Event Recap: Decriminalizing Race and Poverty: What’s Working and What You Can Do

Last Tuesday, I attended the informative and inspiring symposium Decriminalizing Race and Poverty: What’s Working and What You Can Do, presented by the Southern Center for Human Rights. When I try to write about this in calm, clear sentences, I find myself wanting to break out into excited works and exclamation points, because that is how I remember the event…and that’s what my notebook from that day looks like.

LIBERTY and LIFE! and some scribble

Thanks so much, Last Week Sarah, for this helpful note, with knitting pattern on the side.

Once I was at an Eleventh Circuit oral argument, and I had to sit still and look composed and professional. But I was so excited about what was happening, so I channeled that energy into my notebook. I took notes on the arguments, of course, but I also had all-caps, exclamation-point-enhanced declarations like, “FREEDOM!!!!!” “FIRST AMENDENT!!!!!” “YES! AMERICA! FIREWORKS AND EAGLES!!!!!!!!” I imagine something like that prompted me to write, “LIBERTY and LIFE!” in the middle of a notebook page. Another page has “CONSTITUTION” in huge letters and underlined, with no other context, other than the fact that constitutional rights was one of the themes of the day.

Luckily, people tweeted many of the noteworthy facts, statistics, and stories, and memorable messages from the day, with the hashtag #RacePovertyJustice. I tried to do this, but found I couldn’t keep up with everything being said quickly enough to tweet it, so I just took my handwritten scribbly notes. I did retweet a few things, and appreciated that others were documenting the event. It’s definitely worth checking out that hashtag to see what others recorded. I also found a good recap of the first panel discussion here. According to SCHR’s Facebook, video of the event will be online at some point, and when that happens, I’ll update this post with a link.

I walked out of the auditorium, after Stephen Bright‘s closing remarks, feeling full of energy and optimism. I had just spent the last several hours learning about some awful things happening in my country (and in particular, in my state), but I had also heard from and sat among a room full of people dedicated to changing that. Furthermore, in learning about these problems, I was getting an idea of why they happen and how I, as a lawyer and generally as a member of the community, can change things.

A few moments later, however, another attendee expressed different feelings. “Things are really terrible, aren’t they?” he said, and repeated a statistic cited in the first panel, “Law and Policy Solutions to End the Criminalization of Race and Poverty.” Dr. Ashley Nellis of The Sentencing Project had pointed out that, at the current rate, it would take eighty-eight years to get incarceration rates down to the same level as 1980. Referencing this, my conversation partner said that things seemed “hopeless.” It struck me immediately that his wasn’t an irrational response, even though it was so different from my own. I had skipped over despair and focused, at least emotionally, on the “What You Can Do” part of the symposium’s title.

I took about thirteen pages of notes (and not all were gibberish or all-caps constitutional rights buzzwords), noting issues, news stories, and cases I wanted to research and write about here. That would take months and several posts. For now, I just wanted to provide some links to content and short summaries of a few things that stood out to me from that day. I wanted to do this before September 30th so that you, readers, have a chance to participate in the conversation if you’d like. Today, September 30th, at 2PM EST, Southern Center for Human Rights and the panelists are participating in a Twitter chat. Log onto Twitter at that time and follow the hashtag #RacePovertyJustice to be part of the conversation (or just follow along.).

The symposium included coverage of problems with the criminal justice system resulting in increasing incarceration rates, particularly for nonviolent offenses—something that disproportionately affects people of color and poor people. This can begin with what is defined as a crime in the first place. (I’d love to do some future posts on quality of life crimes.) Some examples mentioned were being on the sidewalk with no “valid” reason or sleeping in public. Speakers described disparities in how defendants are charged; for example, the Honorable Bernice B. Donald of the Sixth Circuit Court of Appeals provided an account of a black defendant being charged with eight counts for illegally possessing eight weapons, and later, a white defendant being charged with one count for illegally possessing eight weapons. Sentencing disparities were discussed. Treatment of people in prison were discussed; Tamika Middleton mentioned another issue I’d like to write about on this blog someday, shackling pregnant prisoners.

The topic of criminalizing poverty is one I’d like to cover much more on this blog. The Supreme Court held in Bearden v. Georgia that it is unconstitutional to imprison people for being unable to pay fines; people can only be imprisoned for willfully refusing to pay. But what some are referring to as “modern day debtors’ prisons” exist. The SCHR has a summary here. In my Due Process seminar last semester, we read about such practices in Tennessee.  According to the allegations of this complaint, people who had committed minor offenses (like traffic offenses) and were unable to pay the fine were placed on supervised probation by private probation companies. The private probation companies charge a supervision fee. So people who were already unable to pay, it would seem, were being punished by being assessed more fees. The companies allegedly would not provide to people forms to fill out to demonstrate that they were indigent, and when people missed a payment—because they were unable to, not because they were willfully refusing to pay—they were arrested and imprisoned.

At the symposium, I learned about similar practices in Georgia. Atteeyah Hollie provided one account (and at the moment, I haven’t found a case or news story or anything to link to for more information, so if anyone reading this has one, please let me know!) of a man assigned to supervised probation, who in addition to paying off whatever the original fine was, had to pay a supervision fee of $44/month. He needed surgery, and contacted the private probation company to tell them that, because of his surgery, he was not going to have enough money to pay the $44 the next time it was due. A warrant for his arrest was issued. The police came to his house at four in the morning (!) to arrest him. He had children; here my notes just say “DFCS!” (This is why I wanted to find a news story; to confirm that the children went into foster care, in addition to their father going to jail, all over a fee that he was unable to pay. Not willfully refusing to pay.).

In his closing remarks, Stephen Bright mentioned a woman who was eight months pregnant, with a difficult pregnancy, sent to jail for being unable to pay fees. Google led me to news reports about Kiana Adams. This Daily Report article describes what happened to her; it seems she might have given birth in jail had SCHR not gotten involved. This news article states that had she given birth in jail, she likely would have been separated from her child—over traffic fines and probation supervision fees.

Private probation companies are not always involved. Sometimes a court itself will set up a system in which people go to jail for not paying a fine, even though the reason for not paying is that they are unable to do so. After hearing Walker v. City of Calhoun discussed at the conference, I will be following it. A clear summary of the facts are here; a man was cited for “pedestrian under the influence,” was unable to pay the fine, and jailed. Here is the District Court’s order granting the plaintiff’s preliminary injunction. My notes from the conference say, “District court found for plaintiff; city appealed. Appeal pending in 11th Circuit. Important case.” So I’ll be following that appeal, and providing updates here. I’d like to do a thorough analysis and presentation of facts and issues, too.

Finally, this is admittedly a non sequitur, but I wanted to provide a link to the transcript of keynote speaker, head of the Civil Rights Division of the Department of Justice, Vanita Gupta’s remarks. They are worth reading, all of them, but I’d like to provide an excerpt that struck me while I listened to her speech.

We see a clear link between the criminalization of race or poverty and the erosion of public trust.  Through our investigation of the Baltimore City Police Department, we saw how a “zero tolerance” street enforcement strategy became a quest to produce numbers – pedestrian stops in particular – regardless of their limited impact on solving crime and the damage they did to community relationships.  The city’s African-American residents bore the brunt of this activity.  The Baltimore Police Department made roughly 44 percent of its stops in two small, predominantly African-American districts that contain only 11 percent of the city’s population.  One African-American man was stopped 30 times in less than four years – with none of the stops resulting in a citation or criminal charge.  Officers routinely arrested people for loitering or trespassing if they could not provide a “valid reason” for being on the sidewalk or standing near a public housing development.  BPD [Baltimore Police Department] condoned and encouraged this behavior.  In one t, a shift commander emailed a template for describing such trespassing arrests; the template provided blank fields to be filled in with details, except that it had the words “black male” pre-filled for the suspect description.

If you’re interested in any of these topics, I encourage you to check out the Symposium Resources and the Twitter chat today at 2pm!

And thank you to the Southern Center for Human Rights for putting together such a great event!

 

 

 

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Posted in Criminal Law, Events, Personal/Professional Reflection

The Days Add Up and So Do the Questions

Labyrinth - how my mind feels

Labyrinth 28, etching, aquatint, soft-ground etching, mm.180×330, Engraved and designed by Toni Pecoraro 2007. From Wikimedia Commons. CC 3.0.

Eight Nine Ten days ago, I promised readers “a full update when I finish reading” the Sixth Circuit Court of Appeals’s dismissal of Tamesha Means’s case against the United States Conference of Catholic Bishops (USCCB) and three individuals, the Catholic Health Ministries (CHM) Defendants for short. But simply reading (and re-reading) the Sixth Circuit opinion didn’t prepare me to write a full update; it left me with more questions. Questions lead to more research; research yields conflicting facts and more questions. The days add up.

One question: Why have I chosen to write about this case or issue? In particular — why have I chosen to write about this case on constitutional law blog, when the two issues in the Sixth Circuit’s dismissal are personal jurisdiction and torts? Reasons include that 1) I see a connection to this case and rights to life, bodily integrity, speech, and religious freedom, even if there’s no state actor in this particular case to bring the Constitution into it; 2) when I think of possible solutions, such as legislation prohibiting refusing emergency treatment to women, I imagine a Constitutional, religious freedom and free speech challenge as a consequence; and 3) since 2012, I have been following cases of hospitals denying care to women based on the hospital’s religious affiliation, and I want this issue to get more attention. This is an issue I was hoping I’d leave law school knowing more about, but I have more questions now than ever before. I want these issues to get more coverage, and I want people with more knowledge than me to help me understand the legal and ethical issues more.

Reactions to the Sixth Circuit’s Ruling

Reactions to the opinion have varied. LifeNews.com described the ruling as “ACLU Loses Attempt to Force Catholic Hospital to Refer Patients for Abortions,” and Christian Daily described the dismissal as a declaration that “Catholic hospital cannot be forced to refer women for abortions.” In the ACLU’s comment on the ruling, Brigitte Amiri, senior staff attorney with the ACLU’s Reproductive Freedom Project,  stated, “the court’s decision today in no way sanctions turning away women based on a hospital’s religiously based policies.”

While I don’t read the ruling as a referendum on legal challenges to religious refusals to provide patients with appropriate care and information, I haven’t formed a solid opinion yet either. I see it as a ruling on procedural grounds with which I’m not sure if I agree or not. I had a great discussion about the case with a commenter on the previous post (which you read – and participate in! – here), but the reading I’d like to do would take more days…on top of the ten that have already elapsed…so for this weekend, here’s just a summary of what the Sixth Circuit said.

Summary of the Sixth Circuit’s Opinion

Summaries that have come out since the opinion was issued on September 8th say things like, the case was dismissed on jurisdictional grounds, and then include a block quote from a section of the opinion that had nothing to do with jurisdiction, and a quote from the district court opinion (not the same thing as the Sixth Circuit opinion!) about ecclesiastical abstention (which is an interesting topic for another post).

The two sources that summarize the opinion more precisely are this post from Religion Clause and the ACLU’s comment. These sources note that the case against one defendant was dismissed on jurisdictional grounds, and the case against the other defendants was dismissed based on Tamesha Means’s lack of “present physical injury” at the time she filed the case.

Personal Jurisdiction

A shoe, like International Shoe

A shoe, like International Shoe. One of Howard Finster’s sculptures at Paradise Garden. Photo by me. CC 2.0.

This is summed up accurately and concisely by the ACLU’s comment: “The court ruled that the United States Conference of Catholic Bishops could not be sued in Michigan.” I will attempt to provide some background in case you’re asking, “Why?”

The district court found, and the Sixth Circuit agreed, that a federal court in Michigan doesn’t have personal jurisdiction over USCCB, a nonprofit organization incorporated in D.C. I searched the Internet for a concise, clear breakdown of personal jurisdiction for the layperson, and found none. Even Wikipedia let me down with an entry full of jargon. So I turned to my 1L year Civil Procedure outline and wrote this very brief, extremely simplified summary.

Personal jurisdiction is the power a court needs for someone to sue you in that court. The idea is that it’s not fair for someone to be dragged into court and subject to the laws of a state to which they have no connection. Words you’ll see in discussions of personal jurisdiction include, “minimum contacts” with the “forum state” (the state where the court is), “purposeful availment” of that state and its laws, fairness, and reasonableness. This gets very complicated when a person or entity does something on the Internet, or when the facts that led the lawsuit are connected in some way to the actions of a corporate entity (including nonprofits like USCCB). There are a looooooooooot of cases about personal jurisdiction that involve corporations. The case International Shoe v. Washington is one, illustrating one way that an out-of-state corporation can have “minimum contacts” with the forum state such that it can be sued there.

You can read the Sixth Circuit’s full analysis of USCCB’s actions and how they were not sufficient to allow USCCB to be sued in Michigan, on pages 6–10 of the PDF version of the opinion.The USCCB promulgated the Ethical and Religious Directives for Catholic Health Care Services, with the intent that Catholic hospitals adopt them. The Sixth Circuit held that this wasn’t sufficient for them to be sued in a court in a state in which a hospital had adopted the Directives. Judge Batchelder described the connection as “attenuated,” writing:

USCCB’s action of publishing the Directives does not “create a substantial connection” between USCCB and Michigan. Michigan—like every state—does have Catholic hospitals, and USCCB does intend the Directives to be implemented by all Catholic healthcare institutions. USCCB may even have known that Trinity Health is a Catholic hospital network operating in Michigan. But this is not a “substantial connection” such that USCCB would reasonably expect to be haled into court in the state of Michigan.

In summary, even if the United States Conference of Catholic Bishops intended that the Directives be adopted in all fifty of the United States in their name, promulgating those Directives isn’t enough contact with a state to create personal jurisdiction.

Interestingly, the district court’s analysis of this question included a section about corporate entities and parents and subsidiaries. That analysis, dealing with for-profit corporations, felt somehow not completely analogous to relationships among values-based organizations. I’m no expert on this topic, and it makes me want to see what case law or scholarship on this topic exists.

Tort Claim: Ordinary Negligence

Torte

This is admittedly a torte, not a tort. Photo by Alfred Cheney Johnston via Wikimedia Commons. Public Domain.

The claim against the other defendants, three individuals abbreviated as the “CHM Defendants”, was dismissed not on jurisdictional grounds but because the court found that, even if all of the facts alleged were true, the law of ordinary negligence didn’t provide a path for her to seek relief from the CHM defendants. Ordinary negligence is another first-year law school topic – torts! To recover, a plaintiff has to show that the defendant 1) had a duty to the plaintiff (a thing they were supposed to do, or not do); 2) which the defendant breached (by doing what they weren’t supposed to do or not doing what they were supposed to do); 3) which caused 4) the plaintiff’s injury.

The Sixth Circuit classified the duty as “a duty under Michigan law on the part of a religious organization to a specific patient to adopt ethical directives that do not contradict the medical standard of care.” The court declined to say “[w]hether such a duty exists,” because if the CHM Defendants breached that duty by adopting the USCCB’s Ethical and Religious Directives, that didn’t necessarily cause Tamesha Means’s injuries. Most importantly, for purposes of dismissing the case, the Sixth Circuit went on to say that those injuries weren’t recognized by Michigan tort law, as they weren’t a “present physical injury.” A widely quoted passage from the opinion is:

 Means alleges—and we do not doubt—that she suffered physical and mental pain, emotional injuries, a riskier delivery, shock and emotional trauma from making funeral arrangements for her dead child, and other “discomforts and pain.” But these allegations are not sufficient to state an injury under Michigan negligence law.

But I’d like to focus on the interesting and slightly puzzling proximate cause discussion. The Sixth Circuit, on pages 11–12 of the PDF version of the opinion, looks to some of the Directives themselves. Directive 45 prohibits “the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus.” This is “never permitted.” But the Sixth Circuit points out that under Directive 47, “even if they will result in the death of the unborn child”, “[o]perations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman” which “cannot be safely postponed until the unborn child is viable” are okay. And Directive 27 requires that patients get information. I read this as the Sixth Circuit saying, “It sounds like maybe the Directives would cause a different outcome than the facts alleged, so they can’t be the legal ‘but for’ cause.”

This is where I get stuck asking questions. When does Directive 47 apply? Or Directive 27, for that matter? The facts alleged in the complaint aren’t the only report of similar occurrences; other reports exist.

As always, I’d love to hear what you think! Comment below, or if you would prefer, e-mail me directly.

Posted in Case Update, Religious Freedom, Reproductive Rights

Very Quick Case Mini-Update

Of the topics I have previously discussed, readers seemed most interested in (or shocked/angered by) the issue of hospitals apparently failing to provide women–particularly pregnant women–with adequate care or informed consent, based on the religious affiliation of the hospital. I wrote very briefly wrote about a particular instance of this here, a post in which I wrote a summary of Elizabeth Deutsch‘s excellent law review article Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act’s Nondiscrimination Mandate. What drew me to her article was that it was one of the few law review articles that I could find which references Tamesha Means’s case against the United States Conference of Catholic Bishops. I have been following the case, and hoping to write a detailed post (or series of posts) about it for this blog.

Today the Sixth Circuit issued its decision in Tamesha Means’s appeal of the district court’s dismissal of her case. The  Sixth Circuit affirmed that dismissal. I wanted to quickly share a link for anyone else who, like me, has been following this case. Here is a link to the PDF of the opinion, posted today by the Sixth Circuit Court of Appeals. I’ll write a full update when I finish reading the Sixth Circuit’s opinion.

For more background on the case, here’s the ACLU’s website for the case, which links to some of the legal documents. You can read the complaint here and the district court’s opinion here. At this time, I haven’t found public links to the United States Conference of Catholic Bishops’ answer or motions or briefs or any other legal documents filed on their behalf. If I find them, I’ll provide them, because I do not want to present only one-sided coverage of any topic.

In the meantime, readers, I would love to hear your thoughts, opinions, and questions!

Posted in Case Update, Links and Media, Religious Freedom, Reproductive Rights

Returning from Hiatus

IMG_20160604_150949533

Photo taken by the author at Howard Finster’s Paradise Garden in Summerville, Georgia. Plants grow over one of Howard Finster‘s sculptures.  CC 2.0.

 

Hi everyone! Well, the hiatus went much further than I said it would for reasons that are probably boring to discuss too much. For one thing, this blog initially started out as a class assignment, and we weren’t supposed to make any changes between the deadline and whenever our professors finished grading. Then the hiatus stretched longer as I became immersed in bar prep.

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Posted in Administrative, Personal/Professional Reflection

Final Exams Hiatus

 

Picture1

Artemisia, my other co-blogger, snuggling a Blue Book. Original photograph of author. CC 2.0.

Thank you for reading Tiers of Scrutiny! This blog will go on a temporary hiatus from the evening of April 4th through April 30th, so that its author can take her final exams.

Please continue to read, comment, e-mail, and follow me on Twitter, where I expect to keep tweeting cases and news stories that I want to research and write about later, think are interesting, or just think my readers might find interesting. I look forward to continuing the conversation!

Happy Spring!

Posted in Administrative

Reflection: The Value of Offensive Speech

image

Readers most responded to the case of the KKK’s fight to participate in Georgia’s Adopt-a-Highway program. Another reader suggested I write about a free speech controversy at my own university. My thoughts on both issues overlap.

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Posted in Free Speech, Personal/Professional Reflection

A Law Unto Themselves: Religious Rights of Organizations and Women’s Health

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Justice Scalia’s opinion in Employment Div. v. Smith, quoted above, was sometimes referenced favorably in the months leading up to the Supreme Court’s decision in Burwell v. Hobby Lobby upholding a challenge to the Affordable Care Act’s contraception mandate brought under the Religious Freedom Restoration Act (RFRA).

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Posted in Legal Analysis, Religious Freedom, Reproductive Rights

License (Plate) to Discriminate: Recent Developments in Government Speech

License Plate Preamble

Public Domain, via Wikimedia Commons. User Qqqqqq “created this image of a public display [of Preamble by Mike Wilkins] owned by the United States federal government and presented to the public at the Smithsonian Institution.”

I previously wrote an introduction to the government speech doctrine, the boundaries and reach of which have been redefined after the Supreme Court’s 2015 decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (If you’re unfamiliar with Walker, you might want to read that post or skim the case before continuing.) I noted concerns that Walker might provide government with a license to engage in viewpoint discrimination, a practice which, under other circumstances, is among the most offensive to free speech law.

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Posted in Free Speech, government-speech, Legal Analysis

Katz and Dogs: Fourth Amendment Detour to my Favorite Scalia Opinions

Advance Sentinel in a Helicopter

Original image by Jean-Marc Côté, Public Domain, via Wikimedia Commons and Public Domain Review. A pre-Katz perception of what twenty-first century surveillance could look like.

As soon as I learned that 2016’s cruel winter had taken from us not just David Bowie but also Justice Scalia, I wanted to write a tribute. Rainbow flag cake notwithstanding, the BFF of RBG wrote some of my all-time favorite opinions, protecting rights I hold dear and making me laugh. From this blog’s usual free speech and feminist fare, I detour to the Fourth Amendment.

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Posted in Fourth Amendment, Legal Analysis

Whose Speech Is It?: An Introduction to Government Speech

 

 
Should a state be required to display an Adopt-a-Highway sign for the KKK? In 2012, Georgia denied the KKK’s application to participate in the Adopt-a-Highway program, citing safety concerns—specifically, the 65 mph speed limit on the section of Highway 515 that the KKK wanted to adopt—and “significant public concern” caused by the organization’s “long-rooted history of civil disturbance.” Represented by the ACLU, the KKK filed a lawsuit, claiming that the state’s rejection of their Adopt-a-Highway application is a content-based restriction on the KKK’s freedom of speech—a right established by both the First Amendment to the U.S. Constitution and the Constitution of the State of Georgia.

 

But is it really their speech?

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Posted in Free Speech, government-speech, Legal Analysis
About This Blog
Constitutional law (mostly civil rights) for everyone! The author of this blog attempts to make legal issues, cases, and news stories with a consititutional connection accessible for any audience. The goal is to provide information, analysis, and an opportunity for conversation. Please feel free to ask questions or respond in the comments or via e-mail. Dialogue, disagreement, and most of all decorum are highly encouraged.
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Information on this blog is provided for educational purposes only and is not legal advice. Reading or interacting with this blog does not form an attorney-client relationship with the author. This blog should not be used as a substitute for competent legal advice from a licensed attorney.