Constitutional Law

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Retribution and Deterrence of the Death Penalty

“Based on my specialized knowledge of this process, I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purposes served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty punishment option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel.”

– Judge Tom Price, Texas Court of Criminal Appeals; Ex parte Panetti (No. WR-37,145-04), in his 11/26/14 dissent of the Texas Court of Criminal Appeals’ denial of Mr. Scott Panetti’s writ seeking to halt his scheduled execution. The 5th Circuit halted the execution on 12/3/14, acknowledging the “complex legal questions at issue,” presumably that of imposing the death penalty on someone with severe mental illness.

Does the “Mass Collection of U.S. Phone Records Violates the Fourth Amendment”?

That was the question being debated on the most recent episode of the Intelligence Squared podcast.

Moderated by ABC News’ John Donvan, the debate featured Alex Abdo (American Civil Liberties Union) and Elizabeth Wydra (Constitutional Accountability Center) who argued for the motion; and Stewart Baker (Steptoe & Johnson) and John Yoo (University of California, Berkeley) who argued against the motion.

Here is description of the debate:

Some say that mass collection of U.S. phone records is a gross invasion of privacy. Others say that it is necessary to keep us safe. But what does the U.S Constitution say? “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Is collection of phone records a “search” or “seizure”? If so, is it “unreasonable”? Does it require a particularized warrant and probable cause? These are among the most consequential-and controversial-constitutional questions of our time.

Clearly Hiding Something: President Obama’s chance to recommend changes to the NSA

Clearly Hiding Something: President Obama’s chance to recommend changes to the NSA
By
David Kailer
http://security.blogs.cnn.com/2014/01/14/obama-ahs-room-to-maneuver-on-nsa-reforms/

Amidst the ongoing controversy surrounding the National Security Agency and the arguable constitutionality of its domestic and international surveillance programs, CNN has reported that President Obama is compiling a list of recommendations to be put to the agency in order to restore confidence in the National Security Agency in light of the leaks by Edward Snowden last year.

After an independent review board looked into the NSA’s practices, their formal recommendation was “that government do a better job of protecting civil liberties”. Whether the Obama administration follows that recommendation, and to what extent they will tighten protections depends on the specific official recommendations the President makes in the coming days and weeks.

Much of the article focused on reminding readers of Obama’s continual claim to improving administrative transparency, capturing the importance of these recommendations for the second-term President’s legacy, and discussing the tension between the need for competent intelligence work and the need to protect the fundamental values of citizen privacy enshrined in the Constitution.

One recommendation the article deemed likely was that the President might order private companies to maintain the data and metadata which the NSA currently collects, and to yield that information only pursuant to a [constitutional] request. Interestingly, the article makes no mention of the significant costs creating such an infrastructure might impose on private companies. There is also no discussion of how disclosure requirements might change where private companies are keeping the records pursuant to a government regulation.

Another potential recommendation discussed included creating an entity or appointing an individual to act in an adversarial role when the government requests such documents, the opposing entity essentially playing devil’s advocate in keeping the records out of government hands. If this is a government-appointed position, that may bring up issues of collaboration by both sides or lip service in performing adversarial functions.

While it is reassuring to see the Obama administration taking the nation’s concerns seriously, it is too early to consider this issue addressed. Personally, I would like to see a vigorous, bona fide adversarial process put in place. This would have the added benefit of protecting civil liberties while not imposing any additional burdens on the intelligence community if they are already complying with the Constitution. Additionally, the President might benefit from making the National Security Agency regularly accountable for their actions, as there have been reports of the NSA refusing to answer inquiries from Congressmen about the scope of the NSA’s intelligence activities.

Do the recommendations listed above solve this issue? What other recommendations would you like to see put in place when the President submits his formal requests?

The Daily Show on Stop-and-Frisk Decision

The Daily Show on Stop-and-Frisk Decision

Last night, the Daily Show discussed the recent federal court case finding NYPD’s stop-and-frisk tactics unconstitutional and NYC’s response to the decision.  As we covered on Monday, U.S. District Court Judge Shira Scheindlin held that the New York Police Department’s stop-and-frisk tactics violated the Fourth Amendment’s prohibition against unreasonable search and seizures and the Fourteenth Amendment’s Equal Protection Clause. 

Here is how The Daily Show describes its “coverage” of the story:

Mayor Michael Bloomberg thinks New York’s stop-and-frisk program is being unfairly stopped and scrutinized even though it’s done nothing wrong. 

Federal Judge Finds NYPD’s Stop-and-Frisk Unconstitutional

Today, U.S. District Court Judge Shira Scheindlin held that the New York Police Department’s stop-and-frisk tactics violated the Fourth Amendment’s prohibition against unreasonable search and seizures and the Fourteenth Amendment’s Equal Protection Clause. 

Below is the beginning of a WNYC story about the case: 

U.S. District Court Judge Shira Scheindlin issued her long-awaited opinion finding that the New York City Police Department had violated the Fourth and Fourteenth Amendments in the way they have conducted stop-and-frisks. 

“Targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality,” she wrote in her strongly-worded ruling.

In her opinion, which can be read in full below, Judge Scheindlin writes:

“To be very clear: I am not ordering an end to the practice of stop and frisk. The purpose of the remedies addressed in this Opinion is to ensure that the practice is carried out in a manner that protects the rights and liberties of all New Yorkers, while still providing much-needed police protection.”

Mayor Michael Bloomberg, reacting Monday afternoon at a press conference, was visibly angered by the judge’s decision. “The judge ignored the realities of crime,” he said, “like the fact that our police officers on patrol make an average of less than one stop a week.”

More on Bloomberg’s reaction.

The judge specified a number of steps the NYPD must take to reform stop-and-frisk. It must revise its policies and training procedures, especially its “over-broad definition of ‘furtive behavior.’ It must change the written documentation police must produce after stops. and it must institute a one-year body camera pilot program involving one precinct in each borough. . . . 

 

READ THE “REMEDIAL OPINION”

Judge outlines what NYPD needs to do next.

 

READ THE RULING

Ruling: Judge finds NYC stop-and-frisk policy violated rights.