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“Once Imposed, Death Cannot Be Undone”: What Do You Think Now, Justice Scalia?

To the Honorable Antonin G. Scalia, Associate Justice of the Supreme Court of the United States:

Dear Sir:

Twenty-one years ago, your then-colleague, the late Justice Harry Blackmun, wrote what became a famous dissent to a Supreme Court decision not to review a Texas death penalty conviction. In it, Blackmun declared that he had become convinced “the death penalty experiment has failed” and said he considered capital punishment irretrievably unconstitutional.

The death penalty, he wrote, “remains fraught with arbitrariness, discrimination … and mistake. … From this day forward, I no longer shall tinker with the machinery of death.”

You mocked him for this stance in an opinion concurring with the majority, invoking as justification for capital punishment the horrific 1983 case of an 11-year-old girl who was raped then killed by having her panties stuffed down her throat. “How enviable a quiet death by lethal injection,” you wrote, “compared with that!”

A few months later, the very case you had referenced came before the court. Henry Lee McCollum, a mentally disabled man who was on death row in North Carolina after having been convicted of that rape and murder, applied to the court for a review of his case. You were part of the majority that rejected the request without comment.

The demagoguery of your response to Justice Blackmun is pretty standard for proponents of state-sanctioned death. Rather than contend with the many logical and irrefutable arguments against capital punishment, they use a brute-force appeal to emotion. Certain crimes, they say, are so awful, heinous, and vile that they cry out for the ultimate sanction. For you, Sabrina Buie’s rape and murder was one of those, a symbol of why we need the death penalty.

As you have doubtless heard, it now turns out McCollum was innocent of that crime. Last year, he and his also mentally disabled half-brother Leon Brown (who had been serving a life sentence) were exonerated by DNA evidence and set free. A few days ago, McCollum was pardoned by North Carolina Gov. Pat McCrory.

The case against him was never what you’d call ironclad. No physical evidence tied him to the crime. The centerpiece of the prosecution’s case was a confession McCollum, then a 19-year-old said to have the mentality of a child 10 years younger, gave with no lawyer present after five hours of questioning. “I had never been under this much pressure,” he told the News & Observer newspaper in a videotaped death row interview, “with a person hollering at me and threatening me … I just made up a false story so they could let me go home.”

But he didn’t go home for over 30 years. You and your colleagues had a chance to intervene in that injustice and chose not to. Not incidentally, the real culprit avoided accountability all that time.

The argument against the death penalty will never have the visceral, immediate emotionalism of the argument in favor. It does not satisfy that instinctive human need to make somebody pay — now! — when something bad has been done. Rather, it turns on quieter concerns, issues of inherent racial, class, geographic, and gender bias, issues of corner-cutting cops and ineffective counsel, and issues of irrevocability, the fact that, once imposed, death cannot be undone.

Those issues were easy for you to ignore in mocking Blackmun. They are always easy to ignore, right up until the moment they are not. This is one of those moments, sir, and it raises a simple and obvious question to which one would hope you feel honor bound to respond. In 1994, you used this case as a symbol of why we need the death penalty.

What do you think it symbolizes now?


By:Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, June 15, 2015

June 16, 2015 Posted by | Antonin Scalia, Death Penalty, SCOTUS | , , , , , | 1 Comment

“It Isn’t Rhetorical Or Hypothetical Anymore”: North Carolina’s Magistrates Now Can Legally Ignore Marriage Laws

Sometimes, in the course of writing columns about “religious freedom” laws like the one Gov. Mike Pence tried to pass in Indiana, I’ve mused about what would have happened if such laws had been in effect in 1967, back when the Supreme Court decided Loving v. Virginia. It was in Loving—decided 48 years ago today—that the court ruled it unconstitutional for states to prevent mixed-race marriages. I asked my question rhetorically, hypothetically, to try to highlight the absurdity of states where same-sex marriage is the law also passing laws to permit certain citizens to flout that law.

In North Carolina, it isn’t rhetorical or hypothetical anymore.

On Thursday, the state’s general assembly overrode an earlier gubernatorial veto of Senate Bill 2, meaning that civil magistrates can now refuse to perform not only same-sex marriages if they say that doing so violates their religious beliefs, but any union of which they disapprove on religious grounds.

The vote happened first thing in the morning. “They gaveled us right to order, and they didn’t allow any time for debate,” says assembly member Mary Price “Pricey” Harrison, Democrat of Greensboro. In North Carolina, an override is achieved with three-fifths of present and voting members. SB2 had originally passed the assembly by 67-43, which is 61 percent. Thursday’s vote was 69-4, or 62.7 percent. Harrison told me that some Republicans who might have voted against the bill weren’t present, and that a few members were off at their children’s high-school graduations.

Here’s the background. The state started out with a broad religious-freedom restoration bill of the sort becoming law in more conservative states. There was an outcry; after some wrangling, legislators settled on this bill, limited to magistrates. So this is a “compromise” bill. Remember that North Carolina’s legislature and its governor, Pat McCrory, are about as right-wing as any in the country—all those “Moral Monday” protests have come in response to radical actions the governor and legislature have taken on education, voting rights, the environment, and other matters.

So when legislators walked away from the broader religious-freedom act, they settled on SB2. Some compromise. “The legislation is in some ways even worse than Indiana’s,” Christopher Sgro, the executive director of Equality North Carolina, told me. “These are taxpayer-funded government employees.”

The law is really aimed at same-sexers, but of course legislators knew that they couldn’t single gay people out by name or category, because that would have been too obviously discriminatory. The only way to get around this was to write it more broadly, so the law says: “Every magistrate has the right to recuse from performing all lawful marriages under this Chapter based on sincerely held religious objection.”

Read that again. Recuse from “lawful marriages.” In other words, disobey the law. So, magistrates who still think the races shouldn’t mix can now take that brave stand with the weight of the law behind them. What about a Southern Baptist marrying a Jew? OK, it’s probably a stretch to think anyone would object to that. But what about a Southern Baptist marrying a Muslim? A Muslim marrying an atheist? A citizen marrying a non-citizen in what appears to the magistrate to be mostly a matter of helping the noncitizen gain permanent resident status? As a practical matter, experts think recusals will likely be limited to same-sex marriages, not that that makes this any better, but we’re about to find out what’s theoretical and what’s not.

This is shocking stuff. It’s pretty much at the level of George Wallace defying integration, albeit without the pulse-quickening, schoolhouse-door histrionics. Except this is arguably more extreme because here, North Carolina isn’t defying Washington, but itself. The state passed a ban on same-sex marriage back in 1996 and amended the state constitution in 2011 to emphasize the point. But then, a mostly religious coalition of North Carolinians brought suit, and last year a federal judge seated in North Carolina ruled the state’s ban unconstitutional. The governor, extremist though he is, knew enough law not to fight it, and indeed knew enough law to veto the magistrates’ bill when it came before him.

But now the legislature has spoken, or re-spoken, and overridden him. “It’s unconstitutional, and we all know it’s unconstitutional, and a court is going to throw it out,” Pricey Harrison told me. “It’s a heck of a way to run a legislature.”

The point needs making: Laws like this magistrates’ law and those Pence-style religious-freedom laws have turned the original intention of the federal Religious Freedom Restoration Act of 1993 completely on its head. That law was meant to protect the religious rights of minorities. It emanated from a lawsuit brought by two Native American men who took peyote, they claimed, as a religious rite. The Supreme Court backed them, and then President Clinton signed the RFRA. Protecting minorities from the tyranny of the majority has a long history in this country, back to the famous Federalist No. 10, and in fact the concept goes back to ancient Greece. But now, the majority (or near-majority, depending on which poll you believe) in North Carolina that opposes same-sex marriage can bully the minority.

Now, imagine if these religious-conscience laws had existed in 1967. How long would it have taken for interracial marriage to become the accepted norm in the South? As it happens, we have a partial answer to this question in the form of a story that emanates, again, from North Carolina. In 1976, Carol Ann and Thomas Person, she white and he black, walked into their local courthouse to get their marriage license. As she recently told the story in a column in the Raleigh News & Observer, the magistrate said no. A second magistrate on duty said the same thing, and one of them “took out a Bible and began to lecture us about their religious views and why Thomas and I should not be together.” This was nearly a full decade after Loving.

A court ruled against those two magistrates, and the Persons were soon married. Presumably, a court will toss this magistrates’ law, too. But who’ll be denied a license in the meantime? And what constitutes religious freedom, and what is simply bigotry?


By: Michael Tomasky, The Daily Beast, June 12, 2015

June 15, 2015 Posted by | Bigotry, Discrimination, Marriage Equality, North Carolina | , , , , , | 2 Comments

“Undue Burdens”: Voter ID Laws Are Costing Taxpayers Millions

One federal judge has allowed a voter ID law to take effect in Wisconsin. Another is now contemplating whether to do the same in Texas. Defenders of these laws, which exist in some form in 34 states, insist that requiring people to show government-issued identification at the polls will reduce fraud—and that it will do so without imposing unfair burdens or discouraging people from voting. In North Carolina, for example, Republican Governor Pat McCrory wrote an op-ed boasting that the measures fight fraud “at no cost” to voters.

It’s not surprising that McCrory and like-minded conservatives make such arguments. The Supreme Court under Chief Justice John Roberts has steadily weakened the Voting Rights Act and related legislation, which for generations federal officials used to make sure minority voters had equal voice in the political process. But in 2008, when the Court approved Voter ID laws, the Court left open the possibility of new challenges if plaintiffs can demonstrate the laws impose a burden on would-be voters.

There are now good reasons to think the laws do exactly that.

One reason is a report, published over the summer, from Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice. Researchers there complied published articles and legal testimony, in order to calculate the cost of of obtaining a government-issued identification. They included everything from the cost of waiting to the cost of traveling and obtaining documentation. Their conclusion? The costs can range anywhere from $75 to $400 per person. The study is not a comprehensive, since it examines evidence from just three states— Texas, Pennsylvania and South Carolina, which had its law blocked by the U.S. Justice Department but upheld by a District Court. But as many as 11 percent of voters don’t have a photo ID, according to the Brennan Center, and the study illustrates the challenge these people—many of them very poor—would face trying to get new identification documents. “The more it can be shown that is a substantial financial cost, the clearer it is that these laws are unconstitutional,” said Richard Sobel, author of the study.

Of course, some people would face higher costs than others. According to the study, people who move from another state can have a particularly hard time, because they’ll have trouble tracking down—and then paying for—the documentation they’ll need to get an identification card. Many states require that people present birth certificates in order to get Voter ID cards, but in at least two states, South Carolina and North Carolina, people who want a new birth certificate must present some other form of government identification. In other words, somebody would need a photo ID in order to obtain a voter ID.

Another group that can face extra costs and difficulty getting ID cards is women—specifically, women who have changed their names after marriage. A study by the Brennan Center from 2006 showed that just 48 percent of women with access to a birth certificate have access to identification with their legal name. “It’s clear the costs are much much greater largely because we change our names,” Elisabeth Macnamara, president of the League of Women Voters, told me. The League of Women Voters in Wisconsin has challenged Wisconsin’s voter ID law, partly on this basis. “We are seeing courts considering the Photo ID and see how much it takes to get one.”

A separate issue is the hassle people face when they try to get Voter ID cards. “We’ve experienced people being treated differently depending which DMV they go to or which examiner they talk to as to whether which document is sufficient,” Bob Hall, executive director of Democracy North Carolina, said in an interview. These difficulties should strengthen legal challenges to the requirement, he said: “It does bolster the argument that it amounts to a poll tax.”

Individual voters aren’t the only ones who face extra costs because of Voter ID laws. State governments’ do, too. The report from Harvard’s Houston Center showed the laws could cost Pennsylvania between $15.75 million and $47.26 million; South Carolina’s law would cost the state between $5.9 million and $17.70 million; and in Texas, could see the costs for its law go between $26.07 million and $78.22 million. “This is a huge amount of money to get a free ID, especially when the right to vote is a right that should be exercised freely and these resources could be used to getting people out to vote,” Sobel said.


By: Eric Garcia, The New Republic, October 3, 2014

October 4, 2014 Posted by | Conservatives, Voter ID, Voting Rights | , , , , , , , | Leave a comment

“Gaining Even More Traction”: GOP-Backed Voting Laws Target And Hurt Young Minority Voters

A new report released by the Advancement Project  highlights the numerous ways “young voters of color” are affected by restrictive voting laws that have been adopted by Republicans in several states across the nation.

The millennial generation, which is now between 18 and 29 years of age, is significantly more racially diverse than prior generations. Thus, the report explains, laws that suppress the youth vote also suppress voters of color. Restrictive laws affect particular demographics – in this case, young African-American and Latino voters – in different ways; some produce abnormally long lines on which voters must wait just to vote, while others implement barriers to actually getting to the polls.

On Election Day 2012, polling places in Florida counties with especially high numbers of minority youth voters closed on average 86 minutes after the 7 p.m. closing time, as a result of long lines. The obvious danger is that this will discourage young voters from voting. Others may “not be able to wait many hours to vote in future elections.”

A similar situation also occurred in Pennsylvania during the 2008 presidential election. Though local election officials petitioned for a larger polling space to cover the Lincoln University – a historically black university – district, the state’s Chester County Board of Elections denied the request, forcing voters to endure 6- to 8-hour wait times in the original “inadequately sized polling location.”

Also in Pennsylvania, and other states such as Texas, strict photo ID requirements directly affect specific groups’ ability to vote. A survey included in the report compares the disproportionately implemented voter ID requirements in both states to states without such laws. In states without voter ID laws, 65.5 percent of young black voters and 55.3 percent of young Latino voters were asked to present photo identification – a significantly greater share than the 42.8 percent of young white voters asked to present the same form of ID. In states with voter ID laws, however, 84.3 percent of young white voters were asked to produce specific photo ID, as opposed to 81.8 percent of young Latino voters asked to do the same.

An even greater 94.3 percent of young black voters were asked to present ID.

Strict photo ID laws – which typically require a voter to present a state-issued driver’s license or non-driver ID – account for why 17.3 percent of young black voters and 8.1 percent of young Latino voters could not vote in the 2012 presidential election. Fewer than 5 percent of young white voters were not able to vote for the same reason.

The measure is especially effective because many young voters in general don’t have a driver’s license. Even those who do, but attend an out-of-state college, do not have a state-issued driver’s license, and obtaining a standard state-issued photo ID usually requires a birth certificate – an obstacle that makes it more difficult for young voters. Furthermore, a larger percentage of young white voters have different forms of ID than young black and Latino voters. The report also mentions that several states – including Texas, North Carolina, Wisconsin, Kansas and Pennsylvania, among others – have even attempted to ban student photo IDs as voter identification.

In North Carolina, however, specific photo ID requirements are not the sole legislation hurting young minority voters; in August 2013, Governor Pat McCrory signed into law a ban on same-day voter registration during early voting – the law also decreases the early voting period by a week. Among other provisions, the law also eliminates pre-registration for 16- and 17-year-olds and a state mandate for voter registration in high schools. In October, a Republican precinct chair from Buncombe County, North Carolina, Don Yelton, admitted that the legislation hindered African-Americans’ and college students’ ability to vote.

According to Yelton, both demographics were targeted because they tend to vote Democratic.

These types of restrictive laws are only gaining more traction since June, when the Supreme Court struck down a crucial provision of the Voting Rights Act that required specific states known for passing discriminatory voting laws to first get “pre-clearance” from the federal government in order to change their voting laws.

The Advancement Project warns that “attacks on young voters” are “ongoing” and “threatening the voting rights of many across the country for future elections.”

The report also recommends “policy-makers and election officials…concentrate on positive measures that would help alleviate the woefully low percentage of voter participation rates seen…especially among young people, who are our future.” Besides eliminating laws that implement strict ID requirements, ban same-day voter registration and shorten early voting periods, the Advancement Project also suggests nationwide implementation of online voter registration, “uniform standards” for voting machines and poll workers, and institutionalizing voter registration.

Lastly, the report adds: “Congress must act immediately to update the Voting Rights Act.”

The problem, however, is not that politicians are unaware of how to increase voter turnout, but that there are many lawmakers who support these restrictive laws because they benefit their party.


By: Elissa Gomez, Featured Post, The National Memo, November 19, 2013

November 21, 2013 Posted by | Democracy, Voting Rights | , , , , , , , | Leave a comment

“In The Name Of Creating Jobs”: Corporations Are Hijacking Government With GOP Help And At Taxpayer Expense

After being swept into statehouses in the red wave of 2010, Republican Govs. Scott Walker, John Kasich and Terry Branstad each presided over the replacement of a state agency responsible for economic development with a less public, more private alternative. Arizona’s Jan Brewer did the same in 2010 after replacing Janet Napolitano, who’d been tapped for Obama’s Cabinet.  Walker’s Wisconsin, Kasich’s Ohio, Branstad’s Iowa and Brewer’s Arizona were only the latest to institute a “public-private partnership” approach to development: States including Indiana, Florida, Rhode Island, Michigan and Texas had done the same years earlier. Now North Carolina’s Pat McCrory, who entered the governor’s mansion in January, aims to do the same. A new report from a progressive group warns that means good news for the wealthy and politically connected, but bad news for just about everyone else.

“Privatization augurs against transparency …” Good Jobs First executive director Greg LeRoy told Salon. LeRoy is a co-author of the new report “Creating Scandals Instead of Jobs: The Failures of Privatized State Economic Development,” which his group released Wednesday afternoon. Based on recent years’ scandals and controversies in several states, the authors conclude that “the privatization of economic development agency functions is an inherently corrupting action that states should avoid or repeal.” They argue the record shows that “privatization was not a panacea,” but instead fostered misuse of taxes; excessive bonuses; questionable subsidies; conflicts of interest; specious impact claims; and “resistance to accountability.” Goods Jobs First funders include unions and foundations.

A spokesperson for Gov. Kasich emailed Salon a one-sentence take on the report: “We don’t pay much attention to politically motivated opponents whose mission is to combat job creation.”

Kasich promised as a candidate to substitute a new entity, led by “a successful, experienced business leader,” for the existing Ohio Department of Development. The result, JobsOhio, features prominently in the GJF report. The authors note that its board included some of Kasich’s “major campaign contributors and executives from companies that were recipients of large state development subsidies.” They write that JobsOhio “received a large transfer of state monies about which the legislature was not informed, intermingled public and private monies, refused to name its private donors, and then won legal exemption (advocated by Gov. Kasich) from review of its finances by the state auditor.”

The authors also fault the Arizona Commerce Authority, whose first head reaped a privately paid $60,000 bonus and resigned after one year; and the Wisconsin Economic Development Corp., which they charge has been “racked by scandals and high-level staff instability.” They cite accusations against WEDC including spending millions in federal funds “without legal authority”; failing to “track past-due loans”; and having “hired an executive who owed the state a large amount of back taxes.” LeRoy told reporters on a Wednesday conference call that, of the four newest public-private partnerships, Iowa’s was the only one to so far avoid significant scandal.

The report also slammed some of those four entities’ predecessors, including the Indiana Economic Development Corp. – GJF noted “a state audit found that more than 40 percent of the jobs promised by companies described by IEDC as ‘economic successes’ had never materialized” – and Enterprise Florida Inc.: while “more than $20 million in subsidies has gone to EFI board member companies,” in 2011 the Orlando Sentinel “reported that since 1995 only one-third of 224,000 promised jobs materialized.”

Gov. Scott’s office referred an inquiry to Enterprise Florida Inc., whose strategic communications director emailed that the group’s “efforts have resulted in an increase of competitive jobs projects established, private-sector jobs created and capital investment.” He noted that EFI “has received a clean opinion on its financial statements as conducted by its independent auditors and presented to EFI’s Board of Directors.” The offices of Govs. Walker, Brewer and Pence did not immediately respond to Wednesday evening inquiries.

“If we don’t know how the money’s spent, if we don’t get accurate assessments of the outcomes that we accept from our economic development subsidies or support, then there’s no way for us to evaluate the job they’re doing,” Donald Cohen, who leads the foundation- and labor-backed privatization watchdog In the Public Interest, told reporters on Wednesday’s call. “It’s fundamental to being able to manage our resources.” Cohen added, “When we’re talking about giving away the power and authority to give away public dollars, to make public decisions, then it is all the more important that public control be established in the strongest possible way.”

By “mingling private money or having board seats for sale,” LeRoy told reporters, public-private partnerships are “giving undue influence to a tiny share of mostly large companies that can afford to pay and play, potentially to the detriment of the focus of the entity.”

“You want people who are covered by ethics and disclosure and sunshine laws and oversight,” said LeRoy. “We know that government agencies aren’t perfect, but they by far are more accountable.” He also argued that public sector collective bargaining – which came under high-profile attack by Walker and Kasich – was also a check against abuse, because it “helps shield whistle-blowers and protect taxpayers.”

While GJF has proposed various safeguards for public-private economic development groups, it emphasized that its first choice would be for states to simply return their functions to fully public departments. “The economy is soft right now – we need to focus on the basics,” said LeRoy, rather than “tweaking the rules of a captive entity that co-mingles public and private money to get into all of these sort of gray areas.”


By: Josh Eidelson, Salon, October 24, 2013

October 25, 2013 Posted by | Corporations, Jobs | , , , , , , , | Leave a comment

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