ACS is pleased to distribute “From Error Toward Quality: A Federal Role in Support of Criminal Process,”, an Issue Brief by James M. Doyle. Mr. Doyle is a lawyer in private practice with the Boston law firm of Carney & Bassil and the former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, which is the statewide public defender agency.

Mr. Doyle begins his Issue Brief by observing that “[c]ontemporary medicine is experiencing a vibrant quality reform movement born in the aftermath of horrific reports of fatal medical errors.” Based on the reform experience in medicine, which is a team-oriented effort built on learning from routine human errors to improve practices and “prevent those inevitable errors from ripening into tragedies,” he sees an opportunity for the federal government to “catalyze the willingness of criminal justice practitioners and stakeholders to learn from their own mistakes . . . and lay the groundwork for a continuous quality improvement initiative in America’s criminal justice systems.” With the federal government’s help in designing a common template for assessing errors in the system, serving as a clearinghouse for collecting and sharing the analyses of errors performed at the local level, and providing other modest technical and financial support, Mr. Doyle believes that this effort could “set in motion a cultural shift that improves criminal justice, not by imposing top-down federal micro-management, but by exploiting the talents and insights of local systems’ frontline practitioners.” He also believes that it could “change a culture to one that routinely, every day, concentrates on improving the reliability of the criminal process for the victims, the accused, and the public.”

Mr. Doyle’s Issue Brief is the second in a series that ACS will be publishing focused on ideas about a possible role that the federal government can play in improving indigent defense systems in states around the country. Attorney General Eric Holder, Congress, and many other federal policymakers have taken notice of the crisis in indigent defense that has existed since 1963 when the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one, and they have specifically identified reform of the system as a priority. Mr. Doyle’s systemic approach to criminal justice reform, which he believes will help identify problems that undermine compliance with the Sixth Amendment, offers another recommendation as to what the U.S. Department of Justice, Congress, and other parts of the federal government do to help bring about reform.

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ACS is pleased to distribute “The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role,” an Issue Brief by Rebecca L. Brown, Newton Professor of Constitutional Law at the University of Southern California Gould School of Law. In this Issue Brief, Professor Brown discusses Perry v. Schwarzenegger, in which the United States District Court for the Northern District of California is considering whether the United States Constitution requires states to permit marriage between individuals of the same sex. While strong arguments may very well exist for a broad ruling, Professor Brown suggests that the case might also lend itself to a more modest resolution of the claims raised. Proposition 8 was a ballot initiative that originated as a reaction to a California Supreme Court decision interpreting California’s Constitution as requiring the state to permit same-sex couples to marry; Proposition 8 subsequently added to the California Constitution a provision that “[o]nly marriage between a man and a woman is valid or recognized in California.” After extensive analysis of case law, the author concludes that the United States Constitution’s Equal Protection jurisprudence dictates that Proposition 8 be struck down, since “[a]ny legislation must have a public purpose other than stigmatization,” and “no public purpose that could plausibly be served by this retroactive reduction in status has been offered to dispel the usual inference that any act of stigmatization is a violation of the state’s obligation to legislate impartially.”

While a decision along these lines would not touch upon the breadth of the fundamental right to marry, Professor Brown suggests that this modest resolution of Perry "would fulfill the best expectations we have of the federal judicial role, to resolve the case on strong, unassailable, time-honored, and yet narrow, grounds." As the author argues:

"A ruling of the kind I will advocate would not be an act of minimalism, but neither would it be an act of maximalism. Rather, this would be an exercise in judicial optimalism -- using good judgment to determine just how much judicial intervention is necessary to vindicate the core and essential purposes of the judicial role, without unnecessarily diverting the course of more widespread social and political movements that are at the heart of healthy and lasting legal change."

Click Here to Download the Issue Brief

On the Eve of Historic Healthcare Vote, ACS Distributes Timely Issue Brief

In “Mandatory Health Insurance: Is It Constitutional?,” Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, addresses arguments regarding the constitutionality of the individual mandate that constitutes a core part of the healthcare legislation under consideration. Mr. Lazarus argues that the mandate is clearly lawful and in accord with the Constitution.

In this Issue Brief, Mr. Lazarus argues that multiple provisions of the Constitution permit Congress to enact an individual mandate as part of healthcare reform legislation. He claims that “the Supreme Court decades ago, in 1944, held that the business of insurance fell within Congress’ regulatory authority under the Commerce Clause,” and that modern cases which limit the reach of the Commerce Clause authority do not undercut the authority of Congress to legislate in this area. Mr. Lazarus also argues that the individual mandate is authorized by the Congressional authority to tax and spend for the general welfare. Mr. Lazarus concludes that no provision of the bill of rights, or text found elsewhere in the Constitution, acts to prohibit Congress from enacting healthcare reform legislation.