History > 2014 > USA > States (I)

New York Rethinks

Solitary Confinement

FEB. 20, 2014
The New York Times
By THE EDITORIAL BOARD

The New York State prison system has for years been among the nation’s worst when it comes to the overuse of solitary confinement. At any given time about 3,800 inmates across the state are held in windowless isolation for 23 hours a day, the vast majority for disciplinary infractions. The average length of a stay in solitary is five months, and from 2007 to 2011, nearly 2,800 people were in solitary for a year or more.

On Wednesday, corrections officials took a major step toward reform by agreeing to new guidelines for the maximum length prisoners may be placed in solitary. The state will also curb the use of solitary for the most vulnerable groups of inmates: those younger than 18 will receive at least five hours of exercise and other programming outside their cell five days a week, making New York the largest prison system yet to end the most extreme form of isolation for juveniles. Solitary confinement will be presumptively prohibited for pregnant women, and inmates with developmental disabilities will be held there for no more than 30 days.

These changes come after a similar reform in the New York City jail system. In January, jail officials announced that they had stopped sending mentally ill inmates to solitary, where they spent an average of nearly eight weeks. Those inmates are now being diverted to psychiatric treatment in jail.

Wednesday’s agreement was the result of lawsuits by three prisoners, one of whom spent more than two years in solitary confinement for filing false legal documents. Those suits are now on hold, and will be settled within two years if two outside experts — one chosen by the Department of Corrections and one by the New York Civil Liberties Union, which is representing the plaintiffs — find that the reform efforts have succeeded. The experts will also issue recommendations on the role of solitary confinement in the prison disciplinary system.

But it shouldn’t take two years to confirm what has long been evident about the widespread and frequently unjust use of solitary confinement. While it may be necessary in very rare instances, it is almost never effective at changing an inmate’s behavior for the better.

A study published Feb. 12 in The American Journal of Public Health found that New York City jail inmates placed in solitary confinement were nearly seven times as likely to harm themselves as those in the general jail population. The effect was most pronounced among juveniles and the severely mentally ill.

It amazes me that professionals who have devoted their entire lives to managing and improving corrections facilities are only now even...

This will come as no surprise to most other advanced nations, where solitary confinement is used sparingly, if at all. A 2011 United Nations report called for the banning of the practice in all but extraordinary circumstances, and even then only for a maximum of 15 days.

Prison guards are opposed to the changes, fearing a breakdown in prison order and risk to their own safety. But states like Maine and Mississippi have substantially reduced the use of solitary as punishment without an increase in prison violence.

The rampant use of solitary is also financially unsustainable, often costing many times more than regular incarceration. Anthony Annucci, the acting commissioner of New York’s Corrections Department, was right to call the changes to solitary confinement policy both “more humane” and still protective of “safety and security.” Since 95 percent of prisoners eventually return to society, it is crucial that their treatment while in prison give them the best chance possible to succeed on the outside.

A version of this editorial appears in print

on February 21, 2014, on page A24 of the New York edition

with the headline: New York Rethinks Solitary Confinement.

    New York Rethinks Solitary Confinement, NYT, 20.2.2014,
    http://www.nytimes.com/2014/02/21/opinion/
    new-york-rethinks-solitary-confinement.html

States Cutting Weeks of Aid to the Jobless

JAN. 21, 2014
The New York Times
By ANNIE LOWREY

RIEGELWOOD, N.C. — After losing her job as a security guard in June, Alnetta McKnight turned to food stamps and unemployment insurance to support herself and her 14-year-old son. But her jobless payments ran out after 20 weeks, and now they are living on close to nothing.

“I worked for 26 years; I lost my job through no fault of my own,” Ms. McKnight said, sitting in her darkened living room — she keeps the lights off to save money — in this small town about 20 miles from Wilmington, N.C. “This is what I get?”

Had Ms. McKnight been laid off a year earlier, she almost certainly would have qualified for more than a year of unemployment insurance payments, helping keep her family out of penury while she sought another position. But last July, North Carolina sharply cut its unemployment program, reducing the maximum number of weeks of benefits to 20 from 73 and reducing the maximum weekly benefit as well.

The rest of the country is now following North Carolina’s lead. A federal program supplying extra weeks of benefits to the long-term unemployed expired at the end of 2013, and congressional Democrats failed in an effort to revive it. About 1.3 million jobless workers received their last payment on Dec. 28. Starting on Jan. 1, the maximum period of unemployment payments dropped to 26 weeks in most states, down from as much as 73 weeks.

The unemployment rate in North Carolina has plummeted since the state significantly reduced its unemployment benefits last July. Economists said that some of the reduction was due to jobless workers’ finding work, but more was due to workers’ dropping out of the labor force altogether.

With that move, the country’s safety net for jobless workers has undergone a sudden transformation, from one aimed at providing modest but sustained protection to workers weathering a tough labor market to one intended to give relatively short-term aid before spurring workers to accept a job, any job.

It is still early, but the results in North Carolina suggest that there are both gains and losses from cutting back on support for the jobless. The state’s unemployment rate has plummeted to 7.4 percent from 8.8 percent, the sharpest drop in the country. In part, that is because more jobless workers are connecting with work. But an even greater number of workers have simply given up on finding a job.

North Carolina’s move also highlights a sharp political divide that is now playing out on the national stage. In Washington, Democrats are making an election-year charge that Republicans are pulling the safety net from under struggling families at a time when the economy remains weak and is operating far below its potential.

“North Carolina still has a higher-than-average unemployment rate, so this is important to this state,” President Obama said last week as he unveiled plans for a new manufacturing research center in Raleigh. “Folks aren’t looking for a handout. They’re not looking for special treatment. There are a lot of people who are sending out résumés every single day, but the job market is still tough.”

Republicans, in response, say that Democrats have done nothing but make unemployment and poverty more comfortable, while overseeing scant job growth. They argue that what they see as overly generous government support only encourages dependency and that a thinner safety net would actually be more effective, pointing to North Carolina’s falling jobless rate as prime evidence.

“Employers were telling me they had vacant jobs, but people would say, ‘Hold that job until my unemployment benefits end.’ ” said Gov. Pat McCrory, a Republican who is the prime mover behind the policy. “I heard that time and time again. Now, employers are telling us that people are coming in and filling out applications to accept jobs, not to meet the requirements of unemployment.”

Nonpartisan economists said it was difficult to definitively show the impact of the change to the unemployment insurance program on the state’s labor market. Employment increased from June through November by more than 22,000 people (reaching a total of over 4.3 million). But for every worker who found a job, more than two dropped out of the labor force entirely, according to the latest survey by the Bureau of Labor Statistics, which recorded a decline of over 50,000 from June through November.

It is hard to separate the effects of the unemployment cutbacks from overall changes in the regional and national economy.

“We don’t have enough data to know what is happening for sure,” said Mark Vitner, who studies the regional economy for Wells Fargo.

He said it was clear, though, that some of the unemployed were prodded back to work. “If someone had been receiving unemployment benefits for a long enough time, odds are they exhausted their savings, and they’re probably going to go ahead and take a job they wouldn’t have been taking previously,” he said.

Nationally, economists expect the economy to respond much as North Carolina’s has. The unemployment rate, currently at 6.7 percent, is likely to fall further, both as the number of discouraged workers rises and as more unemployed workers accept positions. Michael Feroli of JPMorgan Chase has estimated that the loss of extended benefits might lead to a 0.25 to 0.5 percentage-point drop in the unemployment rate.

But statistics don’t tell the full story. North Carolina still has nearly 350,000 listed as officially unemployed, and many more, including those living in depressed rural areas, have given up even looking for a job. For them, the safety net is gone, and largely out of sight, countless families have slipped deeper into poverty.

That includes Ms. McKnight’s. She still applies for jobs every day, and is hoping to be retrained as a certified nurse’s assistant. But in the meantime, she has sold her son’s dirt bike. She has stopped sending money to her mother, who has cancer, or to her daughter in college. A friend sold a set of decorative car rims to help her pay her electric bill. She has started visiting a local food bank for groceries.

“Two interviews so far out of 150 applications,” Ms. McKnight said. “If unemployment were for a year or a year and a half, that’s enough time to get established and get a job. Now, it’s over before it starts. That’s not enough time to find a job in an economy as bad as it is.”

Even conservative proponents of the North Carolina policy said there were downsides along with the upsides: Many jobless workers are accepting jobs for far less pay than they made before, and in many communities, there are simply not enough jobs.

“We anticipated that in more urban areas, and with younger workers, there would be a bigger impact,” Governor McCrory said, pointing to improvements in the state’s major cities. By contrast, he said, rural areas might be hardest hit, and job retraining and economic development initiatives were what those areas needed.

For now, that is little consolation for those who have lost a critical lifeline. “Our economies have been deconstructed,” said the Rev. Mac Legerton, the executive director of the Center for Community Action, a nonprofit in nearby Lumberton, one of the poorest communities in the state.

“We’re having to build new economies, which takes a significantly long period of time,” he said. “The assistance from extended unemployment benefits really provides one of the very few support systems for people who’ve been impacted by decisions far beyond their control.”

A version of this article appears in print on January 22, 2014,

on page A1 of the New York edition with the headline:

States Cutting Weeks of Aid to the Jobless.

    States Cutting Weeks of Aid to the Jobless, NYT, 21.1.2014,
    http://www.nytimes.com/2014/01/22/business/
    states-cutting-weeks-of-aid-to-the-jobless.html

Ex-Governor of Virginia Is Indicted

on Charges Over Loans and Gifts

JAN. 21, 2014
The New York Times
By TRIP GABRIEL

Former Gov. Bob McDonnell of Virginia and his wife, Maureen, were indicted Tuesday by a federal grand jury on charges of accepting more than $140,000 in loans and gifts in exchange for promoting the business of a political patron who was seeking special favors from the state government.

The 14-count indictment filed by the United States attorney for the Eastern District of Virginia included charges of fraud and soliciting loans and gifts from Jonnie R. Williams Sr., the chief executive of Star Scientific, a maker of dietary supplements, who hoped to use the governor to promote his products.

The indictment accuses the McDonnells of accepting some $135,000 in cash from Mr. Williams, thousands of dollars in golf outings, designer clothing and a Rolex watch engraved “71st Governor of Virginia” on the back. It accuses the former first couple of lying about the gifts on loan statements and to government investigators.

Once a rising Republican star, mentioned as a possible running mate for Mitt Romney in 2012 and as an aspirant for his party’s 2016 presidential nomination, Mr. McDonnell has taken a spectacular fall since details of his relationship with Mr. Williams surfaced last spring. Under Virginia law, he was limited to one four-year term, but details of his relationship with Mr. Williams and the threat of his indictment colored the race to succeed him.

“Today’s charges represent the Justice Department’s continued commitment to rooting out public corruption at all levels of government,” the acting assistant attorney general, Mythili Raman, said in a statement. “Ensuring that elected officials uphold the public’s trust is one of our most critical responsibilities.”

At a news conference in Richmond on Tuesday night, Mr. McDonnell said he had been “falsely and wrongly accused” and that prosecutors had “stretched the law to its breaking point” to bring charges. He said he did no special favors for Mr. Williams. He appeared with his wife and took no questions.

Earlier, a lawyer for Ms. McDonnell, William Burck, said she was innocent.

Mr. McDonnell, who last summer announced that he was returning the gifts and loans, has long maintained that he never did anything for Mr. Williams or his company that he would not have done for any other Virginia business.

He apologized in his last address to the General Assembly on Jan. 8 for the scandal, which cast a shadow over the campaign of the Republican candidate who sought to succeed him, Kenneth T. Cuccinelli II. Mr. Cuccinelli lost in November to the current governor, Terry McAuliffe.

A lawyer for Mr. Williams, Jerry W. Kilgore, declined to comment. Mr. Williams stepped down as chief executive of Star Scientific last month and the company changed its name.

If convicted, the McDonnells could face decades in prison.

As detailed in the 43-page indictment, Mr. Williams ingratiated himself with the McDonells by giving them lavish gifts and loans, many of which it said Ms. McDonnell solicited with the promise that she and the governor could help his company.

Mr. Williams, an entrepreneur whose publicly traded company developed dietary supplements and cosmetics derived from a tobacco extract, sought to use the McDonnells to impress investors, as well as to enlist the governor’s support in winning state-funded research on his product.

In April 2011, the government charges, Ms. McDonnell asked Mr. Williams to buy her an Oscar de la Renta gown in New York for a political event at the Union League Club. She promised to seat him next to the governor.

Later that year, the indictment charges, Ms. McDonnell told Mr. Williams that she and her husband were having severe financial difficulties because of real estate investments in Virginia Beach. She asked for a $50,000 loan. Mr. Williams agreed to lend the money, telling the governor that “loan paperwork was not necessary,” according to the charges.

Shortly after, Mr. Williams paid $15,000 to cater the wedding of the McDonnells’ middle daughter, and Ms. McDonnell agreed to fly to Florida on Mr. Williams’s private jet to promote a dietary supplement called Anatabloc, made by Star Scientific.

“Thanks so much for all your help with my family,” the governor wrote to Mr. Williams, in an email included in the indictment. “Your very generous gift to [CM] was most appreciated as well as the golf round tomorrow for the boys,” he added, with “CM” apparently a reference to the governor’s middle daughter.

“Maureen is excited about the trip to fla to learn more about the products,” he added.

At the governor’s request, according to the indictment, the Virginia secretary of health asked policy advisers to meet with Mr. Williams, who was interested in having Virginia’s public universities conduct scientific studies of the health benefits of the active ingredient in Anatabloc, which he would be able to point to for investors.

In a meeting with the health policy adviser, Mr. Williams said he had discussed with the governor having the studies paid for by the State Tobacco Commission.

Later, when the governor met with a top state official about ways to reduce health care costs, Mr. McDonnell pulled out some Anatabloc from his pocket, said he took it personally and asked the official to “reach out to the ‘Anatabloc people’ and meet with them,” according to the indictment.

In the summer of 2011, when Mr. Williams offered a mountain lake home he owned to the McDonnells for a getaway, Ms. McDonnell asked if Mr. Williams’s Ferrari would be available for their use. Mr. Williams had an employee drive the car to the lake house for the McDonnells’ enjoyment, according to the indictment.

The government charges that after Ms. McDonnell met with investigators in February 2013, she wrote a note to Mr. Williams trying to cover her tracks by making it appear that she had agreed to return the designer luxury goods to him rather than keep them.

The governor was charged with routing Mr. Williams’s loans and other largess through family members and “corporate entities” to avoid revealing them on annual gift disclosure filings. When details of some of the gifts emerged publicly last year, Mr. McDonnell said they had been made to family members, not himself, and therefore he was not required to disclose them.

Speaking to radio listeners last spring, Mr. McDonnell said, “I think it’s important that the people of Virginia know that nothing has been done with regard to my relationship with Mr. Williams or his company Star Scientific to give any kind of special benefits to him or his company.”

Although Mr. McDonnell said he had returned all the gifts, the indictment includes a list of property that he and his wife would be required to forfeit if they are convicted. The list includes Mr. McDonnell’s silver Rolex, two gold Oscar de la Renta dresses, an Armani jacket and matching dresses, two pairs of Foot Joy golf shoes, a baby blue striped Peter Millar golf shirt, a Ping Kinloch golf bag, two sets of golf clubs, two iPhones and 30 boxes of Anatabloc.

A version of this article appears in print on January 22, 2014,

on page A10 of the New York edition with the headline:

Ex-Governor of Virginia Is Indicted

on Charges Over Loans and Gifts.

    Ex-Governor of Virginia Is Indicted on Charges Over Loans and Gifts,
    NYT, 21.1.2014,
    http://www.nytimes.com/2014/01/22/us/
    former-virginia-governor-and-his-wife-are-indicted.html

U.S. to Recognize

1,300 Marriages Disputed by Utah

JAN. 10, 2014
The New York Times
By CHARLIE SAVAGE
and JACK HEALY

WASHINGTON — The Obama administration on Friday made the latest contribution to a fast-moving legal battle over same-sex marriage rights as the Justice Department said that the federal government would recognize as lawful the marriages of some 1,300 same-sex couples in Utah even though the state government is largely refusing to do so.

The announcement furthered President Obama’s self-described evolution on same-sex marriage rights. He was once a politician who said he was “not in favor of gay marriage” and repeatedly invoked the rights of states to decide how marriage should be defined.

More recently, he said “I think same-sex couples should be able to get married,” and now his administration appears to be edging closer to confronting a state government over its refusal to recognize such rights.

The statement also provided a new twist in a fight that has pitted notions of individual equality against the right of states to define marriage as a majority of their voters see fit. It added to legal confusion surrounding the status of couples who married in a brief window after a Federal District Court judge unexpectedly struck down Utah’s ban on same-sex marriages last month, before the Supreme Court stayed the ruling on Monday, effectively shutting down any further same-sex nuptials in the state for the duration of the litigation.

Attorney General Eric H. Holder Jr. says the United States will recognize same-sex marriages officiated in Utah, despite a decision by the state not to do so.

“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” said Attorney General Eric H. Holder Jr. in an unusual video announcement on the Justice Department website. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

Same-sex couples in Utah had rushed to marry after Dec. 20, when Judge Robert J. Shelby of Federal District Court in Utah overturned the state’s voter-approved ban on marriage for gay couples. Utah unsuccessfully petitioned two lower courts to halt those weddings, then succeeded in persuading the United States Supreme Court to issue a stay while the state appeals.

On Wednesday, Gov. Gary R. Herbert announced that the ban, an amendment to the Utah Constitution, was back in legal force while the litigation continued, something that could take years. During that time, he said, the state would not recognize or confer new marital benefits to those same-sex couples who had married.

But with Friday’s announcement, same-sex couples in Utah who married will be able to file joint federal income tax returns and will be eligible for other spousal benefits, like health insurance for the families of federal employees and the ability to sponsor a noncitizen spouse for a family visa.

Mr. Herbert’s office issued a mild response, saying that the Justice Department’s decision “comes as no surprise” and that state agencies would treat such couples as married when they are administering federal, though not state, benefits. No examples were listed.

“Adherence to the rule of law, both federal and state as those laws govern respectively, is an unbending principle of this administration,” the statement said.

Some groups opposed to same-sex marriage denounced the Justice Department decision. Brian Brown, the president of the National Organization for Marriage, said in a statement that the move was “outrageous,” adding that “the Department of Justice under this administration signals that it simply has no regard for the Constitution and the rule of law.”

In Utah, gay couples and supporters of same-sex marriage cheered the federal government’s move. Many were disappointed and angered by the state’s decision not to recognize their new marriages, and have argued that, despite the continuing legal battle, their nuptials are just as valid as any other in Utah.

“It feels like a little victory after the last couple days with our governor,” said Austin Vance, who married his partner last month at the Salt Lake County clerk’s office, with hundreds of other gay couples. “It definitely raises spirits a little bit. It was disturbing that our governor would make those assertions that we wouldn’t be recognized.”

“We’re going to continue to file and act as if we’re married,” he added. “Some people have said that’s an act of civil disobedience. If it is, so be it.”

Mr. Holder did not detail the administration’s legal reasoning, although he invoked the “spirit” of a ruling in June by the Supreme Court that struck down a law banning federal recognition of same-sex marriages that states considered legal. That ruling ended what had been the federal practice of distinguishing between same-sex and opposite-sex married couples based on the federal Defense of Marriage Act.

The Obama administration decision has created a kind of mirror image to that situation: The federal government will treat two sets of Utah couples equally, while their state will treat them differently.

Michael C. Dorf, a Cornell University law professor, said it was unclear why the federal government’s view could trump Utah’s. “I’m extremely sympathetic to the pro-equality judgment underlying Holder’s statement, but I’m dubious about the legal authority in light of the apparently contrary decision by Utah,” Mr. Dorf said in an interview, although he listed several possible theories supporting the Justice Department’s action on his legal blog.

A Justice Department official said that earlier this week, Mr. Holder assigned Stuart F. Delery, the assistant attorney general for the Civil Division, to study the legal options. Mr. Delery concluded Friday morning that the federal government could recognize the interim marriages as valid for the time being, the official said.

The administration’s theory appears to be that even though Utah is not conferring any new benefits on same-sex couples who married, the state has not taken steps to indicate that it currently considers the marriages void, either. For example, Utah has said it will not try to invalidate new driver’s licenses that it already granted to gay or lesbian newlyweds who changed their last names, or spousal health benefits it already approved for same-sex spouses of state employees.

And on Thursday, Utah’s attorney general, Sean D. Reyes, told county clerks to complete the administrative task of mailing marriage certificates for same-sex couples “whose marriages were solemnized” during the interim period, even though the state “cannot currently legally recognize marriages other than those between a man and a woman.”

Mr. Reyes wrote that one purpose of following through on issuing the certificates is to allow such couples “to have proper documentation in states that recognize same-sex marriage,” suggesting that the state government believes that the certificates it issued to same-sex couples may be considered valid by other jurisdictions.

Still, Utah will not grant any new benefits for couples who had not yet applied for them. That decision is likely to be challenged in court by couples seeking to change their names, legally adopt their children, get spousal health coverage, or file a joint income-tax return with the state.

Jeffrey Gomez, for example, waited too long to change his name after marrying his partner last month.

“We missed that little window,” he said Friday. “Everything has been so sudden and so topsy-turvy.”

Charlie Savage reported from Washington,

and Jack Healy from Denver.

A version of this article appears in print on January 11, 2014,

on page A1 of the New York edition with the headline:

U.S. to Recognize 1,300 Marriages Disputed by Utah.

    U.S. to Recognize 1,300 Marriages Disputed by Utah, NYT, 11.1.2014,
    http://www.nytimes.com/2014/01/11/us/politics/same-sex-marriage-utah.html

What’s the Matter With Kansas’ Schools?

January 7, 2014
The New York Times
By DAVID SCIARRA
and WADE HENDERSON

KANSAS, like every state, explicitly guarantees a free public education in its Constitution, affirming America’s founding belief that only an educated citizenry can preserve democracy and safeguard individual liberty and freedom.

And yet in recent years Kansas has become the epicenter of a new battle over the states’ obligation to adequately fund public education. Even though the state Constitution requires that it make “suitable provision” for financing public education, Gov. Sam Brownback and the Republican-led Legislature have made draconian cuts in school spending, leading to a lawsuit that now sits before the state Supreme Court.

The outcome of that decision could resonate nationwide. Forty-five states have had lawsuits challenging the failure of governors and legislators to provide essential resources for a constitutional education. Litigation is pending against 11 states that allegedly provide inadequate and unfair school funding, including New York, Florida, Texas and California.

Many of these lawsuits successfully forced elected officials to increase school funding overall and to deliver more resources to poor students and those with special needs. If the Kansas Supreme Court rules otherwise, students in those states may begin to see the tide of education cuts return.

Kansas’ current constitutional crisis has its genesis in a series of cuts to school funding that began in 2009. The cuts were accelerated by a $1.1 billion tax break, which benefited mostly upper-income Kansans, proposed by Governor Brownback and enacted in 2012.

Overall, the Legislature slashed public education funding to 16.5 percent below the 2008 level, triggering significant program reductions in schools across the state. Class sizes have increased, teachers and staff members have been laid off, and essential services for at-risk students were eliminated, even as the state implemented higher academic standards for college and career readiness.

Parents filed a lawsuit in the Kansas courts to challenge the cuts. In Gannon v. State of Kansas, a three-judge trial court ruled in January 2013 for the parents, finding that the cuts reduced per-pupil expenditures far below a level “suitable” to educate all children under Kansas’ standards.

The judges also found that the Legislature was not meeting even the basic funding amounts set in its own education cost studies. The judges called the school funding cut “destructive of our children’s future.”

To remedy the funding shortfall, the judges ordered that per-pupil expenditures be increased to $4,492 from $3,838, the level previously established as suitable.

Rather than comply, Governor Brownback appealed to the Kansas Supreme Court. A decision is expected this month.

A victory for the parents would be heartening, but if it comes, would Governor Brownback and legislative leaders uphold the right to education guaranteed to Kansas school children?

The signals thus far are not promising. If the Kansas Supreme Court orders restoration of the funding, legislators are threatening to amend the state’s Constitution by removing the requirement for “suitable” school funding and to strip Kansas courts of jurisdiction to hear school finance cases altogether. And if the amendment fails, they have vowed to defy any court order for increased funding or, at the very least, take the money from higher education.

A court-stripping constitutional amendment, and defiance of a state Supreme Court order, would shred the very fabric of Kansas’ government and send shock waves through state capitals across the nation. It would allow elected branches to avoid any responsibility to adhere to the language and interpretation of their state constitutions by the courts. It would gravely undermine judicial independence and shut the courthouse door to vulnerable children who, as a last resort, seek legal redress to vindicate their fundamental right to an education.

As the Gannon trial judges noted, matters such as education are placed in constitutions because they are “intended for permanence” and “to protect them from the vagaries of politics.”

Kansans rightfully take pride in their strong public school system. But as Kansas goes, so may go the nation. The Kansas Constitution, like those in other states, demands that every child be given the educational opportunity to meet his or her promise. This requires, at a minimum, adequate and suitable school funding. Governor Brownback and legislators must meet the constitutional command and, by so doing, advance the core American value of equal opportunity for all.

David Sciarra is the executive director

of the Education Law Center.

Wade Henderson is the president and chief executive

of the Leadership Conference on Civil and Human Rights.

    What’s the Matter With Kansas’ Schools?, NYT, 7.1.2014,
    http://www.nytimes.com/2014/01/08/opinion/
    whats-the-matter-with-kansas-schools.html

Access to Abortion Falling

as States Pass Restrictions

January 3, 2014
The New York Times
By ERIK ECKHOLM

A three-year surge in anti-abortion measures in more than half the states has altered the landscape for abortion access, with supporters and opponents agreeing that the new restrictions are shutting some clinics, threatening others and making it far more difficult in many regions to obtain the procedure.

Advocates for both sides are preparing for new political campaigns and court battles that could redefine the constitutional limits for curbing the right to abortion set by the 1973 Roe v. Wade decision and later modifications by the Supreme Court.

On Monday, in a clash that is likely to reach the Supreme Court, a federal appeals court in New Orleans will hear arguments on a Texas requirement that abortion doctors have admitting privileges at local hospitals — a measure that caused one-third of the state’s abortion clinics to close, at least temporarily.

Advocates for abortion rights, taking heart from recent signs in Virginia and New Mexico that proposals for strong or intrusive controls may alienate voters, hope to help unseat some Republican governors this year as well as shore up the Democratic majority in the United States Senate.

Anti-abortion groups aim to consolidate their position in dozens of states and to push the Senate to support a proposal adopted by the Republican-controlled House for a nationwide ban on most abortions at 20 weeks after conception.

“I think we are at a potential turning point: Either access to abortion will be dramatically restricted in the coming year or perhaps the pushback will begin,” said Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia University.

The anti-abortion groups, for their part, feel emboldened by new tactics that they say have wide public appeal even as they push the edges of Supreme Court guidelines, including costly clinic regulations and bans on late abortions.

“I’m very encouraged,” said Carol Tobias, president of National Right to Life. “We’ve been gaining ground in recent years with laws that are a stronger challenge to Roe.”

“I think it is more difficult to get an abortion in the country today,” she said.

The new laws range from the seemingly petty to the profound. South Dakota said that weekends and holidays could not count as part of the existing 72-hour waiting period, meaning that in some circumstances women could be forced to wait six days between their first clinic visit and an abortion.

Laws passed last year by Arkansas and North Dakota to ban abortions early in pregnancy, once a fetal heartbeat was detected, were hailed by some as landmarks if quickly rejected by federal courts. But bans on abortion at 20 weeks, also an apparent violation of constitutional doctrine, remain in force in nine states.

In Roe and later decisions, the Supreme Court said that women have a right to an abortion until the fetus is viable outside the womb — at about 24 weeks of pregnancy with current technology — and that any state regulations must not place an “undue burden” on that right.

In 2013 alone, 22 states adopted 70 different restrictions, including late-abortion bans, doctor and clinic regulations, limits on medication abortions and bans on insurance coverage, according to a new report by the Guttmacher Institute, a research group that supports abortion rights.

Anti-abortion legislation in the states exploded after the major conservative gains in the 2010 elections, the report said, resulting in more than 200 measures in 30 states over the last three years.

Americans United for Life, an anti-abortion group, has a similar count, describing the flood of new laws as “life-affirming legislation designed to protect women from the harms inherent in abortion.”

Twenty-four states have barred abortion coverage by the new health exchanges and nine of them forbid private insurance plans, as well, from covering most abortions.

A dozen states have barred most abortions at 20 weeks of pregnancy, based on a theory of fetal pain that has been rejected by major medical groups. Such laws violate the viability threshold and have been struck down in three states, but proponents hope the Supreme Court will be open to a new standard.

A partial test is expected this month, when the Supreme Court announces whether it will hear Arizona’s appeal to reinstate its 20-week ban, which was overturned by federal courts.

Many legal experts expect the court to decline the case, but this would not affect the status of similar laws in effect in Texas and elsewhere. Still, those on both sides are watching closely because if the court does take it, the basis of four decades of constitutional law on abortion could be upended.

“If they take the Arizona case, it seems like at least four of the justices are willing to reconsider the viability line as the point at which states can ban abortions,” said Caitlin Borgmann, an expert on reproductive rights at the City University of New York School of Law.

The many strands of attack came together in Texas, which in a tumultuous special session in July required doctors performing abortions to have local hospital admitting privileges, imposed costly surgery-center standards on abortion clinics, sharply limited medication abortions and adopted a 20-week ban.

The admitting privileges requirement immediately forced about one-third of some 30 clinics in the state to stop performing abortions and left much of South Texas without any abortion clinics.

A federal judge called the rule medically unnecessary and halted enforcement, but the state appealed successfully to the United States Court of Appeals for the Fifth Circuit to reinstate it pending a trial.

On Monday, that appeals court, in New Orleans, will hear arguments. The case against the rule, being argued by groups including Planned Parenthood, the Center for Reproductive Rights and the American Civil Liberties Union, was supported in a brief by the American Medical Association and the American College of Obstetricians and Gynecologists, which said it served no valid purpose.

Texas officials asserted that the requirement promotes safety and that any burdens on women have been exaggerated. Some Supreme Court justices have already said that they expect eventually to hear the case.

Courts have temporarily blocked similar admitting-privilege requirements in Alabama, Mississippi, North Dakota and Wisconsin.

Another provision of the Texas law with potentially vaster impact, set to take effect in September, imposes surgery-center standards for clinics, even those that perform only the safest early-stage procedures or nonsurgical medication abortions. The requirement could leave the state with as few as eight abortion centers, according to Planned Parenthood.

“Any one of the restrictions passed in the last several years would be bad, but taken together, we are witnessing a catastrophe for Texas women,” said Cecile Richards, president of the Planned Parenthood Federation of America.

Amid all the setbacks, abortion rights groups say they see encouraging signs.

A referendum to impose a 20-week ban in Albuquerque was defeated. Although Texas adopted some of the country’s most stringent controls, State Senator Wendy Davis’s filibuster in June energized women and led to her campaign for governor.

In Virginia, these groups say, Attorney General Kenneth T. Cuccinelli II’s strong anti-abortion stance became a liability, contributing to his defeat in the governor’s race.

“I honestly believe we have shifted the momentum,” said Ilyse Hogue, the president of Naral Pro-Choice America.

Ms. Hogue predicted that candidates less hostile to abortion rights would put up strong races against Republicans running for governor in, for example, Ohio, Michigan, Wisconsin and Kansas.

Ms. Tobias, of National Right to Life, responded, “The other side is getting more people activated, but so are we.”

The proliferation of state restrictions is recreating a legal patchwork.

“Increasingly, access to abortion depends on where you live,” said Jennifer Dalven, director of the reproductive freedom project at the American Civil Liberties Union.

She added, “That’s what it was like pre-Roe.”

    Access to Abortion Falling as States Pass Restrictions, NYT, 3.1.2014,
    http://www.nytimes.com/2014/01/04/us/
    women-losing-access-to-abortion-
    as-opponents-gain-ground-in-state-legislatures.html

Allowed to Join the Bar,

but Not to Take a Job

January 2, 2014
The New York Times
By JENNIFER MEDINA

LOS ANGELES — As a teenager in Northern California, Sergio Garcia worked in the almond fields and in a grocery store, earning his way through college and then law school. He passed the California bar exam on his first try, something just half of all candidates do.

But when it came time to apply for his law license, Mr. Garcia encountered a formidable hurdle: Because he had come from Mexico illegally, he could not become a lawyer.

That changed Thursday when the California Supreme Court ruled unanimously that a law passed last fall by the Legislature allowed Mr. Garcia, 36, to be admitted to the state bar and practice law. What it did not do is address the fact that under federal law, no law firm, business or public agency can legally hire him.

The strange turn of events demonstrates the complicated patchwork of immigration laws that is emerging as Congress remains stalled on an overhaul of the immigration laws and states and courts are stepping in and deciding what rights should be granted to the estimated more than 11 million immigrants living illegally in the country.

Courts in Florida and New York are grappling with similar cases involving immigrants seeking to become lawyers, and Robert M. Morgenthau, the former district attorney of Manhattan, has urged New York’s governor and Legislature to pass a law like California’s.

And while California has gone farther than many others, several states have begun to expand opportunities for immigrants living here illegally, after a wave of laws passed several years ago in Alabama, Arizona and Georgia and other states to crack down on illegal immigration. Unauthorized immigrants can receive in-state college tuition in several states, and 11 states and the District of Columbia now allow such immigrants to obtain some kind of driver’s license, according to the National Immigration Law Center.

Mr. Garcia, in a telephone interview, said he felt that despite the ambiguities, he would be free to open his own practice. “I can finally fulfill my dream and also leave behind a legacy so that an undocumented student 20 or 30 years from now will take it for granted that they can be an attorney,” he said. “There’s a lot to celebrate. I can open my own law firm, and that’s exactly what I intend to do. There’s no law in this country restricting entrepreneurs.”

In its ruling, the court said that California had paved the way for Mr. Garcia’s admission to the bar in October when the Legislature overwhelmingly passed a bill saying qualified applicants could be admitted to the state bar regardless of their immigration status. The court went on to suggest that immigration status should not be considered any differently from, say, race or religion.

“We conclude that the fact that an undocumented immigrant’s presence in this country violates federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the state bar,” Chief Justice Tani Cantil-Sakauye wrote in her opinion. “The fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the state bar.”

But in its lengthy ruling, the court appeared to leave aside the issue of employment, saying only that “we assume that a licensed undocumented immigrant will make all necessary inquiries and take appropriate steps to comply with applicable legal restrictions and will advise potential clients of any possible adverse or limiting effect the attorney’s immigration status may pose.”

Although the federal government argued in a brief that Mr. Garcia could not work as an independent contractor, several immigration lawyers said that he would legally be allowed to open his own practice and charge clients willing to pay.

The Obama administration’s Deferred Action for Childhood Arrivals, which allows immigrants under 31 who were brought here by their parents to live and work legally in the United States, is likely to create more appeals to state bar associations from would-be lawyers without permanent legal status.

Jose Manuel Godinez-Samperio, 30, whose parents brought him from Mexico to Florida on a tourist visa, has spent the last year working as a paralegal while the Florida courts consider whether his immigration status should prevent him from being admitted to the state bar.

“This is a case to give me hope,” Mr. Godinez-Samperio said. “If it is true for someone here without legal status, then how much more so for someone who has the right to work here?”

Cesar Vargas made honors at both college and law school in New York City, his home since coming to the United States from Mexico at age 5. He was an intern for a State Supreme Court justice, a Brooklyn district attorney and a congressman. Although he passed the state bar exam, the question of whether he should be allowed to practice law, the association said, should be left to the courts or the Legislature.

Until 2008, the California Bar did not ask applicants for their immigration status, and experts say that several other unauthorized immigrants are already working as lawyers here and in other states. While the State Supreme Court considered Mr. Garcia’s case, the state bar association submitted two other names of unauthorized immigrants seeking admission.

Mr. Garcia, who was brought by his parents from Mexico when he was 17 months old, moved back and forth. When he returned for good at 17, he applied for a legal visa using his father, now a legal permanent resident, as a sponsor, and the court estimated that under current immigration laws it would be several years before he could get a visa.

Michael A. Olivas, an immigration law professor at the University of Houston who submitted an amicus brief supporting Mr. Garcia’s case, said that there are most likely dozens more people like Mr. Garcia who will look to enter state bar associations in the coming years. He said that in California, which has more law schools and more Latinos than any other state, the ruling could have a huge impact.

“We’re in a whole new world — it shows that at the edges, many of the kids who are going to be first in line if there is any real immigration reform are going to make an immediate contribution,” he said. “It is clear that along every step of the way people knew he wanted to hang out his shingle as a lawyer. No other green light needs to be put in place for him to take on a client tomorrow.”

For several years, Mr. Garcia has made his living as an inspirational speaker. He plans to focus on personal injury and debt negotiations cases and hire other lawyers. “My dream has always been to be a litigator,” he said. “I want to be in front of a judge.”

    Allowed to Join the Bar, but Not to Take a Job, NYT, 2.1.2014,
    http://www.nytimes.com/2014/01/03/us/
    immigrant-in-us-illegally-may-practice-law-california-court-rules.html

Colorado Stores

Throw Open Their Doors to Pot Buyers

January 1, 2014
The New York Times
By JACK HEALY

DENVER — Colorado embarked on a bold experiment on Wednesday with legalizing marijuana, as shops from downtown Denver to snowy ski resorts began selling the once-illicit drug to any adult with proper identification and a hankering for a hit of Blue Diesel or Kandy Kush.

To supporters, it was a watershed moment in the country’s tangled relationship with the ubiquitous recreational drug. They celebrated with speeches and balloons, hailing it as akin to the end of Prohibition, albeit with joints being passed instead of champagne being uncorked.

To skeptics, it marked a grand folly, one they said would lead to higher drug use among teenagers and more impaired drivers on the roads, and would tarnish the image of a state whose official song is John Denver’s “Rocky Mountain High.” The governor of Colorado and the mayor of Denver both opposed legalization, and stayed away from the smoky celebrations on Wednesday.

While some 20 states allow medical marijuana, voters in Colorado and Washington State decided last year to go one step further, becoming the first in the nation to legalize small amounts of the drug for recreational use and regulate it like alcohol. Ever since, the states have been racing to devise rules detailing how to grow it, sell it, tax it and track it.

In both Colorado and Washington, recreational marijuana has been legal for more than a year. Adults can smoke it in their living rooms, and eat marijuana-laced cookies without fear of arrest. In Colorado, they are even allowed to grow up to six plants at home. But until Wednesday, dispensaries could sell only to customers with a doctor’s recommendation and state-issued medical-marijuana card.

Now, any Colorado resident who is 21 can buy up to an ounce of marijuana at one of the 40 dispensaries that began selling to retail customers on Wednesday. Out-of-state visitors can buy a quarter-ounce, but they have to use it within the state. Carrying marijuana across state lines remains illegal, and the plant is not allowed at the Denver International Airport.

“This is our dream,” said Kirstin Knouse, 24, who flew here from Chicago with her husband, Tristan, to take their first-ever marijuana vacation. She said that she suffered from seizures and fibromyalgia, and her husband from post-traumatic stress, but that the couple had not been able to get medical marijuana at home. “We’re thinking about moving here because of it,” she said.

Washington’s marijuana system is at least several months behind Colorado, meaning that fully stocked retail shelves probably will not be a reality at the consumer level until perhaps June.

While Colorado incorporates the existing medical marijuana system, Washington is starting from scratch, with all of the production and sale of recreational marijuana linked to the new system of licenses, which will not be issued until late February or early March.

“After that, it’s up to the industry to get it up and running,” said Mikhail Carpenter, a spokesman for the Washington State Liquor Control Board, which regulates the system and is processing almost 5,000 license applications to grow, process or sell.

Growers can start a crop only after they get a license, Mr. Carpenter said, and retailers can sell only marijuana produced in-state by licensed growers when that crop comes in.

With the advent of legal, recreational marijuana, Colorado and Washington have become national petri dishes for drug policy. Their successes or failures will be watched closely by Arizona, Alaska, California, Oregon and other states flirting with the idea of liberalizing their marijuana laws.

Questions still abound. Will drug traffickers take marijuana across state lines, to sell elsewhere? Will recreational marijuana flow from the hands of legal adult consumers to teenagers? Will taxes from pot sales match optimistic predictions of a windfall for state budgets? What will happen to the black market for marijuana?

Skeptical federal authorities are also paying attention. Although marijuana remains illegal under federal law, the Justice Department has given a tentative approval for Colorado and Washington to move ahead with regulating marijuana. But it warned that federal officials could intervene if the state regulations failed to keep the drug away from children, drug cartels or federal property, and out of other states.

Kirk Johnson contributed reporting from Seattle.

    Colorado Stores Throw Open Their Doors to Pot Buyers,
    NYT, 1.1.2014,
    http://www.nytimes.com/2014/01/02/us/
    colorado-stores-throw-open-their-doors-to-pot-buyers.html