Supreme Court Reinvestigates Compliance of Lethal Injection with the 8th Amendment

Last week the Supreme Court halted the execution of Christopher Scott Emmett in Virginia hours before the procedure was to take place. Since agreeing in September to hear the case Baze V. Rees, a case that investigates whether execution by lethal injection is in accordance with the 8th amendment, the Supreme Court has granted several stay of executions in anticipation of the upcoming case. During this time period, many question if any executions, since most states currently use lethal injection, will be carried out without appeal. 

To read more about Emmett, visit the Washington Post article. 

Affirmative Action for LGBTQ?

On the Docket will be hosting a forum at Georgetown University's undergraduate campus addressing the issue of whether or not the LGBTQ community should have preference in college and higher education admissions. Both sides of the issue will be represented at the forum.

Participants in the forum will hear from the LGBTQ Resources Director, Bill McCoy, a Senior Director of Admissions, Jaime Briseno, and Director of the Institute for Diversity, Equality, and Affirmative Action, Marjorie Powell.

The purpose of the forum is to understand the campus climate at Georgetown and perceptions of the LGBTQ community after two hate crimes occurred on campus against this segment of the student population.

The Supreme Court Refuses to Weigh National Security against Liberty

Last week the Supreme Court refused to grant certiorari to the case of Khaled el-Masri, who asserts the United States government tortured him while in Afghanistan. He claims that he was detained in 2003 while in Macedonia and later transported to Afghanistan to be tortured. His case would have presented two issues to the Supreme Court. If Mr. Masri had been taken to Afghanistan to be tortured, his case would affirm the United States' use of extraordinary rendition. Several international conventions prohibit the use of extraordinary rendition, or the movement of a person from one state to another, typically one that permits the use of torture. Among these is the United Nations Convention against Torture, which the United States ratified in 1994.

The second issue for the court would have been the need to balance national security ("State secrets privilege") and Mr. Masri's right to bring his case before the federal judiciary. As the Supreme Court declined to hear Mr. Masri's case, they affirmed the supremacy of national security in this particular case. The concern for organizations such as the American Civil Liberties Union, as the New York Times article reports, is the pervasive effect that the decision not to hear the case may have.

Strict Scrutiny for LGBTQ?

Due to a new study that is currently being conducted by DePaul University in Chicago, LGBTQ may get their day in court as a class of people protected under strict scrutiny. According the NY Times article, the study may show that homosexuality is an immutable characteristic. The article reads:

"The Cabreras hope the findings will help silence critics who say homosexuality is an immoral choice.

If fresh evidence is found suggesting genes are involved, perhaps homosexuality will be viewed as no different than other genetic traits like height and hair color, said Julio, a student at DePaul University in Chicago.

Adds his brother, ''I think it would help a lot of folks understand us better.''

The federally funded study, led by Chicago-area researchers, will rely on blood or saliva samples to help scientists search for genetic clues to the origins of homosexuality. Parents and straight brothers also are being recruited.

While initial results aren't expected until next year -- and won't provide a final answer -- skeptics are already attacking the methods and disputing the presumed results.

Previous studies have shown that sexual orientation tends to cluster in families, though that doesn't prove genetics is involved. Extended families may share similar child-rearing practices, religion and other beliefs that could also influence sexual orientation.

Research involving identical twins, often used to study genetics since they share the same DNA, has had mixed results.

One widely cited study in the 1990s found that if one member of a pair of identical twins was gay, the other had a 52 percent chance of being gay. In contrast, the result for pairs of non-twin brothers, was 9 percent. A 2000 study of Australian identical twins found a much lower chance.

Dr. Alan Sanders of Evanston Northwestern Healthcare Research Institute, the lead researcher of the new study, said he suspects there isn't one so-called ''gay gene.''

It is more likely there are several genes that interact with nongenetic factors, including psychological and social influences, to determine sexual orientation, said Sanders, a psychiatrist.

Still, he said, ''If there's one gene that makes a sizable contribution, we have a pretty good chance'' of finding it.

Many gays fear that if gay genes are identified, it could result in discrimination, prenatal testing and even abortions to eliminate homosexuals, said Joel Ginsberg of the Gay and Lesbian Medical Association.

However, he added, ''If we confirm that sexual orientation is an immutable characteristic, we are much more likely to get the courts to rule against discrimination.'''

Many of the predominant reasons given for not striking down laws regarding prohibition of same-sex marriage for example rely upon the fact that the LGBTQ segment of our population are not protected under strict scrutiny which requires that the law be "narrowly tailored" and have a "compelling interest." Right now, at best, LGBTQ are protected under a degree of scrutiny called "rational basis." All this analysis requires for a law to pass constitutional muster is that it be reasonably related to an important governmental objective. In the case of same-sex marriage, this "important governmental objective" has been said to be a concern for the proper environment in which to rear children (with a mother and father).

Update on RIAA Ruling

Apparently, $222,000 in fines is "constitutionally excessive." According to the lawyer representing the woman fined for illegally sharing copyrighted songs, the sum of money is just too much to ask for. Check out the article here.

Some of the highlights are found below:

"The Minnesota woman a federal jury dinged $220,000 for pirating 24 copyrighted songs asked the trial judge on Monday to set aside the verdict on the grounds the judgment is unconstitutionally excessive.

It's a novel theory that, if successful, could undermine the Recording Industry Association of America's litigation machine that has sued thousands of alleged pirates.

The petition (.pdf) to U.S. District Judge Michael Davis, among other things, challenges the constitutionality of the 1976 Copyright Act, the law under which the RIAA sued Jammie Thomas of Minnesota, as well as over 20,000 other defendants. The $750 to $150,000 fines the act authorizes for each download is unconstitutionally excessive and against U.S. Supreme Court precedent, wrote Brian Toder, Thomas' attorney.

The RIAA said the argument is "baseless." In pretrial court documents in a New York federal copyright case against a Brooklyn woman, the RIAA acknowledged that such an argument might kill its zero-tolerance suing machine by making "it economically unsound for any copyright owner to seek to protect its copyright interests.'"

Clarence Thomas on Race

Much has been made of Justice Thomas' recent release of his autobiography "My Grandfather's Son." Critics and liberals alike of the Justice criticize him for selling out to the Republican Party and also being a hypocrite--striking down many of the policies which helped him get to the very seat that he sits in. He responds to these criticisms in this short segment from 60 Minutes after the release of his autobiography.

File Sharing Ruling Shows Sharing Isn't Always Caring

An NY Times article reports that a federal district court in Minnesota has fined a woman over $200,000 for sharing files on a music downloading program called Kazaa.

The article reads:

"In a crucial legal victory for record labels and other copyright owners, a federal jury yesterday found a Minnesota woman liable for copyright infringement for sharing music online and imposed a penalty of $222,000 in damages. The verdict against Jammie Thomas of Brainerd, Minn., brought an end to the first jury trial in the music industry’s protracted effort to rein in piracy with lawsuits against individual computer users. Since 2003, record labels have brought legal action against about 30,000 people, accusing them of trafficking in copyrighted songs.

Many of the people sued in such cases settle out of court for, on average, about $4,000, according to the industry’s trade association. Ms. Thomas chose to face trial instead, saying that she did not share files on the Kazaa network as the labels contended. She and her lawyer declined to comment after leaving the courthouse.

The jury verdict, which called for $9,250 in damages for each of the 24 songs involved in the trial, came after brief deliberations."

The ruling by the federal district court appears to reaffirm jurisprudence laid out in the USSC decision in Metro-Goldwyn-Mayer v. Glotsker, Ltd. (2005). There the Court reasoned that:

"When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement."

New Surveillance Bill Still Presents Privacy Issues

The fight to strike a balance between security and liberty continues this week as the Democratic Congress introduces a new surveillance bill that will give a secret court the power to issue general warrants for the purpose of investigating foreign targets. The bill is in response to the Protect America Act, which permitted investigations without a warrant. Unfortunately, the bill still draws question as to whether the security measures are a direct violation of the 4th amendment, specifically the prohibition of general warrants. However, Congress simply views the at as an improvement upon the current status of foreign surveillance measures.

Read more about the issue in the Washington Post article "Democrats to Offer New Surveillance Rules."

Congress Investigates CIA Toruture Policy by Seizure of Justice Department Documents

Congress seized Justice Department documents in order to discover whether the President has authorized torture techniques banned by the Detainee Treatment Act of 2005. Since memorandums exposed by the New York Times first alerted Congress to this issue, the Democratically-controlled legislature has pressured the Justice Department to more readily disclose documents. The situation begs the question as to whether the executive branch has taken the opportunity to disrupt the balance of power with the unique situation the War on Terror has presented to the government.

For more information about the issue, the New York Times article can be found here.

On the Docket to See Case Dealing with Scope of Presidential Power

On Wednesday, October 10th On the Docket will be taking Georgetown undergraduates down to see Medellin v. Texas. Details of the case are as follows:

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), I.C.J. No. 128 (judgment of Mar. 31, 2004), the International Court of Justice determined that 51 named Mexican nationals, including petitioner, were entitled to receive review and reconsideration of their convictions and sentences through the judicial process in the United States. On February 28, 2005, President George W. Bush determined that the United States would comply with its international obligation to give effect to the judgment by giving those 51 individuals review and reconsideration in the state courts. However, the Texas Court of Criminal Appeals held that the President’s determination exceeded his powers, and it refused to give effect to the Avena judgment or the President’s determination. This case presents the following questions:

1. Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States’ treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican nationals named in the judgment?

2. Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?

We will meet at the GUTS bus stop in front of Leo's at 6am and be back on campus by 12 noon. Breakfast will be provided for those who come to the case. Sign up now by emailing onthedocket@georgetown.edu!

Some Upcoming Cases of Note

The media have been very talkative lately about a 1) death penalty case 2) voter ID and 3) several cases dealing with detainees in the upcoming term. The NY Times' Linda Greenhouse predicts that that this upcoming term will be marked by severe disagreement among the justices and lots of dissent.

Take a look at what Greenhouse has to say here.