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December 2011

December 12, 2011
Saving Grace: Salvaging the Pardon Advisory System
Guest Post
By Samuel Morison, a criminal defense attorney in Washington, D.C., and a former staff attorney at the Office of the Pardon Attorney.

For most of this country’s history, the practice of executive clemency has quietly functioned as an ancillary feature of the criminal justice system, without attracting much attention. The purpose of the pardon power, as the Founders envisioned it, was to fill the inevitable gaps in the just and humane infliction of punishment. In addition to being a failsafe to correct injustices that escaped judicial scrutiny, executive clemency was conceived as an equitable vehicle for bestowing legal “forgiveness” in appropriate cases. As the Supreme Court observed in Ex Parte Grossman, “[t]he administration of justice … is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.” Hence, “[e]xecutive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.”

Beginning in the 1970’s, however, under the influence of the “new retributivism,” the prevailing rehabilitative paradigm began to collapse, along with the traditional practices of discretionary sentencing and parole. In its place, we have witnessed the ascendance of determinate sentencing schemes, including strict mandatory minimum penalties for a broad array of offenses, most notably the distribution of illegal drugs. However well intentioned, the rhetoric of retribution quickly degenerated into a crass endorsement of punitive incapacitation for its own sake, with little regard for what any particular offender actually deserves. The result has been a burgeoning federal prison population of more than 200,000, coupled with thousands more ex-felons who labor under the burden of lifetime collateral disabilities.

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Executive power, Criminal Justice, Separation of Powers and Federalism, Bush administration, Department of Justice, Ex Parte Grossman, executive clemency, Guest Post, Office of the Pardon Attorney, pardon power, ProPublica
December 12, 2011
High Court to Consider Arizona’s Anti-Immigrant Law
by Jeremy Leaming

The Supreme Court announced this morning it will wade into yet another high-profile constitutional concern, taking for review Arizona’s controversial anti-immigrant law.

SCOTUSblog's Lyle Denniston, noting the Court has already agreed to consider the constitutionality of the Obama administration’s signature domestic law, the Affordable Care Act, and redistricting in Texas, the justices have now taken on “the searing constitutional – and political – controversy over state power to strictly limit the way undocumented immigrants live their lives in the U.S.”

Denniston notes, Ariz. Gov. Jan Brewer (pictured) is arguing that her state’s law, S.B. 1070, is a “major test of the sovereignty of the states to make their own social policies under traditional ‘police power’ principles.’” The Obama administration, which has also challenged parts of Alabama’s stringent anti-immigrant law, argues that the Arizona law undermines the federal government’s role in setting immigration policy. (Article I, Section 8 of the Constitution states that Congress has the power to “establish an uniform Rule of Naturalization," ….)

Earlier this year, the U.S. Court of Appeals for the Ninth Circuit blocked several provisions of S.B. 1070, including one that “allows police to arrest without a warrant any person for whom the officer has ‘probable cause to believe’ that the individual has committed any crime, anywhere, that would make that individual subject to being deported,” Denniston writes. Additionally, the Ninth Circuit blocked provisions that require state police to attempt to determine a suspect’s immigration status upon arresting them, that make it a crime to not carry immigration documentation and a misdemeanor for undocumented workers to seek and apply for work.

Justice Elena Kagan recused herself in the case, Arizona v. United States, apparently because she was involved in the handling of the case when she was U.S. Solicitor General. If, as The Huffington Post’s Mike Sacks notes, the justices split 4-4, the Ninth Circuit opinion would stand.

Karen Tumlin, an attorney with the National Immigration Law Center, applauded the high court for taking the case.

“This case boils down to a question of whether Arizona can mandate that its officers interrogate individuals about their immigration status and attempt to enforce civil immigration law,” Tumlin told ABC News.

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Supreme Court, Immigration, Separation of Powers and Federalism, Ala. Attorney General Luther Strange, Alabama, anti-immigrant policy, Ariz. Gov. Jan Brewer, Arizona, Karen Tumlin, National Immigration Law Center, Pratheepan Gulasekaram, SB 1070
December 9, 2011
Why Health Care Coverage is Dependent on a Diverse Pool of Participants
by Jeremy Leaming

A recent opinion from the California Supreme Court regarding a county’s effort to reduce costs by forcing older workers out of the health insurance risk pool provides a prime example of the vital importance the individual mandate is to the Affordable Care Act, Catherine Fisk, a distinguished law professor, writes for the Daily Journal.

Fisk, the Chancellor’s Professor of Law at the University of California, Irvine School of Law, explores the California high court’s rejection of “Orange County’s attempt to exclude retired workers from the county’s health insurance risk pool,” which she says was proven to be “both unconstitutional and unwise.”

As Fisk explains, Orange County officials in an effort to address budgetary matters “unilaterally changed the way it pools employees for purposes of setting health insurance premiums.” Essentially county officials forced retired employees to pay higher health insurance premiums. The state’s high court sent the case back to a trial court to hear retired employees’ argument that county officials had violated a contractual agreement by altering its health insurance benefits.

Fisk writes:

This decision shows that Orange County went about controlling its health insurance costs in exactly the wrong way, by attempting to separate those who are more expensive to insure from everyone else. For health insurance to remain affordable to everyone, especially older people or people with catastrophic illnesses or injuries, the risk pool on which the insurance premiums are based must remain diverse. Insurance is all about spreading risk. Healthy people subsidize health insurance for the unhealthy; experienced drivers subsidize auto insurance for younger drivers.

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Supreme Court, Other courts, Economic, Workplace and Environment Regulation, Affordable Care Act, California Supreme Court, health care, health insurance benefits, health insurance risk pool, Medicaid, Orange County, President Obama, Professor Catherine Fisk
December 9, 2011
This Week on JudicialNominations.org
The Senate voted this week to block a confirmation vote on Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit. The vote of 54-45 on Senate Majority Leader Harry Reid’s motion to invoke cloture fell six votes short of the 60 needed to force an up-or-down vote on her nomination. “Today’s vote dramatically lowers the bar used to justify a filibuster, which had required ‘extraordinary circumstances,’” said President Obama. “The only extraordinary things about Ms. Halligan are her qualifications and her intellect.” ACS President Caroline Fredrickson and newly elected ACS Board Chair Peter Edelman issued statements criticizing Senate obstruction, and the move was blasted by The Washington Post, The Boston Globe, The Baltimore Sun, Andrew Cohen in The Atlantic and White House Counsel Kathy Ruemmler in The Huffington Post.

The Senate confirmed four district court nominees this week: Dana Christensen to the District of Montana, Andrew L. Carter, Jr. and Edgardo Ramos to the Southern District of New York and James Rodney Gilstrap to the Eastern District of Texas.

The Senate Judiciary Committee rescheduled the nomination hearing for Paul J. Watford, the president’s nominees to the U.S. Court of Appeals for the Ninth Circuit. The committee also held over the nomination of Brian C. Wimes to the U.S. Court of Appeals for the Eastern and Western Districts of Missouri.

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Federal judicial selection, Judicial Nominations, Caitlin Halligan, filibuster, senate obstruction
December 9, 2011
A Changed State Department
Guest Post

By Ambassador (Ret.) Michael Guest, Sr. Advisor, Council for Global Equality. This commentary is cross posted at Advocate.com. For more analysis of the Obama administration’s diplomatic efforts on LGBT human rights visit Global Equality Today.

Secretary Clinton’s December 6 Geneva speech on LGBT rights is another high-water mark in the Obama Administration’s integration of the human and civil rights of LGBT people into U.S. foreign policy.

Clinton spoke to a diplomatic audience, one that included ambassadors from a range of countries that criminally penalize same-sex relations and relationships. Her message – that LGBT people are humans with inherent and equal value – was framed with reason and wrapped in sensitivity to culture and religion. The references to her own personal journey on this issue, and to that of our country, underscored that fairness for LGBT people is a common cause, not a subject for lecture.

This, of course, confirms a refreshing change of direction for U.S. diplomacy on a previously ignored problem. The U.S. is a latecomer in international efforts to address the horrific abuses that LGBT people suffer around the world, and the need for our voice has never been more acute. The Obama Administration has risen to the occasion in numerous examples where LGBT rights have been at stake. Although a good start, these efforts often have carried a catch-up feel, without strategic thought or direction. Clinton’s speech provides that framework and direction.

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LGBT issues, Equality and Liberty, Dec. 6 Geneva speech, Guest Post, Human Rights, Michael Guest, Obama administrationm, President Obama, Secretary of State Clinton, U.S. foreign policy

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