Barwatch Bulletin for February 9, 2008

February 9, 2008

July 2, 2008

ABA President Bill Neukom Press Conference

ABA President Bill Neukom hosted a press conference on Friday afternoon. He discussed one of the major initiatives of his presidency, the World Justice Project. The Project is "a multidisciplinary and multinational initiative to foster human well-being by advancing the rule of law." The Project was about to launch its "Rule of Law Index" which measures four factors in an effort to create reliable, accessible, and timely information assessing a country's adherence to the rule of law.

Neukom announced that four countries-the United States, Nigeria, India, and Chile-would be the first scrutinized. The VERA Institute for Justice, based in New York, would be conducting the assessment. VERA "combines expertise in research, demonstration projects, and technical assistance to help leaders in government and civil society improve the systems people rely on for justice and safety," according to its website.

The webpage description continues, "Every Vera project begins with an examination of how a targeted part of the justice system really works. Often, this inspires the design of a practical experiment or the development of a rational course for reform. Whatever path a project takes, Vera's goal is to help government partners achieve measurable improvements in the quality of justice they deliver and to share what they've learned with people around the world. The result: Justice systems that are fairer, more humane, and more effective for everyone."

The four countries selected were chosen in part because VERA could offer a quick assessment. Geographic diversity was another reason. The United States was chosen to be true to the assertion that this was a multidisciplinary project.

The ABA hopes the Index will be valuable in that its results will be public Any critique would be considered "constructive criticism." When asked if the ABA planned to take the results to the United Nations or another IO, Neukom stated that was not the intention.

In other news...

--Neukom discussed the ABA's efforts to protect the rule of law in Pakistan. He announced that the State Bar Association of New York would offer a recommendation to be considered by the House of Delegates urging that Pakistan adopt the Three R's: "restore" the Constitution, "reinstate" the fired Supreme Court justices, and "release" all those who had protested the government's crackdown on the legal system. Neukom endorsed the recommendation.
--Neukom praised the recent actions by Congress to offer a "long overdue" pay raise for judges.
--In response to a question about President Bush's announcement that he would issue a signing statement on his authority to bypass the Defense Act, Neukom commented that it was the "plain policy of the ABA to discourage signing statements of the sort that this Administration has been using...We are witnessing a historic challenge to legislative intent. We don't think it's healthy or constitutional."

Election Law and Voting Rights

On Friday morning, the ABA's Section of State and Local Law sponsored a program entitled, "Modern Election Law and Voting Rights." In the panel description, the Section stated that it was "committed to answering all of your questions concerning the election process and how to best represent a diverse population and issues surrounding their ability and access to vote." All four speakers contributed pieces to America Votes! A Guide to Modern Election Law and Voting Rights, to be published by the ABA. The panel was moderated Benjamin E. Griffith, the Chair of the Section of State and Local Law and co-editor of America Votes!

Terry M. Ao is the director of the census and voting programs for the Asian American Justice Center. In 2006, she published a law review article entitled, "When the Voting Rights Act Became Un-American: The Misguided Vilification of Section 203." Ms. Ao was also counsel on the amicus briefs filed in support of the University of Michigan in the Supreme Court cases Gratz v. Bollinger and Grutter v. Bollinger. Ms. Ao described the best practices for aiding minorities with language barriers. She explained, "we still see disparities" in voting among ethnic and minority groups. The inability to speak and understand English "is the single greatest hurdle" that many language minorities face when attempting to vote. Additionally, these minorities can face discrimination. Ms. Ao described several anecdotes of Asian voters facing hostility at the polls. She added that when voting districts are required to provide language assistance the rate of language minority voting sees significant gains.

Ao added that language assistance must be effective for it to aid language minorities. Written language assistance needs to be of high quality and to include not just translated ballots, but also the supplementary materials. Jurisdictions also should recruit multi-lingual poll workers who are truly proficient in English and their secondary language. Oral language assistance is also necessary for minorities who speak languages that are not traditionally written down, such as many American Indian languages. These provisions will require long-term planning and well-trained poll workers, including "sensitivity training" for the workers. Ms. Ao acknowledged that these improvements would "require extra funds."

Jocelyn Benson, an assistant professor at Wayne State University Law School, has previously worked for the Democratic National Committee during the 2004 presidential election, organizing and developing an Election Protection program. Professor Benson also worked as the Voting Rights Policy Coordinator for the Harvard Civil Rights Project and as a summer associate for voting rights and election law for the NAACP Legal Defense Fund. Prof. Benson emphasized that the voter plays "a preeminent role" on Election Day. All of our laws should "protect the voter and encourage her participation." Election administers should encourage as much participation as possible, including "someday universal participation."

Prof. Benson described the history of Section 203 of the Voting Rights Act, which was spurred by the low voting participation of minority communities. Congress acted in response to "significant evidence" that many of these communities had insufficient educational opportunities. If a state had language minority groups that made up 5% or more of the total population, Section 203 required the state to provide translated election materials for these groups. Prof. Benson then described "a lack of compliance by many jurisdictions" and a problem of jurisdictions offering mistranslated materials or "questionable assistance." She contended that election officials need to be proficient in the law and ought to enforce the rights of language minorities. The election officials play "a pivotal role" in this process and should "go above and beyond" what is required by state and federal law to ensure minority groups are able to vote.

Kristen Clarke serves as Co-Director of the Political Participation Group at the NAACP Legal Defense and Educational Fund. Ms. Clarke focused her remarks on the Section 5 preclearance provision of the Voting Rights Act. The provision requires certain jurisdictions to get pre-approval of voting rule changes before enacting them. The jurisdictions targeted were considered to have a history of "egregious" violations of voting rights; the majority of the affected jurisdictions are located in the South. The changes are analyzed to determine if they are "retrogressive" to voting rights. Such changes could be eliminating a minority voting district or moving a voting location to an area that is "hostile" to minorities.

Ms. Clarke acknowledged that Section 5 comes with significant federalism issues, but she listed several reasons why these issues should not invalidate the law. It is not a permanent law. Section 5 is not a national law, but applicable only to those areas with "the longest and most egregious history" of voter discrimination. The Section is not static, as jurisdictions who get a "clean bill of health" can apply to be removed from the preclearance list.

Congress voted to renew Section 5 in 2006, but currently Northwest Austin Municipal District No. 1 v. Gonzalez, a case challenging the constitutionally of the law, is in federal court. The challenge argues that the law is a "scarlet letter" which prejudges the affected jurisdictions, that it is difficult for jurisdictions to get out of the preclearance list, and that it has severe federalism consequences. Ms. Clarke added that there is "reason to be hopeful" the challenge will fail, as a number of Supreme Court cases have held Section 5 as "a gold standard" that should be used as an example of proper use of Congressional power under the Fourteenth Amendment. She predicts that the Supreme Court, as it is likely to review the case, will hold up Section 5 as constitutional.

Jena 6

Today's sessions included two panels examining the Jena 6 incident in Louisiana. The Jena 6 incident involved a group of six African American teenagers charged with the beating of a white teenager a few months after three white students hung nooses from a tree at Jena High School. The nooses were hung after African American students sat under the tree, which was normally occupied by white students. Some viewed the charges against the African American students as excessive and racially discriminatory. The Council on Racial and Ethnic Justice hosted the first panel "Is Jena 6 the Tip of the Iceberg?" which dealt with issues that arose out of the incident, including disparities in the juvenile justice system and overrepresentation of juveniles of color in the system. The description asked the following questions: "Who's responsible and accountable? What's the role of the media?" Judge David A. Perkins of the Wayne County Circuit Court in Detroit moderated the panel.

Ms. Vanita Banks, the President of the National Bar Association, argued that African American youth did not have equal access to healthcare, housing, education, and legal representation, all of which could cause the crime rate to rise.

Mr. Donald W. Washington, U.S. Attorney from the Western District of Louisiana, provided statistics showing that minority juveniles, especially African Americans, are greatly overrepresented in the juvenile criminal system. Washington highlighted family situations, especially the prevalence of single parent households, as directly related to juvenile crime.

The third speaker, Ms. Joycelyn Crumpton of the UCLA Department of Social Welfare, addressed juvenile crime from the perspective of foster care. She maintained that African Americans "experience discrimination in so many systems today." The discrimination was not just prevalent in juvenile justice, but also healthcare, education, and mental health. The disparity is "systemic." Ms. Crumpton highlighted the correlation between foster care and youth crime, calling the systems "undeniably related." She stressed, "we have to close the door" and examine the causes of children entering both systems.

Dr. Joseph Martin, of the Omega Boys Club, claimed, "The response to Jena 6 didn't surprise me at all." He said that the response is to be expected: "America is built on racism" so Americans have been trained to respond to racism. Martin said, "Black America has always been assaulted from the outside" but "we weren't assaulted from the inside." He claimed that the black community was in a cycle. It is impossible to do anything about the overrepresentation of African Americans in the juvenile criminal system unless you address the underlying conditions that cause the overrepresentation. He cited explosion of crack cocaine use beginning in 1980 and warned, "The black family is in shambles." He concluded, "Until we're strong enough to fight the inside job" Black America will continue to suffer.

Ms. Mia Yamamoto (who is also receiving an ABA Spirit of Excellence Award) is the Principal Attorney at the Law Offices of Mia Yamamoto and a co-founder of the UCLA Asian Pacific Islander Law Student Association. Ms. Yamamoto called Jena "a fairly typical situation" especially when the victim is white and the attackers are African American. She advocated a holistic approach solution to African American youth crime, which would encompass everything from schools, to the community, to the youths' economic situation. Yamamoto added that "politicians do love crime" as it gives them an issue "to distract people from their own failures." She added that sending a 14-year-old to prison for a life term is wrong, and that it is "excessive, stupid, and political."

The next speaker, Mr. Winston A. Peters, is an Assistant Public Defender in the Los Angeles County Public Defender's Office. Peters also advocated a holistic approach in addressing the needs of minority youth in the criminal system. Many of these youth have suffered from physical abuse, substance abuse, or mental health issues. Often, they are not evaluated for such problems until they enter the juvenile justice system. Peters described how his office had hired social workers with psychiatry experience in order to get the teens the "services they are entitled to." While many of the criminal youth ought to be in jail, "a lot of kids do not belong in the system."

Allen J. Webster, a judge in the Los Angeles County Superior Court in Compton, addressed the issue of gang violence among African American and Hispanic youth. Webster called gang violence "a genocide happening in our own community." He criticized the "apathy and indifference" of the community to this violence, which "for the most part goes unchecked."

The second panel, entitled "Re-Approaching Jena," was sponsored by the ABA Criminal Justice Section, and moderated by Section Chair Stephen Saltzburg. He explained that the panel was not going to analyze the law involved in this incident, but would instead examine the history behind the racial intentions involved in the Jena 6 situation. The panel would be addressing questions such as: How could community or school-based peer mediation have been used to resolve the initial disputes that situation escalated? What have we learned about the exercise of discretion by students, school administrators, the police, the prosecution, defense lawyers, and others in Jena? How could restorative justice be utilized to help address the racial tensions underlying the various incidents that occurred in Jena and to heal the community?

Wayne McKenzie is the Chair of the Section's Committee on Race and Racism and the Director of the Prosecution and Racial Justice Program at the Vera Institute of Justice. Mr. McKenzie laid out the context of the Jena 6 attack.

James C. Hanks, a School Board Attorney and Editor of School Violence: From Discipline to Due Process, described the legal issues surrounding Jena. He emphasized that all young people "are worth saving" and we need to remember that when dealing with school discipline and crime.

Robert Johnson, the Anoka County Prosecutor in Minnesota, presented a prosecutor's view. In America, many local prosecutors are elected and are therefore very intimate with the communities they serve. In Jena, this may have been a weakness as the prosecutor may have been considering in the context of the community that elected him. When evaluating a case in a biased environment, you "may have bias" in your decision. Mr. Johnson pondered, "How do we deal with this bias?"

Dr. Sylvia Rousseau, a Mediation expert at UCLA, was the principal of Santa Monica High School in California for eight years. Dr. Rousseau explained that there is a historical tension and disparity between white and minority groups in schools. Schools "have a tough task" to mediate a space where all persons and students on that campus are valued and "have dignity." In order for learning to take place, "there are cultural and social differences" among students that need to be overcome. Jena 6 was a symptom of a place that had not been mediated.

Other CLE Panels

--A panel entitled, "Stranger in a Strange Land: Cross-Cultural Issues in the Courts," invited audience participation to guess how judges ruled in various cases where the "cultural defense" may have been employed. The cases included Rai vs. Taco Bell, Marks vs. Clarke, and Maine vs. Kargar. A majority of the audience favored some sort of cultural defense in most of the cases profiled.
--Pepperdine Dean Kenneth Starr and Professor Erwin Chemerinsky offered their thoughts on their careers in appellate advocacy. When asked what their most memorable cases were, Starr responded that the Nancy Cruzan case and the Oklahoma City School desegregation case were two he particularly recalled as memorable. In the latter, while he was dismayed that former Supreme Court Justice Thurgood Marshall accused him of promoting segregation, he was encouraged by the African-American school superintendent who praised his advocacy of local control, after three decades of federal control. Chemerinsky replied his most memorable case was the Butterfly Ballot case on behalf of Al Gore in Florida in November 2000, mostly because his teenage son (correctly) predicted he would lose the case, as the judge did not understand his argument. Chemerinsky also recalled winning a 9th Circuit case concerning a doctor who was denied a medial license because of a history of depression. He argued on behalf of the doctor before his first-year law students, and won.