Dismantling the School-To-Prison Pipeline
Ken’s Comments:
I have written extensively on this. Prison is NO place for kids!
Excerpts:
Until fairly recently, mass incarceration was a fringe subject that no one gave two hoots about. Nowadays every vote grubbing statesman, media rent-a-quote and dinner party bore has an opinion on reforming the American criminal justice system. Yet in all of this brouhaha about the subject matter, you don’t hear much about the school-to-prison pipeline and its links to mass incarceration. Little wonder. Institutional racism is a depressing, and reoccurring, subject in modern western society. But, in the right here and now of the problem, how do we, as parents, teachers, advocates and citizens, dismantle the school-to-prison pipeline?
The school-to-prison pipeline is the policy of excluding kids from education and referring them to the juvenile and criminal justice system. And it’s a problem, like mass incarceration, that is very much in the public domain already. Not a week goes by without a story in the press about it. The 7-year old in Maryland, suspended for shaping his Pop-Tart into a gun; the senior in Michigan expelled for forgetting the lock knife in her schoolbag, the teenagers in North Carolina, charged with “disorderly conduct” for an end of year water balloon fight; police officers Tasering and beating on students for “acting out”; unruly and corrupt “school resource officers” (security guards), roughing up and shaking down pupils.
First and foremost, racism is the dominant, and undeniable, theme at play in the school-to-prison pipeline. This is down to the fact, the absolute fact, that this byproduct of zero tolerance education affects African-American schoolchildren more than any other pupil demographic. Some commentators, and educationalists, have put forward the case for segregated classrooms to safeguard minorities, and prevent instances of racially motivated mass exclusion. The argument is simple: teachers of color would be less inclined to fail pupils of color. Noble, but flawed. We don’t practice segregation in a multicultural society, and, moreover, we should not adopt it as a policy to educate our children in a multicultural society. Children benefit from diversity at school. So does society at large.
Another malfunctioning part in the pipeline: our paper tiger teachers. Over worked. Stressed out. Underpaid. Undervalued. The lot of a teacher in the public sector has never been a happy one. And, speaking as someone who was once punched in the square root of the face by a Math teacher, this is something that I know about first hand. However, back then, thirty years ago, teaching was still seen as a rewarding profession for the middling classes to go into. Not any more. If you want to make dough in the 21st century, you don’t don a mortarboard to become Mr. Chips; you graduate to become a property developer, social media entrepreneur, or reality TV star. The solution is simple. Education is due a New Deal. And fresh graduates going into teaching need to be paid a living wage, one that is commensurate with inflation.
That’s not the end of it for the teacher. The world is changing all the time and teachers need training to handle unruly students with a variety of behavioral disorders and physical disabilities. Some, like that old Math teacher from Holland Park School in London, lack the deescalating techniques to control a classroom of foul mouthed adolescents, and soon lose confidence in their own ability to communicate the subject matter. One idea being touted round to restore discipline in the classroom is to recruit former soldiers as teachers. This is the kind of solution that works in entertaining B-movies like “The Substitute,” (and its innumerable sequels on Netflix) but not so much in real life. We need Mr. Chips like figures, not two-fisted mercenaries (unless they are fully qualified).
Even still, teachers complain about striking the balance between lofty educational ideals and maintaining order. How do you restore power and authority to the teacher in the modern school setting without the presence of cops and security guards? One outlandish suggestion is to revive the administration of corporal punishment and make school just like it was in “the good old days”. Caning was popular in English schools until it was banned in the mid 1970s (its practice in the fee paying private sector, however, lasted well into the 1980s). Fear and the threat of “six of the best” from a teacher, usually a stern faced priest, always brought about immediate discipline, not to mention disfigurement and lasting emotional damage. Maybe it’s not such a good restorative practice.
So, how do we dismantle the ticking bomb of the school-to-prison pipeline? By recognizing its component parts and diffusing it long before it goes off. The social cost, and collateral damage, in real terms, in the long run, is far too high for a modern western society. Still, at least it gives the bourgeois talking heads and crashing bores of this world something to talk about on Sunday afternoons round the grill. Suffer the little children, when will we stupid adults learn to do something about it? Like mass incarceration, we only ever do something when it’s far too late to do anything. It’s the tragedy of another lesson unlearned for the adult world.
Oregon Prison Officials Must Provide Post-release Disability Care
Ken’s Comments:
A wonderful [and most unusual] development in a world where too many judges don’t give a S@%# whether inmates succeed in reentry!
Excerpts from the Article:
An Oregon federal district court issued a preliminary injunction enjoining prison officials from releasing a disabled prisoner without assistance. Oregon state prisoner Steven Fox was an able-bodied person when he entered prison in 2010. Due to the neglect of prison officials, however, he sustained injuries that severely limited his mobility in July 2015. As a result he now has only limited use of his right leg, is unable to move his right arm and has only 10-15 percent use of his left arm.
Fox cannot move without a wheelchair attendant. In prison, helpers assisted him in moving, transfers and other tasks such as putting on his socks. It took him 15 minutes to get out of bed without assistance. Fox occasionally fell while transferring to and from his wheelchair, and could not get up by himself. He was also unable to obtain or prepare food without help. In short, he was essentially helpless and completely dependent upon others.
Fox had been confined to a community hospital or an Oregon Department of Corrections (ODOC) infirmary since July 2015. At the time of his August 12, 2016 release from prison, he was housed in a prison infirmary.
Dr. Michael Wilson recommended that Fox “have assistance with daily activities such as getting dressed and shopping for groceries.” Just prior to his release, however, prison officials revealed they intended to release him to a local motel with limited assistance, and virtually none after his initial check-in.
Fox moved for a preliminary injunction in a federal civil suit, seeking to enjoin prison officials from releasing him to a motel that was not compliant with the Americans with Disabilities Act (ADA), and without anyone to assist him with basic daily living activities.
The district court granted the injunction on August 11, 2016, observing that “Dr. Wilson’s opinion, combined with Fox’s declaration, demonstrates Fox requires at least some continued supervision or assistance at this time.”
“The duty to provide adequate medical care does not necessarily terminate once the inmate walks through the prison gate,” the court observed. “Depending on the particular circumstances, a former inmate’s inability to secure medical care ‘on his own behalf’ may extend the state’s duty to provide care beyond the period of confinement,” it added, citing Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999).
The district court agreed that “there is a grave risk of imminent harm and Fox has demonstrated a reasonable likelihood of success on his claim that, absent an injunction, defendants will violate his constitutional rights.”
Although “this sort of affirmative action on a prison is somewhat unusual,” the court ultimately ordered prison officials to assist Fox following his release.
“While requiring ODOC to check in on Fox could in fact save Fox’s life,” the district court found that “it will not be an enormous burden on ODOC.” Therefore, it ordered prison officials “to check in on Fox two times per day” for two weeks. “One contact may be by a phone call to Fox’s motel. One contact must be an in-person check at the hotel,” the order specified. See: Fox v. Peters, U.S.D.C. (D. Ore.), Case No. 6:16-cv-01602-MC; 2016 U.S. Dist. LEXIS 107100.
Fox’s attorney voluntarily dismissed the case in September 2016, stating, “Because the need for the Temporary Restraining Order … is now moot, there is no need to proceed to judgment on the merits of the claims.” Fox was represented by Portland attorney Lynn S. Walsh.
New law allows New Yorkers with decade-old convictions to seal criminal records – Good News! kra
Ken’s Comments:
A small step, but in the right direction. ALL states should do this, but with expanded eligibility.
Excerpts:
People with old convictions who can prove themselves reformed will have a chance at having their cases sealed, under a new state law. The statute gives candidates with eligible convictions — up to one felony and no more than two crimes total — that are at least a decade old the ability to apply for permanent sealing.
Sex offenders and felons whose acts were considered violent won’t be approved for consideration under the law that kicks in Oct. 7. District attorneys have 45 days to notify the court whether they expect to challenge a sealing request. The decision on whether to seal is ultimately at the discretion of the sentencing judge, who can consider the candidate’s character and even order a hearing.
Prosecutors in Manhattan and Brooklyn have assigned teams to field inquiries and sort through what is expected to be a surge of applications. Both offices say they are supportive of the progressive measure. A spokeswoman for Manhattan DA Cyrus Vance Jr. said her office does “not anticipate having to challenge the sealings, except on rare occasions.”
“An old conviction for a minor or a nonviolent offense should not hold people back from moving on with their lives,” added acting Brooklyn DA Eric Gonzalez.
Richman said it’s “an advancement for our state to finally recognize that past errors should not confine people to the fringes of society.”
Convictions that are sealed under the new statute should be impossible to find for any private employer, although the NYPD will still have access to the sealed data.
“Really the best way for a New Yorker to have a fair chance at finding a job is for an employer to not know about that conviction,” Ader said.
“I think it’s a tremendous opportunity for people who have paid their dues and have been burdened with the scarlet letter for a decade or more to relieve themselves of a past mistake,” Saland said.
Report: Many low-income Delawareans lack access to legal counsel – With Letter to the Editor
Ken’s Comments:
Don’t I know the truth of this story! I get the calls every day.
I love the comment by the Chief Justice: In a statement, Chief Justice Strine praised the subcommittees’ work as “a blueprint for opening up the avenues of justice.” It is more like “a blueprint for NOTHING IS GOING TO CHANGE”! WHO do they think they are fooling? You.
Well, pardon my cynicism, but I have seen thousands of recommendations by hundreds of “committees”, “task forces”, and “commissions” go NOWHERE!
Excerpts:
At least 140,000 Delaware residents are eligible for free legal aid. But the three main nonprofits in the state that focus on legal assistance in civil cases can handle only a fraction of that — potentially leaving more than 120,000 people without counsel, officials say.
A report released Monday by three subgroups of a state committee focused on improving the court system highlights that imbalance and offers recommendations for better assisting individuals involved in civil cases. The subcommittees are part of the Delaware Access to Justice Commission, an initiative started by the courts in 2014 to make the state’s courts fairer in both civil and criminal justice.
“More than 50 million Americans technically qualify for federally funded legal assistance, but over half of those who actually seek such assistance are turned away because available funding is so low,” the U.S. Department of Justice, quoted in Monday’s report, noted in 2016.
“Similarly, for those living just above the qualifying line, even basic legal needs are beyond reach. There continues to be a substantial ‘justice gap’ between truly meeting the needs of low- and moderate-income people and the resources available for civil legal services.”
According to the report, low-income Americans obtained lawyers for legal cases less than 20 percent of the time — often placing them at a disadvantage.
In many instances, people who cannot obtain counsel are forced to represent themselves, particularly when they are defendants. The report notes a majority of litigants in cases involving custody, divorce and protection from abuse did not have lawyers.
“Based on 2014 data from Delaware’s Court of Common Pleas, plaintiffs have attorneys in 85 percent of the cases while defendants have attorneys in only 11 percent of the cases,” the findings state. “This asymmetry creates an imbalance of power between the litigants.
“There are clear societal benefits from the investment in an effective legal aid system,” the report says. “Legal services for victims reduce costs due to medical care for physical injuries and mental health care, lost productivity, and lifetime earnings. Effective legal assistance to victims can result in savings to insurance companies, hospitals, law enforcement and the criminal justice system, domestic violence shelters and homelessness systems.”
In a statement, Chief Justice Strine praised the subcommittees’ work as “a blueprint for opening up the avenues of justice.”
Read the Whole Story:
Report: Many low-income Delawareans lack access to legal counsel
Letter to the Editor – The Poor get Poorer – 9/20/17
I see that the Delaware Access to Justice Commission has issued its report concerning access to legal help for the poor. Don’t I know the truth about the lack of legal help! I get those phone calls every day from folks who cannot afford an attorney.
The problem is real, it is serious, and it is costing society – you – a bundle. Not only would access to counsel save many costs – as the report points out – but the anger, frustration, and resentful feeling that “they system” has let them down gnaws at a large segment of society. One big improvement would be for the Bar (the Chief Justice oversees the Bar) to require that every lawyer provide x hours of pro bono, or free, legal service per year, as some states do, including our neighbor, Maryland.
I am struck by the remarks by the Chief Justice: “In a statement, Chief Justice Strine praised the subcommittees’ work as “a blueprint for opening up the avenues of justice.” It is more like “a blueprint for NOTHING IS GOING TO CHANGE”! Pardon my cynicism, but I have seen thousands of recommendations by hundreds of “committees”, “task forces”, and “commissions” go NOWHERE! WHO do they think they are fooling? You.
Ken Abraham, Deputy Attorney General 1974-1979, founder of Citizens for Criminal JUSTICE, Dover, DE 302-423-4067
………..
I get lots of letters published, and ghost write for others. The keys to getting your Letter published are:
1. Keep it to 250 words or fewer.
2. Do not make it about “poor little old me”. Describe the problem as one which not only affects the individual, but is a senseless or ineffective measure, policy, or law which also harms communities and society. For example, with reentry, the obstacles make it unnecessarily difficult for the individual, but also harm society by making it hard to become productive, spending money and paying taxes in the community, and they cause increased recidivism = increased crime.
3. Speak from your heart.
4. Google any facts you are not sure about.
5. Do not name-call.
Do what works: Write that Letter!
…………
Letter to Editor – sign name, town, state, and your phone number (they often call to verify that you sent it), and “Member of Citizens for Criminal JUSTICE” if you like – shows you are part of a large group.
Send the email to yourself, and put on the “bcc” bar the email addresses for Letters to the Editor for the top ten newspapers in your state and several national ones – The New York Times, Chicago Tribune, U S A Today (google the Letter to Editor email addresses). Any questions, CALL me at 302-423-4067!
Need a Letter on some criminal justice issue and not a great letter writer? NO EXCUSE! Email me a rough draft and call me and I’ll polish it up! kenabraham3138@gmail.com .
ANY QUESTIONS, CALL ME AT 302-423-4067.
Private prison firm faces $44K fine for inmate count issues
Ken’s Comments:
Who do you think is paying for all of this? YOU are! The judges, the staffs, the attorneys for the prisons, etc. …YOU are paying for it. And you are paying a more costly price in the anger and resentment of the victims of such abuse and their families. The millions in fines every year will not deter CoreCivic; it is a drop in the bucket compared to their billions in blood stained profits!
Excerpts:
Tennessee corrections officials have fined a private prison company $43,750 because of problems it had counting inmates at a jail it operates, according to state documents.The state Department of Correction levied the penalty against CoreCivic in May over breach of contract due to the woes at Trousdale Turner Correctional Center, a medium-security lockup in Hartsville that holds up to 2,552 male inmates, a letter released in a public records request shows.
The letter says the counting problems were noted there in January and persisted into April. They were among 66 non-compliance issues found at the facility in a state audit, four of which were deemed critical. A June follow-up found the issues were addressed. According to state reports, officers weren’t counting correctly; inmates weren’t in the correct cells; and, in most cases, only one worker was counting inmates without another standing watch. The reports also said it was taking too long for officers to count and inmates were allowed to move around during count time.
The sections of the documents about counting are largely redacted to protect critical security procedures, said Department of Correction spokeswoman Alison Randgaard. One section says Trousdale staffers “knew what to do” but “just were not doing it correctly.”
Alex Friedmann, managing editor of the prisoner-rights publication Prison Legal News, said state corrections officials rarely fine private prison companies, so when fines are imposed, it’s usually for very serious or repeated contractual violations. “Count is one of the most important functions that prison officials perform — it verifies the number of inmates and detects escapes,” Friedmann said. “The failure to adequately perform one of the most basic security functions of a correctional facility speaks volumes about CCA’s ability to operate TTCC.”
The facility reached its capacity in September 2016 and housed 2,524 inmates on average in August, state records show
PROSECUTORS MUST SEEK JUSTICE, NOT MERELY CONVICTIONS -Duh!! kra
Ken’s Comments:
How many hundreds of times have I said this?! Prosecutors, with their immense powers, do more harm than good … stacking charges, coercing plea deals, charging those who need treatment, not prison [can you say “addict” or “mentally ill”?!]… and downright corrupting justice by outrageous misconduct of all sorts.
Excerpts:
As advocates of justice, prosecutors play a unique and powerful role in our justice system. Yet too often, prosecutors fall prey to a pervasive “convict at all costs” culture, and neglect their ethical duty to protect the innocent and guard the rights of the accused. The recent actions of Santa Clara District Attorney Dolores Carr demonstrate this troubling culture. Carr has directed her office to boycott the courtroom of Superior Court Judge Andrea Bryan, who barred the retrial of a case overturned due to Santa Clara prosecutor Troy Benson’s prosecutorial misconduct. The finding of misconduct against Troy Benson presents an opportunity for Santa Clara prosecutor’s to examine what may have led to Benson’s misconduct, and take steps to ensure abuses of power do not take place again in the future. However, instead of addressing her colleague’s misconduct, which Judge Bryan called “grossly shocking,” Carr is calling for open criticism of the judge responsible for upholding her constitutional obligation to reverse convictions prejudiced by egregious prosecutorial misconduct.
Prosecutors have sole responsibility for deciding whether to file charges, what charges to bring, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. These varied and unique duties render prosecutors the most powerful actors in our criminal justice system. Yet despite their power, prosecutors are rarely held accountable for violating their ethical obligations. This lack of accountability fosters a problematic culture that plagues prosecutors’ offices around the country and contributes to wrongful convictions.
Prosecutors’ obligation to ensure public safety and convict the guilty must coexist with the overriding goal of justice. The Justice Project’s policy review, Improving Prosecutorial Accountability outlines suggested reforms that can help create a culture that prioritizes fairness and accuracy over high conviction rates. For example, prosecutor’s offices should establish training programs and official office policies on the prosecutor’s duty to disclose evidence to the defense and the proper use of prosecutorial discretion – a move that The Department of Justice recently took in response to the Ted Stevens case. Moreover, prosecutors who intentionally abuse their power to secure a wrongful conviction must be investigated and disciplined for their actions. Jurisdictions should also establish prosecutorial review boards with the power to investigate and sanction prosecutors who perpetrate acts of misconduct as a means of recognizing the unique power prosecutors hold. Implementing these reforms will foster a more ethical culture in prosecutors’ offices and increase transparency in prosecutorial decision-making.
Read the Whole Story:
Former educator found innocent of sex charges having difficulty getting life back
Ken’s Comments:
No surprise here! People are so into “sex offender hysteria” … it is a MAJOR problem. You will learn more about it when my friend Margaret, with National Advocates for Rational Sex Offender Laws [NARSOL] speaks at our Rally on Oct. 7th.
Excerpts:
MILFORD — Roughly 10 1/2 months after being absolved of sex offense charges against him, a former assistant principal is still trying to regain his career. Edward “Scot” Husbands has appealed for the reinstatement of his Delaware Educator License after losing his job at Benjamin Banneker Elementary School in Milford following an arrest on June 23, 2015.
During a Delaware State Police investigation of allegations against him two years ago, Mr. Husbands, 45 years old at the time, was accused of improperly touching three girls ages 10 and 11. He was indicted by a Sussex County grand jury on Oct. 12, 2015. On Nov. 3, 2016, a jury returned a not guilty verdict on three charges of first-degree unlawful sexual contact against Mr. Husbands. Second-degree sexual abuse by a person in a position of trust, authority or supervision and offensive touching counts were dismissed during the trial.
Now, Mr. Husbands says he’s waiting for a decision by the Delaware Board of Education on his license, which he said could come by November but more likely December. He said his contract was not renewed by the Milford School District following his arrest two years ago, which was preceded by unpaid leave due to the charges. The DOE’s Professional Standards Board is reviewing the case after a hearing on Aug. 31, Sept. 1 and Sept. 5.
Minus an $83,559 annual salary he was making at the time of arrest, Mr. Husbands said he’s struggled to support his family financially in addition to losing his career passion as an educator. There’s no quantifying the emotional stress he’s experienced, Mr. Husbands said.
“(My employers) are great, they’re extremely understanding,” Mr. Husbands said. “They knew my story, they knew everything I’m going through and provided me an opportunity to work.”
You are encouraged to leave relevant comments but engaging in personal attacks, threats, online bullying or commercial spam will not be allowed. All comments should remain within the bounds of fair play and civility. (You can disagree with others courteously, without being disagreeable.) Feel free to express yourself but keep an open mind toward finding value in what others say. To report abuse or spam, click the X in the upper right corner of the comment box.
Former Milford educator found innocent of sex charges having difficulty getting life back
Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison – Children
Ken’s Comments:
As I have said: prison is no place for kids. Again, the prosecutor, the most powerful person in the system [and too often the most out of control!] makes the decision to prosecute a youngster as an adult.
Here too we see the failure, the futility, and the injustice of mandatory minimum sentencing.
Excerpts from the article:
In the United States, dozens of 13- and 14-year-old children have been sentenced to life imprisonment with no possibility of parole after being prosecuted as adults. While the United States Supreme Court recently declared in Roper v. Simmons that death by execution is unconstitutional for juveniles, young children continue to be sentenced to imprisonment until death with very little scrutiny or review. A study by the Equal Justice Initiative (EJI) has documented 73 cases where children 13 and 14 years of age have been condemned to death in prison. Almost all of these kids currently lack legal representation and in most of these cases the propriety and constitutionality of their extreme sentences have never been reviewed.
Most of the sentences imposed on these children were mandatory: the court could not give any consideration to the child’s age or life history. Some of the children were charged with crimes that do not involve homicide or even injury; many were convicted for offenses where older teenagers or adults were involved and primarily responsible for the crime; nearly two-thirds are children of color.
Over 2225 juveniles (age 17 or younger) in the United States have been sentenced to life imprisonment without parole. All of these cases raise important legal, penological, and moral issues. However, EJI believes that such a harsh sentence for the youngest offenders – children who are 13 and 14 – is cruel and unusual in violation of the Eighth Amendment to the United States Constitution. These children should be re-sentenced to parole-eligible sentences as soon as possible. Sentences of life imprisonment with no parole also violate international law and the Convention on the Rights of the Child, which has been ratified by every country in the world except the United States and Somalia.
EJI has launched a litigation campaign to challenge death in prison sentences imposed on young children. This report is intended to illuminate this cruel and unusual punishment inflicted on children, particularly for those who have been without legal help for so long that the procedural obstacles to winning relief in court will be formidable. Increased public awareness, coupled with informed activity by advocacy groups, will be necessary to reform policies that reflect a lack of perspective and hope for young children.
An Exit Interview With Richard Posner, Judicial Provocateur – A great judge leaves the Bench. Judges Do NOT Even Read Cases Filed by Inmates! . kra
Ken’s Comments:
The authors of the Constitution were brilliant. One key provision has been the lifetime appointment of Federal Judges. The wisdom of this was never more evident than during the Watergate Hearings (I watched every minute of it), when Nixon, under threat of being held accountable to the law, fired the special prosecutor, fired the head of the FBI, and others … but he could not fire judge John Sirica, who ordered that the infamous White House tapes be produced!
Federal judges, thus free from politics (once they are confirmed), are free to say what they want, and Judge Richard Posner was candid with his criticisms of the system and of individuals.
He said: “Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters”. I saw this very clearly in the tens of thousands of cases I reviewed from 2007 to 2012 [1,510 days in that isolation cell].
He also confirmed what I found out shortly after my release. I had suspected it was the case, so I checked it out, and it happens in many state and federal courts. I know because some law clerks told me: “In the Seventh Circuit, Judge Posner said, staff lawyers rather than judges assessed appeals from such litigants, and the court generally rubber-stamped the lawyers’ recommendations.” That is just outrageous; the judges aren’t even doing their jobs: they do not read cases filed by inmates.
Excerpts from the Article:
Judge Richard A. Posner, whose restless intellect, withering candor and superhuman output made him among the most provocative figures in American law in the last half-century, recently announced his retirement.
The move was abrupt, and I called him up to ask what had prompted it. “About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it.
For starters, as is his habit when his interest alights on a fresh topic, he wrote a book on the subject. Judge Posner blurts out books at a comic pace. “I realized, in the course of that, that I had really lost interest in the cases,” he said. “And then I started asking myself, what kind of person wants to have the same identical job for 35 years? And I decided 35 years is plenty. It’s too much. Why didn’t I quit 10 years ago? I’ve written 3,300-plus judicial opinions.”
He is 78 and had been a judge since 1981, when President Ronald Reagan appointed him to the United States Court of Appeals for the Seventh Circuit, in Chicago. Before that, he was a prominent law professor who was among the leading figures in the movement to analyze legal problems using economics. In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold, calculating conservative.
That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal. “The things I used to be interested in — economic issues in the law, for example — they don’t play a big role in the work of this court,” Judge Posner said. “Gradually, those interests sort of fell by the board.”
He wrote books about law and literature, sex and reason, the impeachment of President Bill Clinton, the 2000 election recount and, after the Sept. 11 attacks, national security. “Gradually, I lost interest or exhausted my interest,” he said. “So for the last 10 or 15 years, I’ve just been focused on the court.”
He called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”
I asked him about his critics, and he said they fell into two camps. Some, he said, simply have a different view of the proper role of the judge. “There is a very strong formalist tradition in the law,” he said, summarizing it as: “Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.” “A lot of the people who say that are sincere,” he said. “That’s their conception of law. That’s fine.”
He said he had less sympathy for the second camp. “There are others who are just, you know, reactionary beasts,” he said. “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.”
The immediate reason for his retirement was less abstract, he said. He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters.
“These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.” In the Seventh Circuit, Judge Posner said, staff lawyers rather than judges assessed appeals from such litigants, and the court generally rubber-stamped the lawyers’ recommendations.
Judge Posner offered to help. “I wanted to review all the staff attorney memos before they went to the panel of judges,” he said. “I’d sit down with the staff attorney, go over his memo. I’d make whatever editorial suggestions — or editorial commands — that I thought necessary. It would be good education for staff attorneys, and it would be very good” for the litigants without lawyers.
“I had the approval of the director of the staff attorney program,” Judge Posner said, “but the judges, my colleagues, all 11 of them, turned it down and refused to give me any significant role. I was very frustrated by that.”
His new book, he said, would have added to the tension: “If I were still on the court, it would be particularly awkward because, implicitly or explicitly, I’m criticizing the other judges.”
Judge Posner said he hoped to work with groups concerned with prisoners’ rights, with a law school clinic and with law firms, to bring attention and aid to people too poor to afford lawyers. In one of his final opinions, Judge Posner, writing for a three-judge panel, reinstated a lawsuit from a prisoner, Michael Davis, that had been dismissed on technical grounds. “Davis needs help — needs it bad — needs a lawyer desperately,” he wrote. On the phone, Judge Posner said that opinion was a rare victory. “The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” he said.
Judge rules in Chicago’s favor on sanctuary cities, grants nationwide injunction
Ken’s Comments:
Good news for “sanctuary cities”. Of course, if we has fair and sensible immigration laws and policies, this would not be necessary.
Excerpts from the Article:
In a ruling with national impact, a federal judge in Chicago on Friday blocked the Trump administration’s rules requiring so-called sanctuary cities to cooperate with immigration agents in order to get a public safety grant.
U.S. District Judge Harry Leinenweber wrote in his 41-page ruling that Chicago has shown a “likelihood of success” in its arguments that U.S. Attorney General Jeff Sessions exceeded his authority in imposing new standards governing Edward Byrne Memorial Justice Assistance Grants across the country. He also said Mayor Rahm Emanuel’s administration has shown the city could suffer “irreparable harm” in its relationship with the immigrant community if it were to comply with the U.S. Department of Justice’s new standards.
“Once such trust is lost, it cannot be repaired through an award of money damages, making it the type of harm that is especially hard to rectify” if he were to wait until the lawsuit is settled, Leinenweber wrote. The preliminary injunction granted by Leinenweber applies to districts nationwide.
The ruling comes a little over a month after the Emanuel administration filed suit against the Justice Department over its new requirements for sanctuary cities such as Chicago, that want federal funding, to give notice when immigrants in the country illegally are about to be released from custody and allow immigration agents access to local jails.
In oral arguments last month, lawyers for the city argued that keeping people longer than 48 hours is unconstitutional and that the move by Sessions represented a slippery slope that could lead to other strings on federal money tied to administration priorities.
Emanuel has been declaring himself a protector of immigrants in the U.S. illegally since before Trump was sworn in, appearing with U.S. Rep. Luis Gutierrez within days of Trump’s victory over Hillary Clinton to promise he would stand up for Chicago’s “values and principles as it relates to inclusion.” It’s a theme he has hammered in the months since, sponsoring various pro-immigrant measures in the City Council and declaring Chicago a city that will continue to welcome immigrants.
Assistant Attorney General Chad Readler countered there are already several strings attached to the Byrne grants, among them an Obama-administration requirement that cities don’t use the money on military-style weapons. Standards are also in place for the types of police body armor that can be purchased with the money, Readler said. If Chicago doesn’t like the rules, the city can simply opt not to apply for the money, Readler said.
Contact Us
Citizens for Criminal JUSTICE
430 Kings Hwy
Ste 414
Dover DE 19901
302.423.4067
