Lethal Injection Case Exposes Deep Fault Lines Within the Supreme Court on Capital Punishment

wilsonThe following post, by AUWCL International Human Rights Law Clinic founder Richard J.Wilson, originally ran in the Human Rights at Home Blog.

Yesterday’s 5-4 decision by the Supreme Court in Glossip v. Gross was, in one way, the affirmation of a longstanding pattern in the court. As both the majority and concurrences point out, the court has never struck down a state’s chosen procedure for carrying out the death penalty. Hanging, electrocution, lethal gas, the firing squad, and lethal injection itself have all withstood constitutional scrutiny. The court had previously upheld a three-drug protocol for lethal injection seven years ago in Baze v. Rees. Here, both the district court and court of appeals had upheld Oklahoma’s use of a different three-drug protocol involving the use of midazolam, a sedative used with the other drugs to induce a state of unconsciousness. The majority opinion, authored by Justice Alito, pointed out that the petitioners had to show the likelihood that they would prevail on the merits, and that the lower courts had not committed “clear error” on the facts. The petitioners failed to carry their burden to show that Oklahoma’s amended protocol poses an “objectively intolerable risk” of severe pain, the majority concluded, and the lower courts’ decisions were affirmed. Simple. So why did the opinion run to 127 printed pages, with two concurrences and two dissents that each were significantly longer than the majority’s ruling? Why were there frequent text and footnote attacks on colleagues’ flawed logic or analysis, often hostile and vitriolic? This is a deeply polarized court on the application of the death penalty itself, and in Glossip, the justices bared their claws for that fight.

This decision brings human rights home in two significant ways. First, the case itself arises from a highly effective international boycott on the manufacture and sale of one of the drugs approved by the court in Baze, a drug that had become the primary sedative in the three-drug protocol used by most states in carrying out lethal injections. As Justice Alito says in his opinion, “activists” and “anti-death-penalty advocates” pushed companies in Europe to stop sale of the drug in question to U.S. prisons for use in executions. While the Alito opinion suggests that this was a civil society movement alone, it in fact was backed by the European Union governments themselves, whose 28 member countries have strongly opposed the use of the death penalty in the United States. Rather than simply expressing their views in the media or in the courts, these governments acted to support what has been called a “moral marketplace,” putting pressure on European companies not to sell execution-related drugs in the U.S. The use of substitute drugs in the lethal injection protocol had led to a number of botched executions across the country, far more than only the state killing of Clayton Lockett in Oklahoma, a shocking example briefly alluded to in the majority opinion and described in graphic detail in Justice Sotomayor’s dissent, joined by Justices Breyer, Ginsburg and Kagan. How effective the execution drug boycott will continue to be after Glossip remains to be seen.

A second, and perhaps more significant development, was the separate dissent by Justice Breyer, joined by Justice Ginsburg. Breyer’s opinion raises the core question of whether the death penalty itself violates the constitution. It documents a sordid history of executions of innocent people, scores of exonerations of death row inmates over the years, arbitrariness in the death penalty’s imposition, the lack of adequate funding for defense counsel, and protracted delays in execution, now averaging around 18 years. Justice Breyer’s careful documentation and data on those issues provoked strong attacks from both Justices Scalia and Thomas, each of whom wrote a special concurrence solely to assault the Breyer position. Justice Scalia, always ready with barbs and unbecoming sarcasm when in the minority, calls the Breyer opinion “a white paper devoid of any meaningful legal argument,” an argument “full of internal contradictions and (it must be said) gobbledy-gook.” He concludes his opinion with this sentence: “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.” Harsh words for a cordial colleague. Yet neither he nor the ever-silent Justice Thomas addresses Breyer’s core arguments on exonerations, the right to counsel, or racial disparities in the imposition of the death penalty.

Justice Breyer invokes comparative and international law arguments in his attack on capital punishment. Noting that death row inmates stay in solitary confinement over long periods of time on death row, Breyer refers to theUN’s Special Rapporteur on Torture, who has called for a ban on solitary confinement over 15 days. He rehearses an argument often successfully made in other courts around the world: the agonizing years of uncertainty while awaiting execution, exemplified in the decision by the European Court of Human Rights in Soering v. United Kingdom.  There, the court refused to extradite a murder suspect to the United States because of the risk of the prolonged wait on death row, which the court found would be cruel, inhuman or degrading. Breyer invokes that case and similar decisions from Canada, Jamaica, Zimbabwe, and South Africa. He notes that he relies “primarily on domestic, not foreign events” in arguing that the death penalty is “unusual,” anticipating Scalia’s rant about the non-existence of a “world community,” yet notes that in 2013, only 22 countries of the 193 countries in the world carried out an execution, and only eight, including the United States, executed more than 10 individuals. The Inter-American system for human rights protection has never directly addressed the question of methods of execution as a human rights violation, but a decision on admissibility in Medina v. United States, suggests that they will find the use of the electric chair to constitute such a violation. The death penalty is inexorably fading away in practice around the globe, and Justice Breyer is yet another of many Supreme Court members who are its prophets of doom.

I cannot, in good conscience, end this post without a brief allusion to the bizarre requirement, added in the court’s majority opinion, that, in order to prevail on their claim of unconstitutionality, the petitioners themselves must offer a “known and available alternative” method of execution that is not intolerably painful. As Justice Sotomayor aptly notes in her dissent, “some condemned inmates may read the Court’s surreal requirement that they identify the means of their death as an invitation to propose methods of execution less consistent with modern sensibilities.” Et tu, death row inmates?

Immigrant Justice Clinic Argues Case Before Virginia Supreme Court

Jayesh Rathod, Rachel Nadas, Scott Seguin
Jayesh Rathod, Rachel Nadas, Scott Seguin

The Immigrant Justice Clinic (IJC) at American University Washington College of Law argued a case in January before the Supreme Court of Virginia.

The clinic represented Michael Z., a lawful permanent resident who accepted a plea deal that rendered him deportable. The issue before the Court involved the legal standard that a court must apply in determining whether a non-citizen was prejudiced by a trial attorney’s representation.

Third year student Rachel Nadas argued the case, which was co-supervised by Professors Jayesh Rathod and Jenny Roberts.

“Having the opportunity to present oral argument at the Supreme Court of Virginia was an incredible experience,” said Nadas. “Although I was nervous to argue before seven justices, I’m really happy with how the argument went.”

Taking on Michael’s Case

The clinic took on representation of Michael in 2013. He has been a lawful permanent resident since the age of eight. He pleaded guilty to petit larceny with a 365-day suspended sentence, and that single conviction meant that Michael was classified as an aggravated felon for immigration law purposes.

Not only did being an aggravated felon render Michael deportable, it also barred him from seeking various forms of immigration relief.  His criminal defense attorney never informed him of the severe immigration consequences of pleading guilty. He only learned that this offense made him deportable months after accepting the guilty plea when he was picked up by Immigration and Customs Enforcement. At the conclusion of his immigration proceedings, Michael lost his status as a lawful permanent resident and was ordered deported.

Michael has remained in the U.S. because he was granted withholding of removal, a temporary form of immigration relief that allows him to remain in the U.S. due to fear of persecution or death if returned to Ethiopia.  Hoping that Michael could receive a more permanent form of immigration relief, the Clinic pursued a habeas corpus petition to challenge Michael’s petit larceny conviction.

Sofia Vivero’14 and Joe McGlew-Castañeda‘14, student attorneys in the Immigrant Justice Clinic in 2013-14, filed for a writ of habeas corpus with the county court.  They argued that Michael received ineffective assistance of counsel due to failure to provide advice about the deportation consequences of the guilty plea under Padilla v. Kentucky, a 2010 U.S. Supreme Court case that requires criminal defense attorneys to advise their clients about clear deportation and potential immigration consequences of their criminal convictions.  In Michael’s case, his defense attorney had failed to meet his obligations under Padilla. The Fairfax County Circuit Court denied the habeas petition and held that Michael had not met the prejudice prong of his claim, a requirement for an ineffective assistance of counsel claim.  The student attorneys filed a petition to appeal the case to the Supreme Court of Virginia, arguing that the Fairfax County Circuit Court applied the incorrect legal standard for showing prejudice.

“I’m thrilled I was able to have this experience as a law student.”

In September, the Supreme Court of Virginia agreed to take the full case on the merits.  IJC student attorneys in 2014-15, Alia Al-Khatib and Rachel Nadas, along with co-counsel Scott Seguin from Calderon Seguin, filed opening and reply briefs in the Supreme Court of Virginia on behalf of Michael.

“While writing the brief, it became incredibly clear how unfair such a sentence was for Michael,” said Al-Khatib. “For a minor, non-violent offense, he faced being separated from his family and the country where he had lived almost his entire life.  I was glad that the Clinic took on this case and pursued the habeas petition.”

Both Al-Khatib and Nadas say they enjoyed working on such an important and interesting case.

“I was extremely well prepared after being mooted by several AUWCL faculty members and practitioners,” said Nadas. “I’m thrilled I was able to have this experience as a law student and proud that the Clinic has done everything possible to advocate for Michael.”

The clinic co-counseled this case with Scott Seguin from the law firm Calderon Seguin.

Seguin said he is optimistic that the Virginia Supreme Court will issue a favorable opinion, which is expected sometime in February.

“It has been an absolute pleasure collaborating with the students at the Immigrant Justice Clinic on Michael’s case,” said Seguin. “The students have brought great enthusiasm and worked tirelessly trying to overturn Michael’s conviction.”

Note: This post was originally published by the AUWCL Public Relations and Marketing department on the law school’s website.

Some Things Should Never Be Normal

A few weeks ago, we sent a second delegation of Clinic students to Artesia, New Mexico. There, they represented migrant women being held with their children in the Artesia Temporary Facility for Adults with Children. If you missed our earlier posts about this project, you can see them here and here.

 David Llanes, Natalie Richman, Prof. Shana Tabak, Lindsay Fullerton, Prof. Sunita Patel, Christa Elliot, Prof. Amanda Frost, Alia Al-Khatib
David Llanes, Natalie Richman, Prof. Shana Tabak, Lindsay Fullerton, Prof. Sunita Patel, Christa Elliot, Prof. Amanda Frost, Alia Al-Khatib

The following is a guest post from Alia Al-Khatib, a 3L in our Immigrant Justice Clinic who accompanied the second delegation to Artesia.

As a clinical law student, spending a week in Artesia, New Mexico was an invaluable experience.  While it was very difficult for me to navigate working within a crisis lawyering model, I was inspired by the dedication and passion of advocates working in the detention facility.  In Artesia, advocates and lawyers are working with great urgency to get women out of detention as soon as possible.  One of the women who I met was one of the earliest arrivals to the detention facility and had been there since July.  Her and her son’s mental and physical health had deteriorated noticeably during this four-month period.  She had lost a lot of weight and was experiencing stress headaches.  Her one-and-a-half year old son had a chronic ear infection and cold.  From the beginning, the advocates and lawyers working with AILA made it clear to volunteers that the main purpose of the project to get these women released to their loved ones who were living in the United States and to shut down the facility.

Artesia is so remote that it took us 14 hours to get there from DC, including the drive through the desert in the photo above.  Immigrants have a right to counsel in their immigration proceedings, but it is logistically difficult for them to access attorneys in such a remote location.
Artesia is so remote that it took us 14 hours to get there from DC, including the drive through the desert in the photo above. Immigrants have a right to counsel in their immigration proceedings, but it is logistically difficult for them to access attorneys in such a remote location.

During my week in Artesia, I represented two women in bond hearings.  For my second bond hearing, I represented a woman from Guatemala who was in detention with her three-year-old son.  We had met the day before as I prepared her for her bond hearing.  She had many questions about the process, and she was, understandably, anxious to leave the facility.  During the bond hearing, she was clearly very nervous.  While she was giving her testimony, her three-year-old son sat in a chair next to her.  In Artesia, all court appearances and credible fear interviews are conducted in this way.  The children are in the same room as their mothers are asked to recount horrifying experiences that caused them to leave their country and flee to United States.  While advocates check with the women if they want their children to be present for the credible fear interviews, the facility does not have any accommodations for young children to be taken care of while the women are meeting with lawyers or officials.  In the middle of my client’s testimony, her three-year-old son fell asleep in his chair and began to slowly slide down the chair.  She had to pick up her son and place him on her lap as she responded to a question that the judge had asked her.

Both the judge and the DHS attorney appeared via video conference, and neither of them seemed to blink an eye as this happened.  At this point, they must be used to the conditions of hearings in Artesia.  All of the women and children who have hearings on that day are brought in to the trailer that serves as the courtroom.  The video camera only shows the person appearing for her hearing with her attorney, but surely the judge and the DHS attorney hear children screaming or laughing in the background.  They must also see the drawing books and the crayons that are given to the children during bond hearings so they are distracted while their mother gives her testimony.  The lack of response to this mother picking up her son in the middle of giving her testimony in court, while not surprising at all to me, was very troubling.  They showed no concern for the mother or her sleeping child; they did not even pause as she picked him up and held him in her arms.  They treated this scene as if it were completely normal for a testifying witness to attend to her three-year-old child in the middle of answering the judge’s questions.  Conditions similar to those in Artesia should never be treated as normal or every day.  That was what I appreciated about advocates working in Artesia- they never ceased to be outraged.  Their sole goal was to shut down the facility, and they never treated these circumstances as if they were normal or justified.

At the end of the hearing, the mother learned that she had received a $4,500 bond.  I was nervous because the day before she mentioned she was worried about getting a high bond.  When I told her, her face lit up.  She said that her husband would probably be able to pay it.  I was very happy for her.  We discussed next steps briefly, and she carried her sleeping son out of the trailer to call her husband with the good news.

The candlelight vigil was held by Somos Un Pueblo Unido, ACLU-NM Regional Center for Border Rights, Detention Watch Network, the American Immigration Lawyers Association, NEA Southeast, and NM Conference of Catholic Bishops.  The vigil members were a mix of community members, community organizers, and attorneys.  The vigil was to end child incarceration, in particular for the mothers and children detained in Artesia who were to be transferred to a new facility in Dilley, Texas.
Students joined in a candlelight vigil held by Somos Un Pueblo Unido, ACLU-NM Regional Center for Border Rights, Detention Watch Network, the American Immigration Lawyers Association, NEA Southeast, and NM Conference of Catholic Bishops. The vigil members were a mix of community members, community organizers, and attorneys. The vigil was to end child incarceration, in particular for the mothers and children detained in Artesia who were to be transferred to a new facility in Dilley, Texas.

HR 5108 Codifies USPTO Law School Clinic Pilot Program

Originally posted on WCL Glushko-Samuelson IP Clinic:

uspto

H.R. 5108, the legislation to permanently establish the USPTO Law School Clinic Pilot Program, was passed by the Senate yesterday. The IP Clinic and clinic students were instrumental in early efforts to establish a student practice rule at the agency.

The bill will now go to the President for his signature. The bill, introduced in the House by Rep. Hakeem Jeffries of New York and Rep. Steve Chabot of Ohio, formally establishes the USPTO Law School Clinic Certification Program to allow students enrolled in a participating law school clinics to practice patent and trademark law at the agency under the guidance of a Law School Faculty Clinic Supervisor on a pro-bono basis for clients. It requires the USPTO Director to establish regulations and procedures for application to and participation in this program and makes all law schools accredited by the ABA eligible to participate.

The text of H.R.5108 and more information is on…

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You Gotta Fight For the Right to Break Digital Locks: IP Clinic Teams Up with Cinema Studies Professor, Higher Education Organizations in DMCA Rulemaking

WCL Clinic Blog:

From our IP Clinic’s blog.

Originally posted on WCL Glushko-Samuelson IP Clinic:

Guest post by student attorneys Sarah O’Connor and Mark Patrick

The Digital Millennium Copyright Act makes it illegal to break digital locks on copyrighted material, even when what you intend to do with the work is otherwise legal, such as using short clips from a motion picture in a class presentation. However, there is an out. Every three years the Copyright Office holds a proceeding to consider and grant limited exemptions for uses where users can show the law is creating a substantial burden on free expression or other valuable activities.

In each triennial proceeding, new petitions must be submitted on behalf of each party seeking exemptions. Petitions must make the case for what has been exempted in the past, in addition to what should be exempted in the present and future, keeping in mind new technological and pedagogical trends. Failure to submit these petitions every three years would result…

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Students Testify on Guardianship Bill

Recently, Henrissa Bassey and Raziya Brumfeld, both 3Ls in WCL’s Disability Rights Law Clinic, testified before the D.C. Council Committee on the Judiciary and Public Safety regarding Bill 20-0710, the Limitations Of Guardianship Amendment Act Of 2014. You can read the full text of the bill here.

Bassey, who herself will soon be appointed guardian for a brother with autism and intellectual disabilities in another jurisdiction, spoke in favor of the 3-5 year expiration period that the bill imposes on guardianships in the District. Under the bill, when a guardianship is set to expire, a court hearing would be required to renew it for another term. If the individual has developed additional decision making capacity since the guardianship was put in place, the court could determine that guardianship is no longer an appropriate arrangement. Bassey drew on her personal experience, noting that her brother has been working to learn basic life skills like reading, counting money, and attending social functions, and that her family expects that he will continue to improve to the point where he may be able to live more independently. She said, “As I reflect on my brother’s life and progress, I know that I would support a sunset provision on my future guardianship over [him].”

In her testimony, Brumfeld voiced concerns that the District’s current guardianship practices unnecessarily limit the autonomy of many people with disabilities. Noting that judges often appoint guardians “for people who have the capacity to make their own decisions, but simply need a little help or support,” Brumfeld advocated a requirement that petitioners for guardianship make a case for why supported decision making for the individual, as opposed to guardianship, would not be appropriate. Supported decision making is a practice whereby an individual’s support network of friends, family, and others assist that individual with making and carrying out decisions, instead of simply making those decisions on that person’s behalf. The current law encourages guardians to consider an individual’s wishes when making decisions, Brumfeld said, but by adding an affirmative requirement that assisted decision making be considered as a preferred alternative to guardianship “we can insure that guardianship is limited to those instances when it is completely necessary.”