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Criminal Law

Are Existing Civil Rights Policies Based on a Statistical Understanding That Is the Opposite of Reality?

Civil Rights Practice Group Teleforum Monday, July 24, 02:00 PMFederalist Society Teleforum Conference Call

For decades, the DOJ’s civil rights enforcement policies regarding lending, school discipline, and criminal justice have been premised on the belief that relaxing standards and otherwise reducing the frequency of adverse outcomes will reduce percentage racial differences in rates of experiencing those outcomes.  Exactly the opposite is the case. Generally reducing any adverse outcome tends to increase, not decrease, percentage racial differences in rates of experiencing those outcomes.  This Teleforum will discuss whether the Sessions DOJ will be able to understand the statistical issues and, if so, how such understanding should affect civil rights enforcement policies.

Featuring:

  • James P. Scanlan, Attorney at Law
  • Roger B. Clegg, President and General Counsel, Center for Equal Opportunity

Compensation for the Wrongfully Imprisoned? - Podcast

Criminal Law & Procedure Practice Group Podcast
David LaBahn, Ilya Somin July 11, 2017

In recent years, there have been a growing number of cases where people have been freed from prison after they were exonerated or their convictions were overturned. Some states have statutes that provide compensation under some circumstances to such individuals, but the scope of those statutes and their applicability varies, with other states providing no means of compensation at all. A number of advocacy groups are pushing for changes. What, if anything, should be done? What kind of compensation are the wrongfully imprisoned entitled to? What kind of financial obligations for these cases can state treasuries bear? What is the perspective of law enforcement on these questions? This Teleforum explored these and related issues.

Featuring:

  • David LaBahn, President and CEO, Association of Prosecuting Attorneys
  • Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Courthouse Steps: Hernandez v. Mesa Decided - Podcast

International & National Security Law Practice Group Podcast
Steven Giaier June 29, 2017

On Monday, the Supreme Court vacated and remanded Hernandez v. Mesa to the Fifth Circuit. The case involved a cross-border shooting and a Bivens claim.

In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen.

The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity.

Steve Giaier of the House Committee on Homeland Security joined us to discuss the Court’s decision to vacate and remand and what it means for the case going forward.

Featuring:

  • Steven Giaier, Senior Counsel, House Committee on Homeland Security

Legislating Clemency - Podcast

Criminal Law & Procedure Practice Group Podcast
Margaret Love, John G. Malcolm June 16, 2017

The enactment of lengthy no-parole sentences and the atrophy of other statutory early release mechanisms has placed unusual demands on the clemency mechanism in recent years, notably in the federal system. Similarly, an increase in the number and severity of collateral penalties has made pardon the only way most people with a criminal record can pay their debt to society. As Enlightenment philosophers recognized, clemency was never intended to substitute for a well-functioning legal system. With all due respect to Alexander Hamilton, in today’s world it is questionable whether a politician is “a more eligible dispenser of the mercy of the government” than a court.

The American Law Institute recently approved a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC includes provisions intended to reduce the need for executiveclemency, in two ways. First, the MPC provides authority for courts to reduce prison sentences in situations where circumstances have fundamentally changed. Second, the MPC proposes a comprehensive scheme for managing the collateral consequences of conviction that makes courts the primary source of relief. Former U.S. Pardon Attorney Margaret Love, currently the Executive Director of the Collateral Consequences Resource Center, will discuss the merits and potential consequences of these proposed MPC reforms.

Featuring: 

  • Margaret Love, Law Office of Margaret Love
  • Moderator: John Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

Beyond the Yates Memo: A New Era of Enforcement? - Event Audio/Video

Criminal Law & Procedure Practice Group
Alice Fisher, Matthew S. Miner, George J. Terwilliger, Richard J. Leon June 16, 2017

In this sequel to our panel last year on “The Limits of Federal Criminal Law,” we ask a distinguished panel to discuss how enforcement policy is evolving under Attorney General Jeff Sessions. Is the Yates Memo targeting individual employees of a corporation still operative? Do the speeches of the new Attorney General give any insights into future enforcement tendencies?

This event was held on June 13, 2017, at the National Press Club in Washington, DC.

Featuring:

  • Hon. Alice Fisher, Partner, Latham & Watkins LLP 
  • Matthew S. Miner, Partner, Morgan, Lewis & Bockius LLP
  • Hon. George J. Terwilliger III, Partner, McGuireWoods LLP  
  • Moderator: Hon. Richard J. Leon, U.S. District Court for the District of Columbia

National Press Club
Washington, DC