Abbott, Davis on the death penalty

The Houston Chronicle reports that new questions have arisen in the Texas gubernatorial election over the continued use of the death penalty in the State. Attorney General Greg Abbott, the Republican candidate, has slammed State Senator Wendy Davis (D-Tarrant County), the Democratic candidate, for allegedly too liberal views on capital punishment.

Specifically, Abbott points to a move Davis made in 2000, while a member of the Fort Worth City Council, to support a non-binding resolution urging a moratorium on the death penalty. When reached for comment, Davis reiterated her support for the positions that she espoused at the time, but noted that her concerns have all been mollified. Among them were concerns over innocence with the introduction of DNA testing, as well as opposition to executing those who committed their crimes as juveniles and the developmentally disabled. Since that time, to Davis’ credit, much as changed. The Supreme Court ruled on a series of landmark decisions —Atkins v. Virginia in 2002 and Roper v. Simmons in 2005– that prohibited the execution of those two respective categories of offenders. Furthermore, even Texas has made strides in recent sessions to mitigate the damage done by wrongful imprisonment. The Michael Morton Act, passed last year by the Legislature, is the obvious recent example.

Back to Abbott, he has harshly derided Davis for allegedly being somewhat “soft-on-crime” and an overall opponent of the death penalty. Davis, for her part, has fired back by claiming that she is –and always has been– a steadfast supporter of capital punishment, and would gleefully preside over it if elected Governor. In fact, she even touted her record voting for an expansion of the penalty –making it applicable to those who murder young children.

Another one of Abbott’s talking points is that the Texas Democratic Party, in its official platform, calls for the abolition of the death penalty. This much is true, but Abbott of all people should know the dangers of making such a claim. The Texas Republican Party’s platform is seriously riddled with heinous provisions, such as the endorsement of gay repair therapy, or urging the “rescinding of no-fault divorce.” In fact, last year at the Tribune festival, I pointedly asked Abbott if he supported repealing the entirety of the Voting Rights Act of 1965, as his party’s platform supported. He said no. There’s nothing wrong with Abbott disagreeing with the crazy points in his platform, but that means there is also nothing wrong with Davis disagreeing with her party’s platform too.

I think the greater point here is over a severe political issue, and Davis’ reluctance to stand against a truly awful travesty. There is something to be said about not running too far to the left in a State as conservative as Texas, but not with this issue. Most people do not really care about the issue enough for it to be a wedge. If one is truly a zealous death penalty proponent, there are likely other confounding variables that would keep the individual far, far away from the Democratic Party (racism, for one).

The death penalty is immoral in every circumstance. Killing someone who is not presenting a danger to you (physical or existential) is wrong…that’s it. Hopefully, Davis can recognize that. Unlike every other domestic political issue, this involves life and death.

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The 2013 term closes

I’ve been debating for a while how best to broach this topic, given the plethora of landmark Supreme Court cases that have occurred in the last few weeks. I have decided that it would be best to discuss them all in one lengthy article. Simply put, this has been the worst Supreme Court term in recent memory. Search & Seizure and the Establishment Clause may as well not exist given the extent to which they were ignored. Campaign Finance reform was eviscerated, as Union rights were squished and a painfully asinine concept was propped up on the Hobby Lobby case. Still, there were some glimmers of hope. The decision in Riley v. California, in which the court unanimously ruled that the police need a warrant to look through one’s smartphone, was a particularly sagacious determination.

The Court, under the stewardship of Chief Justice John Roberts, has desperately sought out the middle-ground on controversial issues. Associate Justice Anthony Kennedy, the closest thing to a swing-vote on the Court, also wishes to convey this message; indeed, Roberts and Kennedy are the only Justices who vote in the majority upwards of 90%!

The problem is, the Supreme Court is supreme for a reason. If the nine sneeze, the country catches a cold. Judicial restraint might make for good sound bites for Justice Antonin Scalia’s keynote at the Heritage Foundation, but it simply does not work in practice. Ironically enough, the person who best understands that is probably Scalia himself, who penned the dissent last year in United States v. Windsor, which struck down part of the Defense of Marriage Act. Kennedy had sought to implement a very gradual implementation of gay marriage, which I noted about a year ago. Scalia, for his part, could see the handwriting on the wall and castigated the majority for not being upfront about their intentions. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.

Wow, was that prophetic. Just like he said, a scurry of lawsuits were immediately filed following the decision, and starting in December, the dominoes began falling one by one. Utah. Oklahoma. Virginia. TEXAS! And ten others. All in all, in the over dozen Federal District Court decisions voiding State-level bans on gay marriage, all of them cited Kennedy’s decision and some even Scalia’s dissent. All 50 states either already have gay marriage or a Federal lawsuit against the banning of said gay marriages. Kennedy’s narrow, limited-scope decision was no more.

Thus, when I hear some of those same Justices (e.g., Kennedy) prop up just how “narrow” their ruling is, I am naturally skeptical. Actually, skeptical is too light of a word; I am particularly doubtful. Each and every one of these major rulings, with the exception of the aforementioned Riley, has some troubling greater implications, even if I perhaps agree with the underlying judgment. Yet another problem I have with the Roberts Court is that it is rather unimaginative. All too often, the Court appears certain to pick one of two sides: the exact position proscribed by the plaintiffs, and that by the respondents. The beauty of our judicial system is that, to borrow a nerdy cliche, it encourages the Justices to “choose their own adventure,” thus coming up with new and imaginative ways to solve problems.

Indeed, arguably the most famous case in Supreme Court history consisted of such a compromise. The case of Marbury v. Madison, which first established the premise of judicial review, saw a functionally unanimous court reject the arguments of both sides, and reach their conclusion using yet another point of view. Unfortunately, this type of conclusion has become rarer in recent terms. The case of NFIB v. Sebilius, where the Court largely upheld Obamacare, comes to mind, but few others do.

First and foremost, harkening back to my point about narrow rulings and how they never turn out that way, there is the case of Burwell v. Hobby Lobby (Editor’s note: This case was previously called “Sebilius v. Hobby Lobby” but was updated to reflect the name of the new Secretary of Health and Human Services).

Hobby Lobby did not necessarily have a categorical opposition to contraception, just a couple forms such as Plan B (the morning-after pill) and Intrauterine Devices. For whatever reason, Hobby Lobby believes these forms of contraception cause abortion, thus they believe that they are indirectly funding and condoning the termination of pregnancies. Of course, the trouble with all this is that Plan B and IUDs are not abortifacients, they simply are not. I wrote a somewhat lengthy piece on all this back in March.

The reasoning employed by the Court’s five-person majority (lead by Justice Alito and joined by the other four all male conservative Justices) went as follows. While the 1st Amendment was somewhat specific in that it only prohibits those laws that “prohibit the free exercise” of religion, there is some statutory language that is even more broad. The Religious Freedom Restoration Act, passed in 1993, goes out of its way to say that the government may not “substantially burden a person’s exercise of religion” without a “compelling government interest,” and that furthermore, it must be the “least restrictive way of furthering that interest.”

The court found that requiring for-profit corporations to provide birth control, really in any capacity and not just alleged abortifacients, denoted a substantial burden. Furthermore, while the Court noted that there was the obligatory compelling interest in mandating contraception, they ruled that mandating employer-coverage was not the “least restrictive way.” Instead, the court suggested the government pay for the contraception, or a compromise is reached allowing the insurance provider to personally pay using solely out-of-pocket deductibles and co-payments from the employee. Of course, the immediate effect is not that any of this happens, merely that female employees of Hobby Lobby are out on their own.

There are a number of problems with this ruling, irrespective of the obvious factual inconsistencies. The biggest one, in my opinion, is that the court is still not clear about the legal role of a corporation. The majority stipulated that the RFRA applied to corporations, something that Justice Ginsburg strongly disagreed therewith in her dissent, though they just talked about the religious beliefs of the owners.

Yes, Hobby Lobby has a blurb in their declaration of principles about being run by Christian values, but those are just the words of agents of the corporation, not the corporation itself. I’m still at a loss to figure out how we know Hobby Lobby’s religious values are anathema to this mandate, all we know is that the owners disagree.

Corporate personhood has long existed as a legal fiction to limit liability from the owners. If the proprietor runs the business into the ground, he or she cannot be held personally financially responsible. If your bank accounts are not one in the same, it seems to me that your religious beliefs shouldn’t be either. Ironically enough, Hobby Lobby’s victory was that it was not seen as enough of a person. Granted, there are many intelligent people who disagree with me, and the Washington Post has a rather learned account of why corporations should have rights under the RFRA.

Stipulating the fact brouhaha and the corporate personhood dispute, I begin to see the conclusion that the majority reached. The only problem is that all of this posturing ignores the most important issue: What is the deal with this overbearing law that tangles in religious matters?

In the 1997 case of City of Boerne v. Flores, Justice John Paul Stevens argued in a lone opinion that RFRA is unconstitutional because it violates the Establishment Clause, “Congress shall make no law respecting an establishment of religion.” This is because it gives preference to religion over irreligion, something expressly forbidden by the Supreme Court in the 1985 case of Wallace v. Jaffree. A longer discussion on this topic is covered by the Washington Post, which also includes Justice Stevens’ opinion in full.

Then, there are the long term implications of everything. Already, the Court has granted an injunction to a non-profit opposed to ALL forms of contraception. It looks like the contraception mandate is lost, we just don’t know it yet. Fortunately, since the Court interpreted legislation and not the constitution, a simple vote of Congress could override this decision. Granted, the next time that is possible, I would recommend scrapping the unholy trainwreck that is Obamacare and replacing it with something effective like a single-payer system, where all this noise over employers would be non-issue.

Texas Leftist has more on that topic, specifically from a pertinent Chicago Tribune article on the subject. Furthermore, he highlights a recent tweet by Attorney General Greg Abbott, the Republican nominee for Governor, that lauds the ruling as “protecting life.” Does he think that contraception is wrong, or that it is tantamount to abortion? Deep down, the answer is obviously no. Abbott is not an idiot, but the fact that would grandstand to such extremes does make me worry.

Granted, the Texas Republican Party’s platform does not call for the criminalization of birth control, but it does strongly support entities such as Hobby Lobby, as well as oppose any mention of the pill in classrooms as well as making Plan B illegal. It will be interesting to see if this becomes a flashpoint in the gubernatorial election. State Senator Wendy Davis (D-Tarrant County), the Democratic nominee for Governor, lambasted the opinion, calling it “disappointing,” so reports the Dallas Morning News.

Harris v. Quinn, the ruling affecting Unions, is another 5-4 opinion, crafted meticulously narrow. However, like Hobby Lobby, this could easily be expanded to startling lengths.

In the case, eight family members of elderly Medicaid patients began receiving funds for services in the field of home healthcare. As such, the SEIU attempted to compel them to pay union dues, given that they were receiving union benefits. The same 5 person majority of conservative Justices, once again led by Justice Alito, noted that these contractors were “quasi-public” employees, rather than full-fledged public employees. Thus, the Court ruled that they should not be compelled to pay the union dues.

The only problem with this, of course, is that they receive union benefits. Overtime, higher salaries, benefits, all of which point directly back to their local chapter of the Service Employees International Union. Not being forced to pay dues creates a free rider problem, where no one will want to pay for the benefit, because, in the simplest terms, it still exists even if you don’t personally pay. The problem with this, obviously, is that if no one pays, the benefits go away.

Abood v. Board of Education, a 1977 case where the Court unanimously upheld the constitutionality of these mandatory dues in public employment, has long been the controlling case on the matter. Writing for herself and the three other liberal Justices, Justice Elena Kagan heavily relied upon Abood as a reason to declare these beneficiaries of public sector unions beholden to their mandatory fees.

Justice Alito, meanwhile, humored in his dicta the idea that Abood was erroneously decided, but the Court took no action on the case. Once again, expect a flurry of lower court decisions opining on the merits of mandatory union dues.

Republicans, unsurprisingly, are giddy at this, because without mandatory dues, Unions fall apart financially. Without unions, the Democratic Party falls apart financially. Lovely, isn’t it?

Editor’s note: I will expand upon this article later today, specifically with regard to McCutcheon, Fernandez, Riley, Town of Greece
and McCullen.

Fifth Circuit stays Campbell execution

The New York Times reports that the Fifth Circuit Court of Appeals has stayed the execution of Robert Campbell, which was scheduled for this evening. As I wrote extensively over the weekend, Campbell’s case represents two distinct quandaries. First, the execution would be the first to occur following the horrendous butchery that occurred a couple of weeks ago in Oklahoma. Second, Campbell’s IQ is 69, below the line commonly designated for mental retardation. This is significant because the US Supreme Court ruled in 2002 (Atkins v. Virginia) that those will severe intellectual deficiencies may not legally be put to death.

The Federal Appeals Court declined to issue any sort of stay as a result of what I have called the “secret execution drugs.” This issue hails from the fact that the State of Texas recently started obtaining its death drug, pentobarbital, from secret compounding pharmacies, details of which have not even been disclosed to the attorneys of the condemned. Texas has, in all fairness, undergone two of these executions without a hitch. That being said, the issue over the condemned man’s mental faculties struck a chord with the Court.

Click here to read the full analysis!

In re Campbell

There is man named Robert Campbell on Texas’ death row, who is scheduled for execution this upcoming Monday. He was convicted of an especially heinous 1991 robbery-rape-murder, for which he was given Texas’ ultimate penalty: death. Campbell has argued a number of objections since that time, explaining in part why he was languished on death row nearly in a state of limbo for so long. Namely, he has contended that he received inadequate counsel at trial. Anecdotally, his new attorneys point to the fact that his original defender was from Conroe, not Houston (where his trial took place), and only provided rudimentary petitions and appeals, stuff that could basically just be copied off the internet.

However, while litigating this issue, another can of worms, so to speak, arose. Campbell’s IQ, according to a recent test, is 69, far below the threshold for mental retardation. In the 2002 case of Atkins v. Virginia, the US Supreme Court ruled that those who have been explicitly defined by their state of mentally retarded. The intellectual handicaps are to be treated like youth or any other mitigating factor, in that it does not serve as evidence of being unable to comprehend the difference between right and wrong, but serve as a rationale to not levy the full punishment. The problem with this is that States can define mental retardation any way they so choose. Enter Campbell: with an IQ of 69. The problem is that the State contends this is not tantamount to the needed intellectual handicap for clemency.

Click here to see what the Texas Court of Criminal Appeals ruled on this matter!

Civil Affairs: McCutcheon

Nearly two weeks ago, the United States Supreme Court ruled, in a closely divided case — McCutcheon v. FEC — that political donors have the right to give a certain amount of money to as many candidates as they like. Previously, federal law had prevented a donor from providing the maximum donation ($2,600 for a candidate, $5,000 to a political action committee and $32,400 to a political party) to more than roughly 19 candidates or 15 PACs. Now, those donors can give those aforementioned individual limits to as many candidates, committees and interest groups as they wish.

The 5-4 decision rested upon the assertion that, under the First Amendment, money is tantamount to speech. Using that assumption, Chief Justice John Roberts wrote that, despite its unpopularity, the right to give money to as many politicians as you choose is fundamentally constitutional. Of course, spending money should not be a universal right like worship or speech because not everyone has the pocketbook needed.

“Money in politics may, at times, seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” Roberts wrote in a decision joined by the four other justices nominated by Republican presidents. “If the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

PLEASE SEE THE REST OF THIS COLUMN AT THE DAILY TEXAN!

Civil Affairs: Facts

CIVIL AFFAIRS

When is a lie a lie and when is it a political conviction made in good faith? Recent flare ups in Washington and the Texas gubernatorial election show that sometimes the two are interchangeable. Unfortunately, our political system has grown to accept its participants’ fibs, sometimes with strange results.

For example, about two weeks ago, the popular crafts chain store Hobby Lobby was in the news after its suit against the federal government reached the Supreme Court. The store was arguing against a provision in the Affordable Care Act, known by some as Obamacare, that requires employers to provide free or reduced-cost contraception to their employees. Citing religious liberty, the owners of the privately held corporation refused to do this, which triggered the lawsuit.

At first glance, a suit such as this, about corporate personhood and religious liberty, would appear to be a good-faith dispute made over legitimate political convictions. The problem with this is that Hobby Lobby does not actually cite categorical opposition to contraception as the basis for its lawsuit. Instead, it cites a belief that many forms of contraception, including some pills and intrauterine devices, are tantamount to abortion. Scientifically speaking, this is simply not true, as no evidence exists that indicates these methods end a pregnancy after fertilization. In fact, most evidence decisively shows that IUDs — or the other birth control methods Hobby Lobby cited, such as Plan B — are contraceptives and not abortifacients.

PLEASE SEE THE REST OF THIS COLUMN AT THE DAILY TEXAN!

Secret execution drugs, Part III

As some may recall, I noted last week that a Civil District Judge in Austin blocked the Texas Department of Criminal Justice’s recent move to get a secret dose of drugs used for lethal injections, obtained from compounding pharmacies that wished to remain anonymous. The next day, after a summary affirmation by a Court of Appeals, the Texas Supreme Court put forward a writ of mandamus that stayed the ruling. Given that the plaintiff in this case only has a few more days on this planet absent judicial intervention, a stay is tantamount to upholding an arguably especially cruel death sentence.

Accordingly, the next step was to Federal Court. Early today, Judge Vanessa Gilmore, a Federal District Judge based in Houston (Southern District of Texas), ordered the TDCJ to disclose the particulars about both the contents and sources of the execution drugs. Gilmore, a nominee of President Clinton who has served since 1994, is somewhat more progressive on 8th amendment issues than her colleagues. Therefore, unsurprisingly, as the Houston Chronicle reports, the order was quickly overturned by the Federal Appeals Court. The fifth circuit Court of Appeals, as many will remember, is one of the most fiercely conservative courts in the land. Most all of the judges were nominees of Reagan or the second Bush, and Obama’s administration has been largely tepid in its willingness to put new Judges on the bench, despite many vacancies.

Click here to read more, including what to do next!