The current iteration of the Equal Rights Amendment was proposed in 1972, with a seven-year deadline for ratification by three-fourths of the states. It fell short by three states, but never really died. Its operative language was a sign of the times, and provides a sign of our times in retrospect.

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Note the word “sex.” Not “gender,” as has become the substitute description, as sex was a binary descriptor, male and female, and today we have 31 flavors. Had the ERA passed, would it have protected transgender people? Gay people? There is nothing about the word “sex” that’s intersectional. But as Susan Chira points out, women have achieved much of the nightmare Phyllis Schlafly cautioned would come to pass. Continue reading →

Few things are as universally misreported as federal sentencing, both because it’s hard to grasp and it involves math. Consequently, the Special Counsel’s sentencing memo regarding Paul Manafort has been largely misunderstood. The memo opens with the totally ordinary statement that Mueller’s office does not dispute the Presentence Investigation Report’s calculations of the Federal Sentencing Guidelines.

As an initial matter, the government agrees with the guidelines analysis in the Presentence Investigation Report (PSR) and its calculation of the defendant’s Total Offense Level as 38 with a corresponding range of imprisonment of 235 to 293 months.

This is not the same as saying that “Manafort deserves up to 24.5 years in prison,” or that “Mueller’s Office Recommends Paul Manafort Serve Up to 25 Years in Prison.” Thats not remotely what Mueller’s office is saying. They are merely agreeing with the guidelines calculations, which are now advisory after Booker and will be subject to argument at sentencing, where the government may choose to address sentence or leave it to the discretion of the judge. Continue reading →

It’s not that he isn’t a brilliant lawyer, but that only makes his WaPo op-ed harder to swallow. David Cole, legal director of the ACLU, knows better. It seems impossible that he could make such a rookie mistake as to conflate racial discrimination with sex discrimination on campus.

After all, race is a suspect classification. Sex is not. Sex discrimination is prohibited by Title IX. Racial discrimination is not. There are similarities from 35,000 feet up, but no knowledgeable person would ever, ever, conflate the two in argument. If it happened in a courtroom, the lawyer would get laughed out of the well, on a good day.

On a bad, the judge would rip him a new one for trying to pull the wool over him. And yet, in an op-ed, intended to be read by the general public, David Cole deliberately conflates the two. What other purpose could there be to such a ridiculous comparison than to mislead and deceive? Yet, he does. Continue reading →

Eric Turkewitz has been carefully watching the New York legislature, as it’s been busy writing new laws now that the Democrats hold a majority in the Senate for the first time in memory. The latest, called the “Child Victims Act,” has significant ramifications for both civil and criminal practice. Taking a moment off from neglecting the subways, Governor Cuomo signed the bill into law.

Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.

On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.

On the criminal side, the statute of limitations won’t start to run until the child has turned 23.

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During voir dire, jurors are asked whether there is any reason why they can’t be fair and impartial. One juror in Massachusetts answered the question honestly.

Q.: You feel like you might have a bias in the case?
A.: Yeah. I worked with, like, low income youth in a school setting. I worked a lot with people who were convicted of — like teenagers who were convicted of drug crimes. And frankly, I think the system is rigged against young African American males. I’m happy to serve on the jury trial — on the jury because I think it’s important, but —

Q.: You think that belief might interfere with your ability to be fair and impartial?
A.: I don’t think so.

After further prodding at the bench, questioning by the court concluded with this: Continue reading →

Amazon pulled out, because it could. Its plan to build a campus and corporate headquarter in Queens was hardly perfect, but no plan could be. Still, the benefits to New York exceeded the $3 billion in tax incentives and New Yorkers supported it.

There were all sorts of problems with the deal New York cut to bring Amazon to the city, and Amazon is no paragon, but its abrupt withdrawal was a blow to New York, which stood to gain 25,000 jobs and an estimated $27 billion in tax revenue over the next two decades. This embarrassment to the city presents a painful lesson in how bumper-sticker slogans and the hubris of elected — and corporate — officials can create losers on all sides.

Overall, support was 56% for Amazon. Notably approval increased to 70% for Blacks and 81% for Latino. Continue reading →

Willie “Bo” McCoy was only 21 years old, and now he’s dead. Did six cops need to pump bullets into him? That’s a hard question to answer, particularly since he can’t speak to what was going on in his head since he’s dead. But that doesn’t do much to provide an answer.

Officials in Vallejo told the San Francisco Chronicle that police discovered the local artist, identified as Willie McCoy or “Willie Bo,” sleeping in a drive-through lane with a handgun in his lap over the weekend.

Police were reportedly called to the restaurant late Saturday after an employee said he found a driver slumped over in his car.

Why was he “slumped over” in his car blocking the drive-through lane at the Taco Bell? Why did he have a gun in his lap? It’s hard to fault the restuarant employee for calling the cops, under the circumstances, and the fact that six cops showed for this call isn’t surprising. Guns do that to cops, bringing more than the drunken guy who won’t leave Taco Bell alert. Continue reading →

At Vox, German Lopez proffers what he calls the “radical” notion of capping all prison sentences at 20 years.

It’s time for a radical idea that could really begin to reverse mass incarceration: capping all prison sentences at no more than 20 years. It may sound like an extreme, even dangerous, proposal, but there’s good reason to believe it would help reduce the prison population without making America any less safe.

To the extent it might sound dangerous, that’s the by-product of the past 50 years of tough-on-crime appeal to our emotions, that bad things, horrible crimes, were happening and threatened our lives, our safety, our loved ones. The fix was to lock them away, for longer, then longer, then longer still. Continue reading →

[Ed. Note: As noted in the comments, this post is flawed in that Winthrop House is an undergrad dorm, and as far as the available information shows, this protest is by undergraduate students, not law students.]

Students at Harvard Law School have gained a bad reputation. Too social justice warrior, not enough lawyer. But when one of their prawfs announced he was taking on an outside gig as part of the Harvey Weinstein legal team following Ben Brafman’s falling out, what did he expect to happen?

Harvey Weinstein, the Hollywood film producer who has been accused of sexual misconduct by dozens of women, has hired Harvard Law School professor and Winthrop House Faculty Dean Ronald S. Sullivan, Jr. to represent him in his Manhattan sexual abuse case.

Sullivan — who heads the Law School’s Criminal Justice Institute — will serve on Weinstein’s legal team with lawyers Jose Baez and Pamela Mackey.

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Detroit had money problems, but it came out of bankruptcy. It was called a “rebirth.” That didn’t help the fund with which to pay the judgments for the people wrongfully convicted, wrongfully imprisoned. It’s effectively broke.

“The current balance in the fund is so low that a single case or two could deplete it,” Rossman-McKinney said. “We cannot and should not lead people to believe they will be compensated for their wrongful incarceration if we are unwilling to appropriate the necessary funds.”

Michigan Department of Treasury spokesman Ron Leix said last week the exoneration fund contained about $1.6 million — or $400,000 less than the $2 million it owes just one wrongfully convicted murderer, Richard Phillips. Phillips spent 46 years in prison before his case was overturned, making him the longest-serving wrongfully convicted inmate in U.S. history, according to the Innocence Clinic at the University of Michigan.

Continue reading →