Skip to content

Oct 1

Ten thousand lakes, under god…

Posted 5 days ago by Hudson Kingston

Al Capone famously was successfully prosecuted for tax evasion. This fact reminds us of three distinct truisms: 1. Tax evasion is a crime, and Capone went to prison to  eventually die there for his misdeeds; 2. Tax evasion, rather than being something one can harmlessly accuse a presidential candidate of, is likely to be a screen for worse crimes – in Capone’s case he was undoubtedly made his money flouting prohibition, not to mention gangland murder; 3. Since Capone’s conviction the government has gotten “tough on crime” and that means Congress enacted more laws like the Racketeer Influenced and Corrupt Organizations Act, which should do something to fill the loopholes in our prosecution of dastardly criminals.

Now let’s talk about tax evasion in the present day for a minute. It seems fairly clear that if your organization operates tax-free due to the Constitutional separation of church and state it would behoove you to not operate as a political bully pulpit. Not that clear, however. Over a thousand pastors plan to violate tax law this week, in an organized effort to boost one presidential candidate’s chances with conservative churchgoers. The IRS holds no awful mystery to these pastors, as they each plan on sending a video of their sermons to the agency in order to make a point. That point is, presumably, “I would like to pay taxes as a political organization, ASAP.” Though to read their argument it seems to be grounded in the First Amendment, just not the part before the first semicolon.

To the extent that the IRS ignores this willful violation of the law, which costs the nation a huge bounty of taxes in a year when governments are considering the unthinkable to raise revenue, it is probably not a going to affect the country other than decreasing revenue. Does anyone believe that the potential voters in these thousand-plus churches were going to vote otherwise? Maybe so, but they probably do not all reside in swing states. The IRS may get a pass here for turning the other cheek.

However, in the state of Minnesota things have gone a bit beyond one act of civil disobedience. Reportedly, the Catholic Church has raised significant funds in order to mail out letters advising Catholics to: 1. Vote for a constitutional amendment that would outlaw gay marriage (which doesn’t yet exist in Minnesota, but has spread to the known liberal stronghold of Iowa); 2. Send money to endorse the amendment. This is troubling. As we all know, money spent is “political speech,” and not only is the church spending to influence individual faithful voters, it is urging them to making more political speech by spending on an advertizing blitz to withhold rights from Minnesotans. A willful violation of constitutionally-derived tax code is being exploited to fund a PAC-like attack on a state’s fundamental document.

Moreover, and this gets us back to the points in the first paragraph. One definition of a racket (in the context of racketeering) is “a business (or syndicate) that . . . is engaged in the sale of a solution to a problem that the institution itself creates or perpetuates, with the specific intent to engender continual patronage.” In the context of an organization that is illegally using First Amendment tax protections to gather the financial wherewithal to affect a fundamental constitutional right in a referendum that is polling near 50-43… well, if the IRS doesn’t do something maybe the DOJ should explore its options under these new-fangled laws from the 1970s. Tax evasion is not the half of it.

Oct 1

“One person, one vote” and the indispensable role of the Court

Posted 5 days ago by Anthony Kammer

In a little-noticed ruling last week, Tennant v. Jefferson County Commission, the Supreme Court announced what might end up being a major turning point in its “one person, one vote” jurisprudence. The Court’s ruling, unsigned and unanimous, indicated that the Court would no longer demand precise numerical equality between legislative districts and would give greater deference to the redistricting plans drawn by state legislatures.

The West Virginia’s congressional redistricting plan at issue in the case had only a 0.79% difference between its largest and smallest districts. Courts, however, have required “a good faith effort to achieve absolute equality” in congressional districts since Karcher v. Daggert (1983), which placed the burden on the state to justify any avoidable deviations from numerical equality. As courts have been doing for some time, a three-judge panel of the West Virginia District Court panel applied the test from Karcher as requiring “zero variance” between districts. Given the 0.79% difference, the lower court rejected the state’s proposed maps. Read more

Sep 30

To Protect Free Expression Online

Posted 5 days ago by Jonathan Peters

Follow me @jonathanwpeters on Twitter.

A single, open, global Internet is a vital tool for facilitating the free and secure flow of information and products without regard to distances or national boundaries. The goal of [such an] Internet is best supported by policies that (A) encourage utilization on a global basis of technology standards set by international … organizations … (B) respect the security of information and privacy of Internet users … (C) promote investment in Internet-related innovation … (D) refrain from compelling … intermediaries to restrict the free flow of information on the Internet … and (E) allow trade in Internet-related goods, services, information, and content.

That’s an excerpt of the findings section of the Global Free Internet Act of 2012, introduced Friday by Rep. Zoe Lofgren, a California Democrat who represents much of Silicon Valley. It reads like a hybrid of Jack Balkin and Rebecca MacKinnon, who have written prolifically about the keys to securing a vibrant system of free expression on the Internet. Read more

Sep 29

Confidence and the Justice System and Outcomes for Discrimination Plaintiffs

Posted 7 days ago by Anne King

DRI – The Voice of the Defense Bar recently released survey results indicating that many Americans have little confidence in the fairness of the civil justice system.

A few interesting highlights: “41% of Americans are not confident that the civil law system is fair and just. Only 9% are very confident.” “Confidence in the courts is higher among liberals than conservatives.” “83% say that the side with the most money for lawyers usually wins,” a result that remains consistent across all political parties and identifications. Despite this perception, “[i]n a suit pitting a corporation against an individual, 54% would favor individuals.”

I encountered the DRI survey results (via the Blog of Legal Times) not long after reading Katie Eyer’s That’s Not Discrimination: American Beliefs and the Limits of Anti- Discrimination Law, recently published in the Minnesota Law Review. Eyer collects and summarizes a number of empirical studies finding that discrimination plaintiffs, especially employment discrimination plaintiffs, face extremely challenging odds in litigation. Specifically, “less than 5% of all discrimination plaintiffs will ever achieve any form of litigated relief.” Dismissal on a motions to dismiss or summary judgment “account[] for a full 86% of litigated outcomes.”  Eyer draws on psychological research to offer an explanation for discrimination plaintiffs’ low success rates.

Eyer’s article makes for an interesting juxtaposition with the DRI survey results.  Perhaps low win rates for discrimination plaintiffs contribute to low confidence in the civil justice system.  Also, given that many survey participants reported generally favoring individuals above corporations, perhaps discrimination plaintiffs would fare better, on average, if more had an opportunity to try their cases before a jury.  (Or maybe not – discrimination plaintiffs have a high loss rate at trial and on appeal.)

Sep 28

California Could Make ‘Three Strikes’ Less Draconian

Posted 8 days ago by Mark Wilson

Oh, California. Almost twenty years after you passed Proposition 184, the “Three Strikes” law, you want to undo it. California’s Three Strikes law was not the first recidivism statute in this country; those have been around since the common law. It wasn’t even the nation’s first statute to arbitrarily decide that a baseball metaphor should become the basis of recidivist punishment.

What Three Strikes had going for it was that its litigation thoroughly cemented the legality of Draconian recidivist statutes throughout the country. In a pair of cases decided on the same day in 2003 — Lockyer v. Anrade and Ewing v. California — the Supreme Court said that the Eighth Amendment would not be offended if Leandro Andrade were sentenced to 25-to-life for shoplifting $120 worth of videotapes. Nor would The Founders weep from beyond the grave if Gary Ewing received the same sentence for trying to walk out of a pro shop with three golf clubs stuffed down his pants. It’s a rare treat that a statute gets affirmed by the Supreme Court; rarer still that the same statute gets affirmed twice on the same day. I believe the Latin for that situation is super duper stare decisis.

But we’ve learned some things since 1994. One is that violent offenders, whose imprisonment was the focus of Prop. 184 after 12-year-old Polly Klaas was abducted and murdered by a repeat offender, are the least of Three Strikes’ concern. A 2010 report by the California State Auditor found that 53% of inmates in prison because of Three Strikes are there because of a nonviolent, nonserious crime. Another lesson is that California’s prison system is unconstitutionally over capacity. A third lesson is that California is running out of money, and it turns out that keeping prisoners incarcerated for life is really expensive. Together, these lessons tell us that California’s penal system, thanks in part to Three Strikes, is out of control.

With Prop. 36, there’s a middle ground between getting rid of Three Strikes altogether (which any legislator who needs the support of police unions — which is to say, most of them — are loath to suggest) and keeping it. Prop. 36 codifies what Prop. 184 was billed to do: apply to violent offenders, not any offenders. What’s more, Mr. Andrade and Mr. Ewing might get the relief they were denied in 2003, as Prop. 36 requires Three Strikes offenders be re-sentenced.

As with the Death Penalty initiative also on the ballot this year, proponents are addressing the cost to taxpayers of what should be universally recognized as a wasteful incarceration system. Since the 1980s, California’s prison population has jumped 500% and prison spending has gone from 3% to 11% of the state budget. Even though Three Strikes supporters cite the law as influential in declining violent crime, the fact remains that, nationally, violent crime was on the decline before Three Strikes became law and that imprisonment for “violent” crimes remains high in spite of this continuing decline. (Indeed, even in jurisdictions without harsh recidivist punishments, there was — and still is — a decline in violent crime.)

Sep 28

#MuslimRage and the roots of intolerance

Posted 8 days ago by Najah Farley

By now, everyone is aware of the Newsweek cover story titled, Muslim Rage, which has been the target of both praise and ridicule throughout the blogosphere and national news. After Newsweek published the cover story with the cover photo of Muslim men almost literally frothing at the mouth in anger, there was a social media backlash on Twitter, where Muslims wrote back about their perceptions of Muslim Rage. Also, Gawker published 13 Powerful Images of Muslim Rage, which included a number of comical pictures of enraged Muslims, one depicting the rage of a Jordanian toddler holding a flag and another showing Iranian Muslims who were making snowmen were in the midst of a “snow rage.”

Outside of the comical aspect of this story, it is an important to recognize what these continuous photos and depictions of Muslims enraged do to our national consciousness. The constant images are part of a continuous dehumanization of Muslims and the Muslim world. It is in the context of these depictions that we continue to hear more and more about President Obama’s drone program, which targets areas of Pakistan and Afghanistan, but outside of the left leaning progressives, few have raised many questions about this program and its utility. Some have speculated that the drone program and targeted assassinations are the more concrete cause of the riots across the Muslim world, but I would argue that our tolerance of the drone program and the targeted assassinations are related to the prevalence of these images of Muslim rage. Because, as long as we as Americans continue to see Muslims as the other, a people intent on America’s destruction, it is easy to for us, as Americans, to justify these programs, programs that have led to constant fear and terror in certain areas of the Muslim world.

Sep 23

The Beginning of the End for Super Mario and Big Ben

Posted 13 days ago by idalton

After almost three years at the edge of the abyss, recent weeks have given rise to renewed optimism that the global economy is at last returning to stability. Stock markets across the world have shown new dynamism despite economic indicators pointing to sluggish activity in the US (with anemic job creation and manufacturing levels) and China (where industrial production is still weak due to declining export demand from the Eurozone). At a time of such gloomy economic data, what precisely has sparked such an improvement in investor sentiment?

Credit for this uptick can certainly not be attributed to any political headway. Election year concerns in the US have stalled any governmental measures aimed at stimulating employment, construction or consumer spending, and will continue to do so for the remainder of the year. Indeed, a report prepared by Moody’s, a credit rating agency, cited federal legislators’ doubts over upcoming negotiations to avoid a so-called “fiscal cliff” and find alternatives to severe expenditure reduction and tax cut expiration.[1] In Europe, continued procrastination over a bailout for Spain’s distressed banking sector casts a long shadow over other countries such as Italy, Portugal and Ireland, whose fate is effectively tied with that of Spain.

Instead, institutions nominally outside the political arena have stepped forward. The German Constitutional Court, for instance, ruled that the establishment of the European Stability Mechanism, Europe’s permanent bailout facility, was consistent with the German constitution.[2] Once formally implemented, the ESM will enable distressed sovereigns to access emergency funding without requiring further approval from reluctant neighbor states and provides the Eurozone with a €700bn firewall. The importance of this development is less related to the size of the fund, which most commentators agree would do little in the event of a Spanish or Italian bailout application, and more meaningful as a signal of Germany’s growing acceptance to cede economic sovereignty in certain circumstances.

Market enthusiasm at the removal of this final barrier to the ESM’s introduction was quickly overshadowed, however, by a groundbreaking announcement by Mario Draghi, President of the European Central Bank. Facing considerable opposition from the German Bundesbank, Draghi unveiled the Outright Monetary Transactions program, a new bond-buying scheme that enables greater secondary market intervention by the ECB while mandating participating countries to adhere to strict bailout-like restrictions. This program goes beyond the ECB’s previous schemes in that it will be, in Draghi’s words, without “limits for the amount of outright monetary transactions.” Without straying from the Bank’s strict adherence to price stability, Draghi continued to articulate the case for greater central bank intervention, but there are significant concerns over the future health of the ECB’s balance sheet given its continued relaxation of collateral rules.

Building on this momentum, Ben Bernanke launched the Federal Reserve’s latest stimulus program (“QE3”), which provided an open-ended commitment to purchase more mortgage-backed securities as part of quantitative easing.[3] Citing the Fed’s mandate to facilitate full employment, the Fed’s move is designed to (1) increase downward pressure on interest rates and (2) encourage a rise in asset prices and personal consumption. Critics have cited a multitude of concerns with the scheme, from its dubious pre-election timing to the deteriorating quality of the Fed’s balance sheet.[4] Nevertheless, stock markets spiked, with the S&P 500 now up 5.9% since August,[5] and sovereign bond yields across the Eurozone receded from recent highs.

Perhaps the most immediate challenge facing monetary policymakers will be in managing expectations. At a time when interest rates are at or near zero, the Fed and ECB are concocting increasingly innovative ways to stimulate growth and keep markets satisfied. This will become unsustainable if and when price inflation re-emerges as a primary concern. The actions of this extraordinary week begin to show to waning influence of central bank interventions; at some point in the very near future, governments need to lead from the front.

Sep 21

“Papers, Please” Provision Comes into Effect in Arizona

Posted 15 days ago by Sushila Rao

Police in Arizona—the busiest point in the country for illegal entry—can now begin conducting immigration status checks of any person stopped for any reason and suspected of being in the country illegally, after a federal judge lifted an injunction against the controversial provision of Arizona Senate Bill 1070 mandating such checks.

The precise text of the bitterly divisive measure, Section 2B, reads as follows: “For any lawful contact made by a law enforcement official or agency of [Arizona] where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person’s immigration status shall be verified with the federal government pursuant to  United States Code section 1373(c).”

To its proponents, this requirement constitutes the crux or the “heart” of the law, as it is the most “effective” way to ensure rigorous implementation. This is premised on the arguably “cost-effective” nature of the “attrition through enforcement strategy” to curb illegal immigration.

However, the provision also portends the danger of grave civil rights abuses.  Civil and immigrant rights groups denounce the law for “inviting racial profiling against people of color by law enforcement in violation of the equal protection guarantee” of the Fourteenth Amendment. The danger is self-evident, so much so that it perhaps even rises to the level of being an instance of conscious racial hostility and discriminatory intent on the part of Arizona’s legislature.  For some, it is a throwback to the days of the infamous Chandler Round-up:  over five days in July 1997, police officers on bicycles patrolled the city of Chandler, Arizona asking “suspected” Hispanic people to provide proof of citizenship, and arresting those who could not.

Supporters point out that the original Senate Bill 1070 was promptly modified by House Bill 2162, with the amended text stating that “prosecutors would not investigate complaints based on race, color or national origin.” The new text also states that police may only investigate immigration status incident to a “lawful stop, detention, or arrest”.  Yet the widespread incidence of racial profiling of Latinos, Asian-Americans and others presumed to be “foreign” based on their appearance and/or accent renders such changes only mildly ameliorative, if at all.

In the interim, Arizonan civil rights organizations are attempting to help undocumented immigrants cope with the new realities of living in Arizona, by educating them about their rights and preparing them for routine interactions with police, such as at traffic stops.  Most crucially, they must counter the prevalent misconception that undocumented individuals cannot claim rights protection. The main thrust of the message: remain silent and ask for an attorney.  A parallel civil disobedience-esque effort is also underway to urge people not to cooperate with immigration enforcement  efforts—even if they’re in the country legally.

U.S. District Judge Bolton—who refused to stay the enforcement of this provision on Tuesday—had reasoned that the law’s opponents were merely speculating on the possibilities of racial profiling.  The Ninth Circuit Court of Appeals is currently considering a request to halt the  provision.

 

Sep 14

Renewed Hope? Pakistan’s Blasphemy Laws Under the Scanner Again

Posted 21 days ago by Sushila Rao

Even as we continue to grapple with the horrific fallout of the provocative Innocence of Muslims film, the latest blasphemy-related saga in Pakistan appears to be headed for an unusual but highly welcome conclusion—the accused has been released on bail, and her accuser has been arrested for falsely implicating her.

The offender this time around was Rimsha Masih, a 14-year-old Christian girl who is believed to have Down syndrome. She was arrested for carrying scraps of a partially burned book that allegedly included verses from the Quran in her bag. A local cleric was later arrested for having planted evidence against Rimsha. It is speculated that he was acting on behalf of a group that allegedly wants to “cleanse” the local area of its Christian minority residents.  Rimsha has been released, albeit on a surety of 1,000,000 Pakistani rupees—a development that is being hailed as a watershed moment by lawyers and activists.

After all, in recent times, those who have incurred the wrath of the blasphemy brigade have not been quite so fortunate. In 2010, the plight of Asia Bibi, a Christian woman sentenced to death by hanging for allegedly insulting the Prophet Mohammad while arguing with fellow farm workers, had raised international furor.  She is currently on death row, pending appeal of her sentence.  Her case was widely denounced as a patent miscarriage of justice, leading the then-Governor of Punjab, Salman Taseer, to call for repealing the anti-blasphemy provisions in 2011—a courageous pronouncement for which his own bodyguard promptly assassinated him. Two months later, Shahbaz Bhatti, the only Christian in the Pakistani cabinet, was also shot dead after he criticized the anti-blasphemy laws.  And as recently as July 2012, an enraged mob dragged a man accused of desecrating the Quran from a police station in Bahawalpur, eventually dousing him in petrol and setting him on fire.

Activists and concerned clerics are touting the Rimsha case as a “test case” for Pakistan’s governing apparatus as well as its civil society, which will determine whether the nation can distance itself from a past marred by the practice of religious persecution.  Part XV of Pakistan’s Penal Code criminalizes “Offences Relating to Religion,” first codified by the British in 1860, and later expanded in 1927. Between 1980-86, the military government of General Zia-ul Haq added a significant number of provisions, with a predominantly Islamist flavor. A study by the Jinnah Institute revealed that there were only nine blasphemy cases in Pakistan between 1929 and 1982; since then, the number of blasphemy cases has sharply increased. As constitutional scholars in Pakistan have pointed out, apart from severely restricting the freedom of speech, these newly inserted provisions have made Muslims “more equal” than others in a sense.  For instance,  defilement of the “religious object” of Muslims—the Holy Qu’ran—now results in life imprisonment  under Section 295B of the Penal Code, while a similar offence against other communities will result in two years imprisonment.  Similarly, under Section 295C, a conviction for blaspheming the Prophet of Muslims carries the penalty of death or life imprisonment, while similar offenses with regard to important figures in other religious traditions carries the maximum penalty of 10 years under Section 295A.

The existence of these provisions on the statute books is evocative of a symbolic Damoclean sword for non-Muslims as well as Muslims exercising their freedom of speech, thought or action, inasmuch as reports show that the law is misused to harass, intimidate and settle personal scores.  Moreover, to obtain a conviction for blasphemy, intent need not be proved as an element of the offense. In an oft-cited case, a man from the minority Ismaili sect was accused of blasphemy for discarding the business card of a man named Muhammad.

Even more worrisome is the fact that since 1990, 52 people have been extra-judicially killed, simply for being  implicated on unproven charges of blasphemy, or even after being acquitted by the courts. Half of those slain were Muslim, 15 Christian, and the rest from different minority religions.   At the lower rungs of the judiciary, there is often considerable pressure on judges to convict alleged blasphemers without adequate evidence, thereby leading to acquittals on appeal.  Given the prevalent climate of fear, efforts to reform the law have been few and far in between.  In 2010, a member of the ruling Pakistan People’s Party, Sherry Rehman, introduced a private bill to amend the law to provide that these offences be reported to a higher police official (rather than the usual police station chief) and be heard in the first instance directly  by the higher courts.  It was withdrawn in February 2011 under pressure from religious forces as well as some opposition political groups. Broader legal reform of the blasphemy provisions remains, for the moment, politically “toxic,” and hence, untenable.

Sep 11

11 years later, how far have we come?

Posted 25 days ago by Najah Farley

Today marks the 11th anniversary of the 9/11 attacks. As a nation, we have seen many changes since that horrific day. Our nation began fighting the global war against terror, which is ongoing in Afghanistan. We also fought the war against terrorism on our own shores, by loosening the protections on civil liberties to allow for greater surveillance in our everyday lives. We have submitted to a multitude of changes, in particular in the areas of travel and communications. We have become accustomed to these changes, because they have been presented as the trade-off for safety.

As a member of the Muslim community, the years since 9-11 have been even more of a roller-coaster. There has been street harassment, increased scrutiny by law enforcement and as a corollary, vigilante violence. With Obama’s election, it seemed that the trajectory had changed. When the electorate rejected the McCain-Palin campaign and with it the blatant racism and prejudice it attracted, many of us hoped that there had been a referendum on the atmosphere of racism and prejudice that had been allowed to fester. We anticipated that the change in party would lead to substantive changes in the areas of civil liberties and greater tolerance for Muslims and other communities marginalized in the aftermath of 9-11, such as the Arab and South Asian communities. Read more

← Older Entries