Supreme Court Fails Victims Again

The Gilmer Free Press

The Supreme Court has a very mixed track record when it comes to protecting women. As a domestic violence advocate, Criminologist, and activist for a decade, I am deeply concerned that the U.S still fails to prioritize women’s safety. Given that globally more women ages 15-45 die from men’s violence than of cancer, malaria, war and traffic accidents combined, far more needs to be done to protect women and girls. The courts can and should play a far bigger role in doing so.

In 2000, the court overturned part of the Violence Against Women Act (VAWA) that allowed women to sue their abusers in federal court. So, we can sue darn near anyone for anything, just not the people who hurt us most deeply. In 2005, the court ruled in Castle Rock v. Gonzales that a town and its police cannot be sued for failing to enforce a restraining order. Jessica Gonzales, now Lenahan, had a permanent restraining order against her husband Simon, who had been stalking and harassing her. Simon was prohibited from seeing her son (not his biologically) and the couple’s three daughters except during specified visitation times. Simon violated that order by taking the three girls on June 22, 1999 around 5:15 PM. Jessica first called the police about two hours later, then proceeded to call multiple times and visit the station in person over the next several hours. The police took no action, even though Simon had called Jessica admitting he had the girls at an amusement park in Denver. At approximately 3:20 AM, Simon showed up at the Castle Rock police station and engaged in a shoot-out with police that left him dead. The police then noticed the bodies of the three girls in his vehicle. The court held 7-2 that the Colorado statute did not require that police actually enforce restraining orders.
What?! Absolutely insane.

Gonzales and her attorneys took the case before the Inter-American Commission on Human Rights, which ruled that the Supreme Court had erred and that the U.S was violating Gonzales’ human rights through this decision. The IACHR cited international human rights treaties and agreements that urge states to exercise due diligence to prevent, investigate, and punish acts of violence against women and to address shortcomings in legislation that fail to protect women.

In 2014, the court seemed to improve, as it determined in United States v. Castleman that a state law requiring persons convicted of misdemeanor domestic violence, even when it did not involve force, must still surrender their firearms per federal law. In doing so, the court used a broad interpretation of domestic violence, recognizing it as more than physical.

Yet the court screwed up again, although this time on a case not specifically about abuse. On June 1, 2015, in Elonis v. United States it ruled 7-2 that a man’s threats to his wife via Facebook were not such a big deal, as there was no indication that he intended to threaten her. In one of the first cases to address free speech via social media, the court rejected the “reasonable person” standard that is typical in cases of verbal threats. Anthony Elonis of Bethlehem, Pennsylvania was convicted in 2012 and the conviction was upheld by Third Circuit U.S. Court of Appeals in 2013. The court did not specify what would actually constitute a threat via social media. Instead, its decision was related to the statute on which Elonis was convicted. The federal statute, 18 U. S. C. §875(c), says that anyone who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” has committed a felony punishable by up to five years in prison. Elonis served 44 months. The statute does not specify that the individual intended to make a threat nor that a court must determine his or her mental state.

Among Elonis’s gems to his wife, Tara, was: “There’s one way to love ya, but a thousand ways to kill ya, And I’m not going to rest until your body is a mess, Soaked in blood and dying from all the little cuts. Hurry up and die #####.” A judge determined this was indeed threatening and granted her a restraining order requiring that Elonis not only stay away from his wife physically but that he also cease contacting her online or posting anything about or to her. Yet three days after the restraining order hearing he was at it again, posting a joke, and then a week later writing, “Fold up your protective order and put in your pocket. Is it thick enough to stop a bullet?” He then posted that he wanted to “make a name for himself” with “the most heinous school shooting ever imagined.” This caught the attention of FBI agent Denise Stevens, who paid Elonis a visit. Even that didn’t stop him, as he posted after she left: “Little agent lady stood so close. Took all the strength I had not to turn the ##### ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin’ from her jugular in the arms of her partner.” Elonis contended that his posts were in the form of rap music and thus were merely expressive.

In failing to address the fact that Elonis persisted in these hateful and scary comments after the restraining order was issued, the court again protected abusers, not victims. One of the first things a domestic violence advocate knows is that if an abuser is making claims that he intends to hurt his partner, we should go ahead and presume he will at some point act on them.


A column by Attorney General Patrick Morrisey
The Gilmer Free Press

As West Virginia’s Attorney General, it’s my duty to stand up for the legal rights of our state and its people.

That’s why when President Barack Obama’s Environmental Protection Agency launched an aggressive assault last June to impose onerous federal regulations requiring states to reduce carbon dioxide emission by a staggering 30% in 15 years, which would do significant harm to our economy, my office launched an equally aggressive assault to block them.

We have helped to develop a coalition of 15 states to fight this unlawful power grab by anti-coal Washington bureaucrats.

Earlier this week, a three-judge panel decided that because the Administration has yet to formally finalize the rule, it was too early to decide the case on its merits. While we were disappointed in this outcome, we believe this early effort exposed the weaknesses of the EPA’s arguments, which will help us later on as we press this case.

Once the rule is finalized, which is expected to occur later this summer, we can continue our fight – and it’s important we do.

This rule has already caused real harm to West Virginia. As I travel this state, I meet people who have lost their jobs and are struggling with what to do next.

Power companies are deciding to shut down coal-fired plants instead of retrofitting them to comply with regulations. Mines are shutting down because they’re losing the customers to sell coal to.

At 7%, West Virginia now has the second-highest state unemployment rate in the country. For more than a year, our state’s unemployment rate has been rising while the national rate has declined.

On the county level, unemployment rates are higher than 8% in 26 counties and greater than 10% in 12 of those counties, many of them in coal country.

Our state’s labor force now stands near its smallest size since the early 1990s. Decades of economic progress have been erased as thousands of West Virginians drop out of the labor force.

And it’s not just our hard-working coal miners who are losing their jobs. The pain is now beginning to extend to other professions.

Many professions that have traditionally done business with coal operators are laying off workers and downsizing their offices. This means fewer well-paying, professional jobs are available for this year’s class of college graduates, meaning they – like too many classes before them – will have to leave the state to find work.

This is not a problem being faced only in the rural coalfields. In downtown Charleston, for example, office vacancies are near their highest level in a decade. That puts pressure on the property owners who have worked to improve the business climate.

Our state Department of Revenue has said sales tax collections are beginning to slow, a sign consumers are losing confidence in the economy and cutting back spending at retail stores. That could mean more job losses at local shops and small businesses.

Yes, there are uncontrollable market forces at play that have pressured the coal industry. But the EPA and Obama Administration’s anti-coal policies in recent years have pushed us beyond the typical boom-and-bust economic cycle of coal. This is an attempt to permanently bankrupt an entire industry – a campaign promise this President is determined to fulfill.

These policies are not just hurtful, they are illegal and fly in the face of Congress’s intent when lawmakers wrote the Clean Air and Clean Water acts.

That’s why my Office will continue to not just fight, but take the lead on challenging these unlawful regulations head-on in court until our last legal avenue has been exhausted.

We owe it to the people who have gone underground and labored long and hard hours in order to keep our lights on to make sure their livelihoods are protected and that they’re able to continue putting food on the tables for their families each night.

We owe it to the future college graduates, who want to live and work in the state they’ve grown up in and love. We owe it to everyone who strives to work hard and better themselves and the lives of those around them.

That’s what we’re standing up for – people’s livelihoods and a brighter tomorrow for all West Virginians.

It’s a fight I’m intent on winning.

Low-Income School Districts Need More, But Many Are Starved Instead

The Gilmer Free Press

Fairness in school funding is “the sleeper civil rights issue of our time,” says Leadership Conference on Civil Rights president Wade Henderson. But it’s clear from a new report by the Education Law Center that this issue comes with a loud alarm: In many states around the country, the children who need the most support in order to succeed in school are actually getting the least.

Not only have states been generally slow to restore the cuts to public school funding that they made during the 2007-2008 economic downturn, but there are often extreme disparities between the per pupil spending in wealthy school districts and low-income districts.

“In Vermont, Wyoming, and North Dakota, high-poverty districts receive only about 80 cents for every dollar in low-poverty districts, while in Nevada high-poverty districts receive a startling 48 cents to the dollar,” the report said. Eleven other states had “regressive” funding patterns, 10 states had no significant difference in funding between low-income and high-income districts, and 15 states had “progressive” funding practices that resulted in low-income districts receiving more per pupil than higher-income districts.

“The four most progressive states — South Dakota, Delaware, Minnesota, and New Jersey — provide their highest-poverty districts, on average, with between 30% and 38% more funding per student than their lowest-poverty districts,” the report said.

Why does this matter? Because a child born into poverty needs more public support than a child born into a financially well-off family. Study after study has drawn a direct correlation between student achievement and poverty. When a child is less likely to have educational resources at home, is less likely to have a well-educated parent with the time to help the child learn, and is more likely to come to school malnourished, it makes sense that public school funding steps up to compensate.

Or so one would think.

The reality is that the way school systems are funded – primarily through local property taxes – guarantees that wealthy districts will have more to spend on their children than districts with concentrated poverty, unless states intervene to require that money from wealthy districts be used to help elevate children who don’t have the same advantages.

For those who think there is a red state-blue state contrast on this issue, the reality is mixed. Among the states that get an “F” in school funding fairness includes the blue state of Maryland as well as deep-red Texas and swing states Iowa and Pennsylvania. The states with an “A” rating include Louisiana, but that is no doubt the result of vigorous fights between school activists and Republican Gov. Bobby Jindal, who is a leading proponent of “school choice” and critic of public schools.

It’s also important to note that some states – Florida is a good example – appear to be more fair in distributing school funding only because their across-the-board cuts in public school funding hit wealthy districts harder than low-income districts. “Funding in Florida’s wealthiest districts dropped over $3,400 between 2007 and 2012, while the highest-poverty districts lost less than $700,” the report said.

Another school funding measure the report examines is “effort,” or the percentage of a state’s gross domestic product that is devoted to education. That index ranged from a high of 5% in Vermont and West Virginia to a low of 2.3% in Delaware.

“Even with improvements in the economy, few states are translating that economic growth into greater investments in school funding,” the report said. “While total GDP has rebounded to 2008 levels or higher in all states except Nevada and Wyoming, 20 states invested fewer total dollars into the education system. Despite the economic rebound in most states, the Effort index remains below 2008 levels in all states except Connecticut, Wyoming, Illinois, and West Virginia.”

In the face of statistics like these, you can expect at least some of the Republican presidential candidates to say – as former Texas Gov. Rick Perry infamously did during his 2012 campaign – that the federal Department of Education is one of the agencies they will remember to say they will shut down once in office. It’s a promise that should not necessarily be taken literally, but it serves as a proxy for the mindset that these systemic funding inequities between states and between rich and poor districts within states are not a national concern.

But, as the report concludes, “sustaining investments in education is important to the long-term vitality of a state’s — and the nation’s — civic and economic health and well-being.” Making sure that we’re not only spending what we should on education but assuring that the students who need the most get the most should not only be a state responsibility, but a top national priority.

~~  Isaiah Poole ~~

How Do We Hold a Child’s Mind Accountable?

The Gilmer Free Press

We humans are a morally messy species, constantly jostling one another at the marketplace of desires. But we also have built-in restraints. We know we are moral agents who will be held responsible when the pursuit of our own desires causes others harm. You break it, you buy it.

It is worth remembering these enduring truths as the glare of public attention once again spotlights the latest trials of the century. That glare can obscure some pretty clear lines the law has drawn over the last 5,000 years, including the differences between motive and excuse, and responsibility and punishment.

Just because a criminal has a perfectly good explanation for his harmful actions — I’m poor and angry, I am a heroin addict, I was doing it to please my friends or family — doesn’t mean we excuse those actions. That wouldn’t be a very sensible way to regulate the crowded marketplace of desires. The law excuses crimes only in a few very narrow kinds of circumstances, generally when those circumstances are so extreme that any reasonable person faced with them would also act criminally. The father forced by kidnappers to rob a bank under the threat they will kill his kidnapped son.

Insanity is another kind of extreme excuse. Many of us may doubt psychiatry’s ability to ferret out the truly delusional from the fakers. But we should broadly be able to agree that if we could reliably diagnose the fellow who shoots a man he really thinks is a space alien bent on killing all humans, he should not be held as responsible as the fellow who shoots a man he knows is just a man having an affair with his wife.

My friend and MacArthur colleague Stephen Morse has coined a term for the mistake of conflating motive, or more broadly any cause, with excuse. He calls it “the psycho-legal error,” and it is rampant in both popular and academic discussions of criminal responsibility. Few of us would be persuaded by a killer’s lawyer who argued that his client didn’t pull the trigger because it was his client’s finger that did it, or his client’s finger muscles, or the motor neurons leading to those muscles. Yet when we follow those neurons all the way up to the brain, suddenly any unusual condition of the brain becomes the moral agent, the excuse. “It wasn’t my client who pulled the trigger, it was his brain tumor.”

Sorry, but unless and until we know substantially more about how brains cause behaviors, and in particular how certain brain defects might affect the psychologies pertinent to responsibility, this defense of “my brain made me do it” will, or at least should, never go anywhere. Even if we were certain of the causal link, cause isn’t excuse. It couldn’t be. Brains “cause” all behaviors.

Some aspects of the debate about juvenile responsibility are a form of the psycho-legal error. “It wasn’t my client, it was his unformed prefrontal cortex.” We do not know nearly enough about the brain to be able to distinguish reliably between a 17-year old with a fully developed brain and a 29-year old with an underdeveloped one. Or to know whether any “underdevelopment” has anything at all to do with responsibility. So we are forced to draw arbitrary lines. In Roper v. Simmons, the Court drew the line that 17-year old killers cannot be executed. It’s not an unreasonable line but it is an arbitrary one, and of course the controversy in that case was whether it was a constitutionally mandated one.

The psycho-legal error often masks a different kind of error in statistical reasoning. When I teach Roper v. Simmons to my law and neuroscience students, I ask them to raise their hands if they were once teenagers. Then I ask them to keep their hands up if, when they were teenagers, they broke into a woman’s house, kidnapped her, tied her up and threw her off a bridge into a river while she was still alive (which is what Mr. Simmons did). We have no rational basis on which to say that Mr. Simmons’s presumably underdeveloped or otherwise dysfunctional prefrontal cortex “caused” him to do this unspeakable crime.

Debates about juvenile justice also sometimes mix up responsibility with punishment. We hold our own children responsible for their actions from about the time they learn to talk. English common law drew the line of criminal responsibility at age seven. Indeed, holding children responsible for their actions is one of the important ways we teach them to become responsible adults. In this sense, it is more important to hold children responsible than adults.

It is also becoming increasingly clear that our brains come pre-equipped with deeply held, and largely cultural-invariant, moral intuitions. Even infants have a rudimentary moral knowledge, distinguishing, and preferring, images of “helping” behaviors from those of “hurting” behaviors. We not only hold children responsible, they are generally responsible.

Punishment is quite something else. Humans have an unbroken tradition of gauging the punishment not just to fit the crime but also to fit the criminal. We hold almost everyone responsible for their crimes regardless of their individual situations, but then take those individual situations into consideration when we impose punishment. A 10-year-old shoplifter and a 19-year-old armed robber are both responsible, even though we punish them very differently. We’d have no right to punish them at all, whether as parents or a justice system, unless we first held them responsible.

Notorious trials make riveting theater, but they can also be good reminders of the challenges we face as intensely social species with big strategic brains, bumping into each other as we live our lives and try to follow the rules. Universal and enduring principles of criminal responsibility, including the commands that motive is not excuse and responsibility is not punishment, have helped us, and should continue to help us, navigate these challenges.

~~  Morris Hoffman - A state trial judge in Denver, a member of the John D. and Catherine T. MacArthur Foundation’s Research Network on Law and Neuroscience, and the author of The Punisher’s Brain: The Evolution of Judge and Jury (Cambridge)  ~~

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