... and Justice for All: February 2014

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February 2014

February 12, 2014

What about Professional Diversity On the Federal Bench?

"The life of the law has not been logic; it has been experience," so said Justice Holmes long ago. It's true enough but what kind of experience and for whom? As far as the federal judiciary goes, does it make a difference what is the professional background and experience of the persons serving on our federal bench. If the life of the law is experience, it seems inescapable that it does.

The Alliance for Justice has issued a report, Broadening the Bench: Professional Diversity and Judicial Nominations, pointing out the extremely disproportionate representation of corporation lawyers and prosecutors in the federal judiciary, a situation that President Obama has perpetuated. Here's some facts about President Obama's nominees for the federal bench:

8 (3.5%) district court and 2 (3.6%) circuit court judges who have worked for public interest organizations, for an overall total of 3.6% of all nominees.

85 (38%) district court and 27 (48%) circuit court judges who have served as civil government attorneys, for an overall total of 40% of all nominees.

5 (2.2%) district court and 9 (16%) circuit court judges who have been law professors, for an overall total of 5% of all nominees.
97 out of 225 district court nominees (43%) have been state or federal prosecutors. Thirty-four out of 225 (15%) have been state or federal public defenders, while 51 out of 225 (23%) have been private criminal defense attorneys.
21 of 56 circuit court nominees (38%) have been prosecutors. Ten of 56 (18%) have been private criminal defense attorneys, and 4 of 56 (7%) have been public defenders. Only one nominee, Jane Kelly, has been a federal defender.
71% of President Obama's district court nominees have practiced with primarily corporate or business clients, while only 28% have practiced with either primarily non-corporate clients or a mix of corporate and non-corporate clients.
73% of President Obama's circuit court nominees have practiced with primarily corporate or business clients, while only 16% of practiced on behalf of noncorporate or a mix of clients.
Overall, this imbalance between corporate and nine-corporate lawyers is 71% versus 25% in favor of corporate attorneys.
Of all 281 circuit and district court nominees so far, 10 have significant experience representing workers and employees in labor and employment disputes. Four have experience representing environmental plaintiffs, while 26 have practiced in plaintiff tort or personal injury litigation.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on February 12, 2014 | Permalink | Comments (1) | TrackBack (0)

Tags: Alliance for Justice, federal bench, federal judiciary, Justice Holmes, professional diversity

February 10, 2014

Qualified Immunity and "Clearly Established" Constitutional Rights

A recent posting discussed a Sixth Circuit decision in which the majority gleefully asserted that it "happily" was able to throw the plaintiff's case out of court, a case brought by an American citizen who was taken to jail and locked up with not even a fig leaf of explanation being offered and the law enforcement officer acknowledging that all available information indicated the wrong man was being arrested. "Happily" The Sixth Circuit Rules That American Citizens Have No Constitutional Protection Against Arbitrary Arrest and Jailing. One of the criticisms, in addition to the disappointing tone of the majority opinion by Judge Jeffrey Sutton, was the Court's refusal to rule that the arrest did violate the citizen's constitutional rights, a ruling that might save other citizens from arbitrary arrests. I say might save, because I want to believe that once the courts tell law enforcement officers that doing something is wrong and they can be sued for it, they will stop doing it. Seems simple but it's not.

This scenario has again arisen in the recent case, T.S. v. Doe, No 12-5724 (6th Circuit, February 5, 2014). The issue in Doe was whether a juvenile had a clearly established constitutional right in 2009 preventing jail personnel from strip searching them when they'd been arrested and brought in on a nonviolent offense and there was no basis whatsoever to think that a full-body, naked search was necessary to protect or promote jail security.

The Sixth Circuit, a unanimous panel consisting of Circuit Judges Danny Boggs and Bernice Donald joined by District Judge Fred Stamp of West Virginia, ruled no such constitutional right was clearly established in 2009. In their opinion, the court discussed some of the vagaries that come up in the development of the law:

The law can have a good deal of arbitrariness in its temporal development. Courts may not resolve a legal question until it is presented in a real case or controversy. Thus, neither we nor public officials have any control over when a particular rule is clearly established or (in this case) clearly rejected.

This assertion is fair: courts do have very control or input over the cases and issues that are brought up before them. Having made this observation about the at times erratic development of the law one would expect the court to address the constitutional issue presented it. But instead of doing this and putting the issue to rest the court perpetuates the arbitrariness that it purports to lament: "We need not, and do not, opine on the constitutionality of the strip searches."

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on February 10, 2014 in justice system | Permalink | Comments (0) | TrackBack (0)

Tags: constitutional rights, Judge Danny Boggs, Judge Jeffrey Sutton, qualified immunity, Sixth Circuit, strip search

February 03, 2014

Justice Department Asks for Clemency Petitions From Crack Cocaine Defendants

From the 1980's through 2010 crack cocaine offenses were punished under federal criminal law at a rate 100 times greater than powder cocaine. For example, an offense involving 5 grams of crack cocaine was subject to the same mandatory 5 year sentence as 500 grams of powder cocaine. This made no sense, since you can't have crack cocaine without powder cocaine. Crack cocaine defendants were overwhelmingly black, while powder cocaine defendants were predominantly white. The racial discrimination and injustice of this disparity was recognized back in early 1990's and was subject of concerted efforts of change up to 2010 when the Fair Sentencing Act was passed. Lexington, Kentucky criminal defense lawyer Robert Abell wrote an article to prod this process back in 2005 published in the Lexington Herald-Leader: Congress Must Fix Inequitable Drug Sentences.

In 2010, Congress passed the Fair Sentencing Act which reduced the 100-to-1 disparity down to 18-to-1. However, the federal appeals courts have so far ruled that this change in the law does not benefit defendants sentenced before 2010; in other words, the federal courts of appeals have so far ruled that thousands of prisoners must remain in jail even though we all know it's wrong, unjust, wasteful (in all kinds of different ways) and racially discriminatory. Most recently, the Sixth Circuit en banc made this ruling 10-7 in United States v. Blewett, 12-5226 (December 3, 2013).

Perhaps the Supreme Court will take up the issue. My prediction is that the Court will rule that the Fair Sentencing Act of 2010 can be applied to defendants sentenced before its enactment. This will be similar to the Supreme Court's ruling in the Booker/Fanfan cases where every court of appeals had ruled that the sentencing guidelines were mandatory and must be followed only to be reversed by the Supreme Court.

If the Supreme Court does not take up the issue, there are several pieces of legislation that have been introduced in Congress including one jointly sponsored by what appears to be a political Odd Couple, Democratic Senator Richard Durbin of Illinois and Republican Senator Mike Lee of Utah, the Smarter Sentencing Act. In reasonable anticipation that neither Congress nor the Supreme Court will act, the Justice Department is requesting clemency petitions on behalf of President Obama.

If you know of a defendant convicted of a crack cocaine offense in federal court before 2010, he or she may be able to benefit from a clemency petition; contact Lexington, Kentucky criminal defense lawyer Robert Abell at 859-254-7076.

Robert L. Abell
www.RobertAbellLaw.com