case). In a strong argument for respecting state regulation of ballot initiatives, Justices Sotomayor, Stevens and Ginsburg wrote:

These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action. States enjoy “considerable leeway” to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access (e.g., the number of signatures required, the time for submission, and the method of verification).

Reviewing Public Employee Text Messages: In a slightly idiosyncratic case, the Court in City of Ontario v. Quon unanimously held that a police department’s decision to review the text messages of employees who exceeded the monthly limit on their office pagers in order to determine whether the monthly limit should be raised was reasonable under the Fourth Amendment.

Criminal Justice

Criminal justice decisions by the Supreme Court invariably combine a combination of invocation of individual rights, discussions of state authority and obscure procedural explorations. While cases this term had few singular disruptions of previous principles, they had a number of clear incremental changes effecting state criminal proceedings. (See this ACLU writeup for an extended list of additional cases).

State Convictions and Immigration: Of import for current debates on the role of states in immigration policy, the court ruled in two cases that courts had to carefully weigh how state criminal statutes interact with federal deportation rules:

In Padilla v. Kentucky, the Court held that attorneys have an obligation to carefully advise their clients of the immigration consequences of pleading guilty. In this case, the defendant– a lawful permanent resident for 40 years who pled guilty to drug trafficking – was incorrectly advised by his lawyer that he was unlikely to face deportation because of his long stay in the United States.
In Carchuri-Rosendo v. Holder, a unanimous Court ruled that defendant’s conviction for possession of a single Xanax tablet without prescription, following an earlier state court conviction for possession of less than two ounces of marijuana, could not qualify as an aggravated felony under federal immigration law, and thus did not render the petitioner ineligible for potential discretionary relief from deportation.

Restricting Miranda: The Court significantly limited restrictions the Miranda “right to remain silent” in a series of cases limiting the Miranda ruling:

In the most critical case, in Berghuis, Warden v . Thompkins, a 5-4 decision of the Supreme Court affirmed that a suspect did not properly invoke his right to remain silent, so statements were properly admitted in court. Justice Sotomayor, writing for four dissenters said, “the Court today creates an unworkable and conflicting set of presumptions that will undermine Miranda’s goal.”
In Florida v. Powell, the Court held that police warnings that a suspect had a right “to talk to a lawyer before answering any questions” adequately complied with Miranda, since the right does not require a particular set of words for police compliance.
In a 6-3 Graham v. Florida decision authored by Justice Kennedy, the Supreme Court found a Florida law unconstitutional under the Cruel and Unusual Punishments Clause where juvenile offenders could be sentenced to life in prison without parole for a non-murder.
In Maryland v. Shatzer, the Court held that police did not violate the law by collecting incriminating statements from a person who had invoked his Miranda rights two and a half years earlier, and that the right against interrogation lasts only 14 days after invocation.

In other key decisions effecting state proceedings:

In Bobby v. Van Hook, Wong v. Belmontes and Porter v. McCollum, the court created a series of new standards for when counsel is so ineffective as to warrant a new trial.
In Presley v. Georgia, the Court concluded that a defendant’s Sixth Amendment right to a public trial had been violated when the public was excluded from the jury voir dire proceedings.
In Holland v. Florida, a 7-2 decision authored by Justice Breyer, the Court agreed that an attorney could harm his client so badly that the defendant’s time to seek habeas must be extended.

Conclusion

Elana Kagan’s likely replacement of Justice Stevens on the Court is unlikely to change the broader trends on the Court and states will continue to face the challenge of reining in the corporate election spending unleashed by Citizens United and protecting access to justice in the courts eroded by the Rent-a-Center case. As People for the American Way wrote in a recent report, Rise of the Corporate Court: How the Supreme Court is Putting Businesses First, “the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations.”

While deferral to state authority has emerged as an increasing consensus among the Justices on a number of issues, lurking in the dissents of the most conservative Justices are even more extreme pro-corporate and right-wing views that with one more ally could push legal doctrine in ways that would completely erode democratic decision-making over economic and social policy. So even the more positive trends on the Court warrant only partial relief, since small changes in personnel in the future could readily enable the more activist impulses of the block of the four most right-wing members of the Court.

Resources:
Progressive States Network - The Supreme Court and the States 2008-2009: Trend Defending State Authority Emerges this Term
Scotusblog - Everything you read about the Supreme Court is wrong
ACLU - ACLU Summary of the 2009 Supreme Court Term
People for the American Way - Rise of the Corporate Court: How the Supreme Court is Putting Businesses First
Alliance for Justice - The Corporate Court

Protecting the Unemployed from Abusive Credit Inquiries

Caroline Fan — Thu, 13 Aug 2009 11:40:45 -0400

As the economic downturn progresses, American workers are facing a disturbing rise in employers using credit ratings to determine job worthiness. According to a 2006 survey by the Society for Human Resource Management, the number of firms using credit histories to screen applicants rose from 25% in 1998 to 43% despite such inquiries often being discriminatory and even illegal. Even if they disclose a credit search request, companies often bury it within lengthy applications so applicants might not even be aware that they are authorizing a credit check. This downwards spiral makes it increasingly hard for job seekers to become employed and pay off debt.

Increased State Regulation of Credit Inquiries: In some states lawmakers have stepped up to protect workers. Washington state's HB 1546 mandates that searches of a candidate's credit history must be directly pertinent to the job. This year Hawaii legislators enacted HB 31 over the Governor's veto to prevent employers from discriminating in hiring or firing based on an individual's credit history or credit report, unless the position is a managerial or supervisory position, or it directly relates to an occupational requirement or the employer is an FDIC-insured financial institution. Moreover, a credit inquiry may only be made after a conditional job offer. Last year, California Governor Schwarzenegger vetoed a similar law (AB 2918), although it has been reintroduced for this session.

In 2009, chambers in Indiana (H 1250) and Ohio (SB 91) considered broad anti-discrimination in the workplace bills that would have prohibited credit inquiries, while the Connecticut House passed HB 5521 which would have put the burden on the employer to prove the necessity of a credit check for hiring. New York and Missouri both sought to limit the use of credit scores in job decisions. Texas tried to pass a version that simply pertained to state employees. Legislators in Michigan (HB 4578) have also introduced bills prohibiting companies from using credit history in making employment decisions.

“In my opinion, it’s discrimination,” said Representative Jon Switalski, the Democrat who proposed legislation in Michigan. “If you miss a few payments or you have medical debt, your skills as a pipe fitter or an electrician don’t diminish.”

Employers Violating the Law: Highlighting the relevance of these state laws, employee credit checks could violate federal law, as EEOC commissioners have testified, yet enforcement has been weak at the federal level. The Fair Credit Reporting Act (FRCA) requires an employee or applicant's written permission any time an employer hires a third party to conduct a background check. If an employer uses credit information to deny an applicant a job, fire a current employee, rescind a job offer or cancel a promotion, the FCRA requires the employer to provide the worker with a copy of their report and if the report influenced a hiring decision.

Unfortunately, too many companies do not comply with the law and simply provide an alternate excuse. Additionally, because credit histories tend to be fraught with discriminatory and inaccurate information to begin with, applicants from communities of color or low-income communities are at a disadvantage. According to a report by the National Consumer Law Center, even the Consumer Data Industry Association, the trade association of credit bureaus, testified that 22% of the 57.4 million consumers who ordered their own credit reports filed a dispute. And in the amount of time it takes to contest a report's accuracy and repair a credit rating, companies may have already hired others. Recently, Congress introduced US HR 3149 to prohibit the use of consumer credit checks by employers as part of the hiring or firing process, unless the job is at a financial services institution or involves national security or FDIC clearance. The bill is supported by labor unions, civil rights groups, fair housing advocates, and advocacy organizations for consumers, students, and women.

Historically, states have been at the forefront of tightening regulations and enforcement of fair credit reporting, but amendments made in 2003 removed certain preemption provisions. Ultimately, workers facing spiraling bill payments and one of the worst job markets in recent history should not be doubly burdened by invasive and discriminatory credit checks.

Resources:
Federal Trade Commission - The Fair Credit Reporting Act
Electronic Privacy Information Center -The Fair Credit Reporting Act (FCRA) and the Privacy of Your Credit Report
USA Today - 5 states challenge employer credit checks

The Supreme Court and the States 2008-2009: Trend Defending State Authority Emerges this Term

Nathan Newman — Tue, 14 Jul 2009 11:41:02 -0400

Whether out of circumstance or an emerging trend, where state authority was at issue, this term the U.S. Supreme Court overwhelmingly deferred to state decisionmakers-- a significant reveral from last year. There were major exceptions -- the Ricci decision preempting the affirmative action decision by the City of New Haven being the most prominent -- but the results in favor of state authority overall were relatively broadbased. In the context of President Obama's recent endorsement of less preemption of state laws by federal regulators, we may be seeing a more general reversal of trends that had increasingly undermined state authority. Still, any trend on this Court is provisional since it continued its politicization and divisions, ruling on 79 cases where 23 of which, according to SCOTUSblog, were split 5-4.

Overall Resources:
Scotusblog.com - Statpack
ScotusWiki - Case Index OT08

Table of Contents:

- Upholding State Regulation of the Economy

- Civil Rights and the States

- Criminal Justice Decisions Mixed for Local Authority

- Conclusion

Upholding State Regulation of the Economy

In major decisions, the Supreme Court made dramatic decisions affirming state authority to rein in corporate malfeasance even where federal regulations had been enacted in the same policy area.

Expanding State Regulation of Banks: A blockbuster decision was Cuomo v. The Clearing House Ass’n, L.L.C. which ruled that federal banking regulations did not preempt states from enforcing their own fair-lending laws. The ability of New York's attorney general to bring enforcement actions over banks' residential real-estate lending practices was upheld, a reversal of past court trends that had favored federal regulations at the expense of state regulations.

The decision in many ways come five years too late, since as we wrote back in 2007, Bush administration rules and lower court decisions blocking state fair lending rules allowed the subprime debacle to explode. But as new federal laws are being written to regulate the financial industry, the decision will help reinforce proposals to explicitly make federally chartered institutions subject to state consumer and civil rights laws and allow states to enforce some federal consumer protection laws.

Upholding State Regulations Against Deceptive Marketing Practices: A major goal of the corporate legal right wing has been to gut state tort laws in the name of federal preemption-- and the Supreme Court dealt that a double loss this term in the Wyeth and Altria decisions.

In Wyeth v. Levine, the Court held 6-3 that federal drug labelling rules did not preempt state tort laws holding companies responsible for inadequate warnings over the dangers or procedures for safely using prescription drugs. Justice Thomas, notably, took the broadest position that he would no longer support claims against state laws based on "implied" preemption, instead arguing the burden should be on Congress to make clear its intent to preempt state law.
Similarly, in Altria Group v. Good, the Court held that state laws challenging the marketing of "light" cigarettes were not preempted by either the Federal Cigarette Labeling and Advertising Act or the regulatory actions of the Federal Trade Commission.

In two key labor decisions-- one which was against the interests of unions and one in support of them -- the common denominator was that state governments were given greater discretion over union fees paid by employees:

In Locke v. Karass, the Court ruled that states may enter into collective bargaining agreements that require public employees to pay agency fees that finance litigation by a parent union, as long as such litigation is related to collective bargaining rather than political issues.
In Ysura v. Pocatello Education Association, the Court found states also have the discretion to ban payroll deductions for labor union political activities, even when the state ban applies to the deductions from the paychecks of local government workers.

Protecting Integrity of Jury Decisions: As we highlighted a few weeks ago, the Caperton v Massey decision protected state jury decisions regulating the behavior of businesses from local judges corrupted by corporate campaign contributions. In that case, a $50 million jury award against a West Virginia coal company was overturned by the state's Supreme Court, the deciding vote by a judge whose campaign had received $3 million by the coal company. The U.S. Supreme Court in turn ruled that the judge should have recused himself due to such clear conflict of interest.

Resources
Progressive States Network - States' Victory Against Preemption: FDA Approval Does not Block State Tort Claims Against Drug Makers
Progressive States Network - Judge Ruling in Favor of Big Contributor Ruled Illegal by U.S. Supreme Court
Constitutional Accountability Center - Supreme Court Decides Wyeth: A Victory for Diana Levine and the Constitution
Jurist - National Bank Act does not prevent state enforcement: Supreme Court

Civil Rights and the States

Where it came to the issue of race and civil rights, on the other hand, the conservative majority that controlled most decisions tended to uphold state or federal authority based on which was more hostile to rectifying racial inequality.

Judicial Activism Against Local Decisions in Ricci: It is ironic that the most famous case of the session, Ricci v. DeStefano was also the most dramatic example of the conservative majority on the Court disregarding local government authority. In this case, a local decision that a test for the promotion of firefighters was racially biased -- and thus should not be used -- was deemed illegal reverse discrimination under federal civil rights laws. Even more problematically, the Court majority indicated an inclination to void a much wider range of employer actions seeking integrated workplaces as illegal under the 14th Amendment. "The Supreme Court's interpretation imposes new burdens on employers and makes it more difficult to maintain a discrimination-free workplace," said John Payton, president and director-counsel of the NAACP Legal Defense Fund.

Weakening the Federal Voting Rights Act: Conversely, as we detailed in March, the Court in its 5-4 Bartlett decision narrowed the scope of the Voting Rights Act by ruling that when minority voters make up less than 50 percent of the voting age population, states can ignore provisions of the law meant to keep minority votes from being diluted during redistricting.

And in Northwest Austin Municipal District No. 1 v. Holder, the Court created new exceptions to the Voting Rights Act that allow local government jurisdictions to "bail out" of a provision in the Voting Rights Act that requires federal pre-clearance for changes in election procedures in a number of states. Even more worrisome for civil rights, conservatives on the court indicated a willingness in the future to strike down larger swathes of the federal Voting Rights Act.

Language Access in Schools: In Horne v. Flores, the Court expanded states' ability to escape federal laws requiring them to take “appropriate action” to help English language learners overcome language obstacles. Back in 2000, a a federal district judge found that Arizona's minimal spending on instruction for English language learners violated the federal Equal Educational Opportunity Act. In a decision written by Justice Samuel A. Alito Jr., the Court majority limited lower court decisions requiring more spending to assure equality for non-native speakers in schools.

Rights of Special Needs Students: On the other hand, in its Forest Grove School District v. T.A decision, school districts are now required under the Individuals with Disabilities Education Act to reimburse parents for the hefty costs of sending a child with special needs to private schools for services that were unavailable in public school, even where the child had never even attended public school.

Access to Public Space by Religious Minorities Limited: In Pleasant Grove City v. Summun, the Court ruled that a municipality was not required to allow other religious groups to erect their own religious monuments just because a Ten Commandments monument existed in a park. However, after the Supreme Court decision came down, the municipality made further litigation moot by moving the Ten Commandments monument out of the park.

Resources:
Alliance for Justice - Alliance for Justice Supreme Court Review: Analysis of the 2008-2009 Term
Civilrights.org - Civil Rights in the Supreme Court: Wrapping up the 2008-2009 Term
Think Progress - The Supreme Court Term In Review, Part III: Anti-Discrimination
Progressive States Network - Supreme Court Limits Redistricting Provision of Voting Rights Act

Criminal Justice Decisions Mixed for Local Authority

As is usual, the criminal justice docket was a mixed bag, weakening individual rights for defendants in some cases, while giving law enforcement a more free hand in others.

Cases Strengthening Police Powers: In one of its highest profile criminal justice cases of the term, the Court overruled a longstanding precedent to make it easier for police to obtain a waiver of counsel from suspects in Montejo v. Louisiana. The Court held that the right to counsel could be waived “so long as relinquishment of the right is voluntary, knowing and intelligent,” which could be established by the state’s rote recitation of the defendant’s Miranda rights, and the defendant’s un-counseled and voluntary waiver of those rights. Other cases strengthened police and prosecutor powers included:

In Herring the Court weakened protections against illegal searches and seizures by holding that it was not necessary to exclude evidence that had been obtained pursuant to a warrant based on erroneous evidence that was negligently supplied by a police clerk. The opinion suggests a broader trend toward allowing the use of evidence obtained through police negligence.
In its Osborne decision, the court rejected a claim that those convicted of crimes had a due process right to DNA testing to prove their innocence. Although Alaska is one of the few states that has no DNA testing law, the court reasoned that since 46 states already have such a law, it should not ''short-circuit'' the legislative process by mandating it for all jurisdictions.
In Van de Kamp v. Goldstein, the Court strengthened the immunity from prosecution that prosecutors enjoy.
Arizona v. Johnson expanded the stop and frisk powers of police.
Oregon v. Ice strengthened judicial power to impose consecutive sentences based on facts that were not found by the jury, but only by the judge.

Cases Favoring Defendants Against Police and Prosecutors: On the other hand, defendants won a number of victories against state police powers. These included:

In Melendez-Diaz, the Court ruled that a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence, meaning that defendant has the right under the Confrontation Clause to require forensics staff to testify and be cross-examined at all trials.
Arizona v. Gant restricted the power of the police to search a vehicle seized in the course of an arrest.
And in Safford Unified School District #1 v. Redding, the Court held that school authorities violated the Fourth Amendment right by applying a strip search to a 13-year old girl who was suspected of having ibuprofen.

Resources:
Think Progress - The Supreme Court Term In Review, Part II: Criminal Justice

Conclusion

Future terms will show how durable this term's trend of the Court deferring to state authority will be, but the fact that conservative Justices Thomas and Scalia each joined one or more of the decisions giving states greater authority to regulate corporations means there may be a longer-lasting judicial coalition emerging to defend state authority adding an extra set of regulatory eyes on corporate malfeasance. No doubt, the spectacular federal regulatory breakdown around the financial crisis has dimmed the corporate argument that a single federal regulatory scheme is sufficient to protect consumers. On the other hand, the Ricci decision shows the conservative majority's ongoing commitment to using federal power to overturn local affirmative action actions is unabated even as those same conservative Justices seem determined to weaken federal commitments to racial equality.

State Pension Funds Can Help Protect Online Privacy and Freedom of Speech

PSN — Thu, 29 Jan 2009 12:55:02 -0500

New York City pension funds have joined forces with a coalition of investors, organized by Open Media and Information Companies Initiative, to file shareholder resolutions with 10 publicly-held US Internet services providers (ISPs). The resolutions urge "corporate boards to report on the impact of the companies' Internet network management practices on public expectations of freedom of expression and privacy."

ISPs, including major telephone and cable companies, provide Internet to a majority of the US population. The resolutions highlight that these providers have the ability to manage traffic and play a central role in crafting policies that greatly impact the public's Internet use.

"With greater numbers of people using the Internet for everything from shopping to health care, Internet network management and its effect on the user have become significant public policy concerns," said New York City Comptroller William C. Thompson Jr., when announcing the filing of the New York City Pension Funds resolutions. In order to get the resolutions passed, the Coalition will be seeking support from other shareholders; state pension funds, which hold a large amount of assets in many of these companies, could play a key role in the campaign. State leaders can take action to review whether their pension funds are supporting these resolutions through their proxies.

New Jersey Looks to Abolish Death Penalty

J. Mijin Cha — Thu, 13 Dec 2007 07:00:00 -0500

This week, the New Jersey Senate voted to abolish the death penalty in the state, moving closer to becoming the first state to do so since the U.S. Supreme Court reinstated it in 1976. The bill now moves to the Assembly, where it is expected to pass, and Governor Corzine, a staunch opponent of the death penalty, has said he would sign the measure into law.

New Jersey is not the first state to recently move towards repealing the death penalty. Last year alone legislatures in Maryland, Montana, Nebraska and New Mexico have debated bills to repeal death penalty statutes, but each measure failed. In 2004, the New York Supreme Court struck down the state's death penalty as unconstitutional and the Kansas Supreme Court voided its death penalty laws. In 2000, Illinois' then Republican Governor George Ryan imposed a moratorium on the state's death penalty, which continues today. Maryland's Governor also imposed a moratorium on executions in 2002, but just days after his inauguration, Governor Erlich lifted the moratorium in 2003 and Maryland executed its first individual after six years in 2004.

Death penalty cases are far more expensive than sentencing people to life without parole. A recent report found that New Jersey spends about $253 million on its death penalty while not executing a single individual since 1976, when the death penalty was reinstated. New York has spent more than $200 million on its death penalty system, also without any executions. Florida would save $51 million per year by punishing all first-degree murderers with life in prison without parole.

Not to mention that to date, according to the Innocence Project, several people on death row have been exonerated by post-conviction DNA evidence. And, a recent report analyzing polling results, found that the public is losing confidence in the death penalty due to the risk of executing the innocent, the fairness of the process, and the inability of capital punishment to act as a deterrent. In New Jersey, by a margin of 52 to 39%, voters say they would prefer to drop the death penalty in favor of life in prison without parole for those who are convicted of first degree murder.
The U.S. bears the dubious distinction of being the only developed country that still kills people for committing crimes. Maybe it's time we gave up that title.

More Resources

Criminal Justice Reform at the State Level

J. Mijin Cha — Mon, 17 Sep 2007 08:44:00 -0400

Maryland, North Carolina , West Virginia, and Vermont all passed legislation this year reforming the eyewitness identification process. Additionally, last year thirteen states passed some form of eyewitness identification reform legislation. In fact, in just two years, 32 bills on eyewitness identification reform were introduced in 17 states, according to the National Association of Criminal Defense Lawyer's state legislation tracking analysis.

The sheer number of bills introduced indicates that there are some problems that need to be fixed in our criminal justice system. Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the wrongful convictions that have been overturned through DNA testing. A comprehensive study of capital trials conducted from 1973 to 1995 showed that nearly 70% of death sentences handed down by state courts were overturned due to procedural errors and misconduct.

Common Causes of Wrongful Conviction: According to the Innocence Project, a project housed at the Cardozo School of Law dedicated to exonerating wrongfully convicted individuals, some of the most common causes of wrongful convictions include:

Eyewitness misidentification
False confessions
Forensic science error
Misuse of informants or snitches.

As this Dispatch will detail, this past session there was significant advancement in correcting some of the most common causes of wrongful conviction, helping to reform our damaged criminal justice procedural system.

More Resources

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Eyewitness Misidentification Reform

Eyewitness testimony can be some of the most compelling evidence in criminal cases. It can also be some of the most unreliable. Studies have documented the unreliability of eyewitness identification due to factors as basic as the fallibility of human memory.

The U.S. Department of Justice released a guide for eyewitness evidence procedures that makes use of social science findings on eyewitness evidence and combines research and practical perspectives. Several states have adopted these provisions, including Maryland, which adopted HB 103 requiring police departments to adopt written policies regarding eyewitness identification procedures that conform to the Department of Justice guidelines, and West Virginia's new law also requiring conforming to the DOJ guidelines.

California's SB 756 created a task force that includes the Attorney General to develop "best practices" guidelines for eyewitness identifications. The guidelines will then be transmitted to the legislature with recommendations for any legislation needed to enforce the guidelines. The bill has passed both chambers and is waiting for approval by the governor.

North Carolina's eyewitness reform bill requires police officers to show photos of suspects one at a time, instead of all at once, and requires a "double-blind" where the officer does not know which photos are of a suspect.

More Resources

Preventing False Confessions

A few years ago, an extensive study of false confession cases was undertaken to see how the cases were treated by the criminal justice system. The study analyzed 125 proven interrogation-induced false confessions, that is cases where individuals that are indisputably innocent confessed to crimes they did not commit. While it may seem unbelievable that someone would confess to a crime they did not commit, the study points out that the vast majority of the American people are unaware of the psychologically manipulative methods of police interrogators and the subsequent effect they can have on individuals. Evidence shows that false confessions do in fact occur for a number of reasons, including psychological manipulation, torture, threats, and false promises, i.e. promising to release an individual if they agree to confess.

The study concludes that a procedure as simple as requiring the taping of interrogations could greatly reduce the number of false confessions. California just passed SB 511 requiring the electronic recording of custodial interrogations for violent felony suspects. North Carolina's HB 1626 requires law enforcement agencies to record all homicide interrogations, either by audio or video devices. The bill was unopposed by both the N.C. Conference of District Attorneys and the N.C. Sheriff's Association.

More Resources

Stopping Forensic Science Error

While television often treats scientific evidence of a crime as definitive, the reality is less compelling. In 2002, DNA testing was suspended in the Houston Police Department crime lab after a report revealed widespread problems with testing, evidence storage and management. A subsequent independent investigation of the lab was recently concluded and found that the crime lab's DNA section lacked competent supervision and technical guidance and employed analysts that were not aware of how far their analytical procedures and reporting conventions departed from accepted forensic science principles. The risk that casework performed by the crime lab, particularly by the DNA section, would lead to a miscarriage of justice was unacceptably high.

Moreover, the majority of defendants convicted with faulty evidence from the Houston crime lab have received little help in determining how, or if, their convictions could be affected: attorneys in 24 out of 61 cases have taken little meaningful action with new test results and in 15 other cases, defendants have received no representation at all.

In Colorado, Gov. Ritter created an evidence preservation task force to analyze practices used across the country and to see if any should be implemented in Colorado. The Task Force comes on the heels of a series of articles in The Denver Post that found poor standards nationwide being used to oversee the preservation of biological evidence, including tens of thousands of DNA specimens being lost, mishandled or destroyed.

Maryland passed a groundbreaking crime lab oversight bill that directs the state health department to create Maryland's first regulations for licensing state, county and municipal crime labs. Under the measure, the secretary of the Maryland Department of Health and Mental Hygiene would be able to suspend or revoke licenses. While Texas, Virginia, and Minnesota have formed oversight panels in recent years to address crime lab misconduct, Maryland's bill is the first to put regulating the labs in the hands of a department with experience in scientifically based oversight of medical work.

North Carolina passed HB 1500 requiring the preservation of evidentiary material that could contain DNA, access to DNA testing of evidence when the current testing procedures are more accurate than past testing procedures for defendants, and a right of appeal for a defendant that has been denied a motion to conduct DNA testing. The bill was one of three criminal procedure reform bills that were passed this year, all of which were sponsored by Rep. Rick Glazier.

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Reforming Use of Informants or Snitches

In U.S. capital cases, witnesses with an incentive to lie â€”otherwise known as snitchesâ€” are the leading cause of wrongful convictions. They account for over 45% of death row exonerations. For the most part, snitches are jailhouse informants promised leniency in their own cases or individuals with incentives to cast suspicion away from themselves, a recipe for unreliable or false testimony. In fact, such testimony is widely regarded as the least reliable.

To address this concern, California just passed SB 609, which requires corroboration of testimony from jailhouse informants before the testimony can be admitted. The law follows recommendations from a blue ribbon commission that examined the problems of wrongful convictions in California. The California Commission on the Fair Administration of Justice studied and reviewed the administration of criminal justice in California to determine the extent to which the process has failed in the past and to offer recommendations for improving the system. The study determined that informant testimony was used frequently in capital cases and therefore the process should be reformed to ensure confidence in the reliability of the testimony of informants. The bill is now on the governor's desk.

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Conclusion

When looking at criminal justice reform initiatives states should take a comprehensive approach to the problem. In an effort to overhaul their criminal justice procedures, Vermont passed a bill this past session that addresses several of the issues raised in this Dispatch, including:

Access to post-conviction DNA testing for persons convicted of certain serious felonies indefinitely
Compensation for wrongful convictions
Creation of a preservation of evidence study committee
Creation of an eyewitness identification and custodial interrogations recording study committee

By addressing several components that lead to wrongful convictions, the Vermont bill addresses the different ways in which the criminal justice system is damaged in an integrated way. Each problem may be distinct but they all lead to innocent people being convicted for crimes they did not commit.

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IN: Prison Riots and Privatization

Nathan Newman — Thu, 03 May 2007 08:54:02 -0400

Take 1200 prisoners from Arizona, hire Indiana at $64 per day to house them, then ship them 1500 miles from home and loved ones to a private prison in New Castle, Indiana run by the GEO Group, a private prison company that has been repeatedly cited for substandard conditions. When a riot among 500 prisoners broke out last week, with prisoners taking over the facility for two hours, it was hardly surprising to observers.

As the Fort Wayne Journal Gazette noted in an editorial:

The director of the Arizona Department of Corrections had visited New Castle a week before the riot and â€“ based on what she found there â€“ halted the planned transfer of 630 more inmates. A spokeswoman for the Arizona department said there were not enough guards on duty and they did not have enough experience...Some former prison employees have charged that GEO Group has cut staffing, and there are reports that privatization of the food services prompted complaints from inmates.

Profits for private prisons comes, as the Journal-Gazette emphasizes, from "cost savings and low-wage jobs that come at the expense of public safety."

Adding to these concerns is the fact that prison privatization in Indiana, as in too many states, followed a massive infusion of $226,000 in campaign contributions by prison interests to state-level candidates between 2001 and 2004, including $52,900 to incumbent governor Mitch Daniels.

This is all part of a broader trend, as Business Week details this week, of cash-strapped states increasingly turning to privatization of public assets like highways, airports and bridges -- a dangerous recipe for undermining public safety and ripping off the taxpayer, as we explained earlier this year.

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Reforming Three Strikes

Nathan Newman — Thu, 02 Mar 2006 11:26:00 -0500

Twelve years ago, California led the country in passage of a three strikes law that threatened to lock up repeated offenders and throw away the key. Now, having seen the cost to the state and realizing that 60% of three strike offenders are non-violent, a realization is growing that a different route may be more effective.

Don't take our word for it, listen to some of the prosecutors in California who enforce the law, who are leading a drive to target only serious violent criminals with three strikes penalties:

"Two ballot initiatives - both led by Los Angeles area prosecutors - are aiming to put more flexibility in the three-strikes law, in a bid to address concerns that it is imprisoning too many nonviolent criminals at too great a cost to taxpayers. The measures would come before California voters in November if they qualify for the ballot.

"The public has expressed legitimate concerns about [the law's] use against those who commit new, nonviolent, not serious offenses," says Steve Cooley, L.A. County district attorney and coauthor of one of the initiatives, the Three Strikes Reform Act of 2006."

Mr. Cooley notes that 60 percent of the state's 7,700 "third strike" inmates are in prison for a nonviolent or nonserious third strike.

The cost of three strikes has been both human -- in prolonging imprisonment instead of looking to rehabilitation and drug treatment for non-violent criminals -- and financial. At $31,000 annually per prisoner, those are funds that could be used far more effectively in preventing violent crime and investing in programs for youth to prevent crime in the first place.

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