Law Blog

Chicago’s Mental Health Institutions

Chicago’s Mental Health Institutions
by Maggie Sivit

Image courtesy of Chicago News Cooperative

Last month, Chicago’s Public Health Department went ahead with its plan to shut down 6 of the city’s 12 mental health clinics.

“We’re not pulling back from service,” insisted Mayor Rahm Emanuel. “In fact, we’re giving more service to more people.”

The decision to consolidate Chicago’s psychiatric clinics is part of a larger trend in state budget cuts for mental health-related services. Illinois faces an intimidating $3 billion in unpaid bills, and lawmakers are looking to trim extraneous expenses wherever possible. As a result, the state has reduced mental health spending by twelve percent – $71 million – over the past three years. [1] The city of Chicago alone has seen a $33.5 million cutback in mental health care spending during that time; according to city officials, the closure of the six clinics in April will save an additional $3 million.

“Saying that they’re going to save money doing this is kind of short-sighted,” countered Dr. William Sullivan, ER physician at University of Illinois Medical Center in Chicago.[1] Sullivan worries that patients with nowhere to go will end up in the emergency room – or even prison – when they stop receiving treatment and can no longer manage their own mental health. The American Journal of Psychiatry estimates that when one includes the indirect expenses of incarceration, ER treatment, homelessness, etc., the cost of mental health-related issues in the U.S. may total upwards of $200 billion annually.[2] These unintended expenses, Sullivan believes, may end up costing the city more money in the long run.

Beyond the economic impact of the clinics’ closures, there are the potential social costs of increased crime and unemployment rates, lower education attainment, and strain on family life. Mental Health Movement (MHM), an affiliate of Southside Together Organizing for Power (STOP), is a Chicago-based mental health advocacy group that has been vocal about the negative impact the loss of the clinics will have on the community. “The transition plan is not working,” says Sophia Kortchmar, a member of MHM. “People are falling through the cracks.”[3] The movement is calling for the restoration of the six clinics, which its supporters see as a “lifeline to the city.”[4]

Unfortunately, it appears that many people were falling through the cracks even before the clinics closed in April. Even if the city could have raised $3 million to keep the newly shuttered clinics open, it may only have served to keep a broken system from dying. Mental health organizations are undoubtedly starved for funding and in need of government support, but the system itself is also in need of reform.

One of the biggest issues with the current system is the large role prisons are forced to play when individuals with mental health disorders are incarcerated. This view is echoed by Tom Dart, sheriff of Cook County, who says the mental health care system “is so screwed up that I’ve become the largest mental health provider in the state of Illinois.”[5] Prison officials do not have the necessary training and are often ill equipped to manage – much less treat – mentally ill prisoners. Jeffry Murphy, a retired Chicago police officer and a consultant in crisis-intervention training, says that the state is effectively “re-institutionalizing the mentally ill by incarcerating them.”[5]

The current mental health care system was born out of the Community Mental Health Services Act of 1963 (CMHA), signed into law by President Kennedy. The bill called for the closure of large, state-run psychiatric institutions, replacing them with smaller community health clinics.[6] CMHA marked a shift in the standard for mental health care, as well as of the public perception of mental illness. However, the federal grant money that was available in the 60’s has long since disappeared, leaving city government coffers in a lurch.

However, Mayor Emanuel and other city officials hope that smaller, community-based facilities will soon step in to replace the shuttered clinics. Private mental health organizations – as well as the remaining clinics – will each receive a half million dollars to hire more psychiatrists and improve care. Ideally, while the quantity of public facilities may decrease, the quality of care will improve, and private clinics will be able to offer a more personal, intimate environment for their patients.[3]

It seems like a stretch of the imagination to think that decreased funding will result in increased care, but Mayor Emanuel insists that the primary goal of the consolidation of mental health clinics is not financial. Rather, it is about increasing the efficiency and quality of psychiatric services – particularly by allowing therapists to spend more time with their patients.[3]

Transitional periods such as this one are not, historically, particularly smooth or uncomplicated. The deinstitutionalization of mental health care that began in the 60s under the CMHA was plagued by concerns similar to those being voiced by members of the Mental Health Movement today in response to the closure of the six Chicago clinics – namely, that too many people will slip through the metaphorical cracks and that the transition will not be worth the human cost.  With the state strapped for cash – and parties on both sides of the argument understandably frustrated – there is little anyone can do other than finger-pointing; lawmakers blame Illinois Governor Pat Quinn for the budget cuts, Gov. Quinn blames the General Assembly, Republicans blame the Democrats, and Democrats blame the economy.[7]

The Ramifications of President Obama’s Gay Marriage Support

The Ramifications of President Obama’s Gay Marriage Support
By Julia Reinitz

Courtesy of Toledo Blade

Many Americans rejoiced on May 9^th, 2012, when President Obama became the first U.S. President to publicly support gay marriage. The announcement comes at a time of political highs and lows for the gay community, amidst a messy system of state and federal laws on LBGTQ rights. Currently in the United States, it is legal for same-sex couples to get married in Vermont, New Hampshire, Massachusetts, Connecticut, New York, D.C., and Iowa. An additional thirteen states allow at least a limited form of civil union. In 2012, both Maryland and Washington passed laws allowing gay marriage. However, voters in these states will face referendums in November that look to repeal these laws. The issue is also on the ballot in Maine (where there will be a referendum to overturn a 2009 referendum that overturned a pro-gay marriage law) and Minnesota (where voters will decide whether to overturn a constitutional amendment prohibiting same-sex marriage).

This mess of legislation and endless referendums only applies to whether states will recognize same-sex marriages. At the federal level, the 1996 Defense of Marriage Act (DOMA) defines marriage as a union between one man and one woman. DOMA prevents the federal government from officially recognizing same-sex marriages. While the Obama administration has stopped enforcing the law, it is still a serious barrier to same-sex couples receiving marriage-related benefits from the federal government, such as the ability to file taxes jointly.

In the courts, the 9^th Circuit Court of Appeals ruled that California’s Prop. 8, which banned same-sex marriage, unconstitutionally violated the 14^th Amendment’s Equal Protection clause. While the 9^th Circuit’s decision was narrowly written so as to only apply to California’s law, there has been much speculation in the legal community as to whether the Supreme Court will take up the issue, and if so what the ruling might be.

So, where does Obama’s support for same-sex marriage lie in this mess? What practical consequences will it have for same-sex couples? The answers to these questions depend primarily on (1) whether Obama is reelected and (2) whether the legality of gay marriage is ultimately decided in the courts or in Congress.

Obama’s reelection is critical to his support for gay marriage producing any tangible gains. It is highly unlikely that the president will push any legislation or initiatives on issues other than the economy between now and the election. It is even more unlikely that Obama would push legislation on a controversial issue like gay marriage during a campaign year. If he takes action on this issue, it will be during his second term in office.

At the same time, it remains unclear whether the issue of same-sex marriage will finally be settled in the courts or in Congress. It is possible that the Supreme Court will use the challenge to California’s Prop. 8 to issue a broad ruling on the subject. However, some legal scholars have suggested that such a broad ruling would backfire, producing backlash similar to that seen after Roe v. Wade. Such logic is compelling, as the legalization of gay marriage in a handful of states has led to the banning of gay marriage in a thirty-one states. If the courts choose to decide the issue, it is unlikely that President Obama’s support for gay marriage will significantly mitigate this backlash, as his views will be just as demonized as the court ruling by anti-gay marriage advocates.

However, if the issue is settled in Congress, then Obama’s opinion will have a tremendous impact. If Obama were to make the repeal of DOMA and/or the passage of a pro-gay marriage bill a legislative priority for Democrats in Congress, it is very possible that same-sex marriage could become legal. President Obama has already shown an incredible ability to win on certain pieces of controversial legislation, specifically with the enactment of his health care plan. Furthermore, it is not unreasonable to think that Obama might push gay marriage legislation as a way to create a legacy similar to Lyndon Johnson’s passage of the Civil Rights Act of 1964.

Regardless of the gains that may come from Obama’s support of same-sex marriage, it is right to laud the president for his announcement. At the very least, Obama’s discussion of how his values have ‘evolved’ further open the discussion for most Americans on their own ‘evolving’ values. In 2003, the topic of gay marriage was still something to be discussed in hushed tones. Regardless of legal progress, or lack thereof, it is undeniable that supporters of gay marriage and gay rights in general have made tremendous ideological progress. The increasing openness of the gay community has worked to increase the acceptance of same-sex couples. Majorities in sixteen states have been reported to support gay marriage, and this is largely because of the influence of continuing national dialogue about gay rights issues.

Julia Reinitz is a first year in the College.

Lee Roy Jordan et al v. NFL: The Casualties of War in American Football

Lee Roy Jordan et al v. NFL: The Casualties of War in American Football
By Maggie Sivit

University of Chicago Archives

In 1905, Shaller Mathews, dean of the University of Chicago Divinity School, christened American football “a boy-killing, man-mutilating, money making, education prostituting, gladiatorial sport.”

In November of that same year, Harold Moore, a student and football player at Union College, died of a cerebral hemorrhage following a head-on collision with a player from New York University. Moore’s father had come to NYU to watch his son at the game; instead, he had to watch as his boy collapsed into a fit of convulsions – until the young man finally stopped moving entirely. The highly publicized tragedy caused a tidal wave of public outcry, and it did not seem unreasonable to think that football would be resigned to the annals of American sports culture by 1910.

The survival of the sport is often credited to President Theodore Roosevelt – a devoted football fan himself – who called a meeting with coaches from Harvard, Princeton and Yale, urging them to make the sport less dangerous. Since 1905, football has seen dozens of reforms (the mandatory use of helmets, for instance, came in 1939). At the same time, the brutality of the sport is part of what makes it so appealing; Roosevelt himself was known to have valued this aspect of the game, remarking:

I believe in outdoor games, and I do not mind in the least that they are rough games, or that those who take part in them are occasionally injured. I have no sympathy whatever with the overwrought sentimentality which would keep a young man in cotton-wool, and I have a hearty contempt for him if he counts a broken arm or collar-bone as of serious consequence when balanced against the chance of showing that he possesses hardihood, physical address, and courage.

In the past few decades, however, it has become clear that the possibility of a broken arm or clavicle is the least of a football player’s worries; depression, dementia and other long-term (and often incurable) neural complications have become more pressing concerns.

Dallas Cowboys Hall-of-Famers Randy White and Rayfield Wright are the latest to join the concussion lawsuits against the National Football League. To date, there have been 64 concussion-related lawsuits filed against the NFL, which include over 1,300 plaintiffs.[1] The complaint, Lee Roy Jordan et al v. NFL, contains four separate counts: negligence, fraudulent concealment, negligent misrepresentation, and conspiracy. Plaintiffs allege that the NFL intentionally concealed the “causal connection” between head injuries sustained while playing professional football and long-term health problems.

One of these lawsuits was filed by Ray Easterling, former safety for the Atlanta Falcons. Easterling played for the Falcons from 1972 to 1979, and was part of the “Gritz Blitz” defense that set the record for fewest points allowed during a season. Easterling’s wife says she first noticed that her husband was experiencing memory problems and mood swings twenty years ago; over the past two decades, Easterling’s symptoms of depression and dementia have continued to escalate – until last Thursday, April 19^th, when Easterling was found dead from a self-inflicted gunshot wound.[2]

Dr. Bennet Omalu, neuropathologist and Chief Medical Examiner in San Joaquin County, California, was the first to document chronic traumatic encephalopathy – a type of long-term neurological damage previously observed in professional boxers – in a football player: former Pittsburgh Steelers center Michael Webster.[3] The primary indicator of CTE is a high concentration of a protein called tau in brain tissue; deposits of tau are also considered to be a hallmark of other neurodegenerative disorders, including Alzheimer’s disease. Although there is not currently enough evidence to suggest causation between football injuries and tau protein build-up, Omalu has subsequently diagnosed CTE in 8 out of the 9 former football players he has autopsied – a strong indicator that he is on to something.

Following the recent exposure of the New Orleans Saints’ “bounty” system – cash compensation to players for injuring particular opponents during games – the NFL has taken a harsh stand towards those implicated in the program. Saints head coach Sean Payton has been suspended for all of next season, and former defensive coordinator Gregg Williams has been banned indefinitely.[4] Furthermore, players involved may stand to face criminal charges.[5]

The severity of the reaction is due, in part, to the fact that the league can’t afford to sink deeper into its resurfacing reputation as a brutal, dangerous sport. Increasing public awareness of the depression, memory loss, mood swings, sleep problems, and dementia – all symptomatic of CTE – suffered by former NFL players is creating an undercurrent of wariness towards the sport, especially at the youth and high school level. One of the most disconcerting findings to date, in fact, has been in the brain of an 18-year-old; neuropathologist Ann McKee of Boston University found alarming concentrations of tau during the autopsy of a high school football player. Unless safety equipment can be radically improved, and recovery practices changed to ensure players have healed sufficiently before returning to play, football will be headed toward an impasse similar to the one it faced back in 1905: reform or die.

Social Media in the Illinois Courtroom

Social Media in the Illinois Courtroom
By Jenna Rozelle

Last week Judge Charles Burns of Cook County banned all spectators, press included, from “tweeting” in his courtroom during the upcoming trial of William Balfour[1]. Balfour was charged with the murder of singer Jennifer Hudson’s mother, brother and nephew in late 2008[2].  The high profile case began on April 23, 2012 and according to Burns, the use of Twitter will be absolutely prohibited during the proceedings. While this demand is supported by the Illinois Supreme Court, the state has recently been pushing towards an increase in social media within its  courtrooms. This particular incident is indicative of the larger debate over the use of instantaneous social media within courtrooms in Illinois and across the country.

Courts are using Twitter to make cases more accessible to the public.

As it stands, the state of Illinois does not allow social media coverage in courtrooms with to Rule 63(A)(7) stipulating that “Coverage of trial court proceedings is prohibited” according  of the Illinois Supreme Court, which demonstrates that Judge Burns is fully within his rights to ban social media use in his courtroom [3]. However, in January 2012 the Illinois Supreme Court began allowing cameras in courtrooms on an “experimental basis,” allowing high profile cases to become more accessible to the masses[4]. This experiment shows that the state is interested in allowing the public to see the ins and outs of a typical Illinois Courtroom. Despite the new experimental measures that permit cameras to record trials, Judge Burns still banned all live tweeting in his courtroom. He allowed tweeting in the overflow room, however, where reporters are able to sit and listen to a live audio feed of the proceedings. This measure raises questions about how the state of Illinois should handle trials in the future.

The question of whether or not to allow social media as a method of trial coverage in courtrooms is being asked more and more frequently, not just in Illinois, but across the nation. This trend can largely be explained by an increase in social media usage. There are more than 140 million active twitter users in the United States alone, which is more than a third of the nation’s population[5]. Major news networks such as CNN, Fox, and MSNBC all use Twitter to deliver blurbs of current event information in 140 characters or less[6]. In Illinois, exceptions to the Supreme Court law have been made in the past. Last year in Whiteside County, during the trial against Nicholas Sheley, Twitter updates were permitted from within the courtroom. Even more recently, U.S. District Court Judge James Zagle allowed tweeting during the retrial of Rod Blagojevich[7]. These are two examples of Illinois trials where Twitter was used to make cases more accessible to the public without any of the negative repercussions over which Judge Burns expressed concern.

Although many judges in Illinois are making exceptions for Twitter in their courtroom, Judge Charles Burns still reserves the right to prevent its usage within his own. Burns banned tweeting in his courtroom because of his concern that the continuous use of smart phones will distract the jurors and disrupt the proceedings. Confidentiality is another large issue associated with live tweeting in the courtroom. Tweeted pictures of a juror prompted a Kansas judge to declare a mistrial just a few weeks ago[8]. In high profile cases the identities of jurors is purposefully kept secret until after the trial in order to protect them. The availability of Twitter, specifically via smartphones, makes it easier for people watching the trial unfold to snap a picture and post it online. This puts the jurors at risk for possible violence or harassment when they are allowed to leave the court at the end of the day.

Tweeting is an unregulated form of information publication available to every citizen in the United States with a Twitter account. Therein lies another potential issue: trial fairness. With cases that are highly publicized it is increasingly more difficult to find people to constitute an unbiased jury. Twitter makes opinions about the courts more accessible to the public, which helps regular citizens stay informed, but also makes it more difficult for jurors to remain unbiased throughout the proceedings. By reading external opinions about the proceedings in a case, jurors are likely to be influenced, ruining the chance for a fair trial. During a high profile case, the news and court reportage as well as individual opinions, are expected to appear on television screens so jurors know to avoid these media outlets during a trial. However, jurors would not expect to see these reports and opinions on Twitter because social media is generally used for keeping in touch with acquaintances rather than staying up-to-date with legal issues. This could expose jurors to opinions that might ultimately taint their views on the trial despite their honest intentions. Judge Randall of the District Court of Douglas County in Nebraska has addressed some of these exact issues. He believes that it is implausible to expect jurors to be completely disengaged from social media without any sort of personal repercussions. His solution to bias and identity leakage is to educate the jurors about smart phone usage. In order to ensure a fair trial, Judge Randall proposes that lawyers and judges band together to form an orientation type of education that teaches the jurors how to use social media responsibly in the courtroom so as to allow the defendant and plaintiff their constitutional rights[9].

On the other hand, there are advantages to tweeting and using other forms of social media in the courtroom. Tweeting from the courtroom provides valuable information to U.S. citizens who cannot be in the courtroom as the trial occurs. Tweeting during trials not only portrays the judicial system in a more realistic way than most TV shows, but it also provides a more accurate and up to date flow of information from the courtroom into the homes of 140 million others. Tweeting has been used harmlessly in other high profile cases as well. A very well-known case this past year was People of the State of California vs. Conrad Robert Murray. In this trial Dr. Conrad Murray was charged, and subsequently found guilty, of the involuntary manslaughter of Michael Jackson. During that trial the local ABC news station alone sent out approximately 1,900 tweets to over 3,000 followers. This is an example of how tweeting can be used responsibly in courtroom situations. Each of those followers was kept well-informed about the trial proceedings thanks to Twitter[10].

Casey Anthony (Photo credit: Orlando Police Department)

The 2011 trial of Casey Anthony was widely publicized through media outlets, attracting widespread attention and interest. For those who wished to follow the proceedings and experience the drama inside the Orlando courtroom, many television channels provided live video coverage of the trial for them to follow. The Florida Supreme Court allows electronic media coverage of trials, including at least one television camera[11]. The media frenzy surrounding the Casey Anthony trial was very difficult and potentially harmful for the jurors who were exposed to media coverage and varying opinions about the case. At the same time, however, the media frenzy was positive because it made the judicial system more accessible to the general public[12]. The public had the opportunity to follow the case, hear witness testimonies, see attorneys in action, and gain knowledge about how the court system actually works in practice. Through the increase in media coverage, the public could debate their own beliefs on the case based on the exact evidence presented in the courtroom. Without such extensive coverage, the public would have lost the opportunity to gain this insightful and firsthand knowledge on the judicial system.

Tweeting has the potential to both harm and benefit the judicial system. The state of Illinois seems to be in favor of moving towards a more publicized trial so that its citizens can become more involved. However, if more judges like Judge Burns have their way, this attempt will be futile. Ultimately, the question of who has the power to decide whether or not Twitter is allowed in the courtroom remains unanswered. The state Supreme Court can try to regulate social media usage but the variability of each case may necessitate that this regulation is determined on a case-by-case basis. Nevertheless, concerning the public dissemination of knowledge, the facts that Twitter has entrenched itself as so vital a cultural keystone has proved beneficial, though we must now take its effects in the courtroom seriously and decide for our judicial system whether to tweet or not to tweet.

Jenna Rozelle is a first-year in the College.

Australia’s Plain-Packaging Tobacco Legislation

Australia’s Plain-Packaging Tobacco Legislation:
High Court Hearings and Its International Implications
By Bavo Stephens

Katryce Lassle

The Australian High Court has been holding hearings as to whether or not to uphold Australia’s new cigarette plain packaging law. Major tobacco companies, including Philip Morris, Imperial Tobacco Australia, British American Tobacco, and Japan Tobacco International, have challenged the law’s constitutionality, arguing that the law will allow the Australian government to illegally acquire valuable intellectual property. If the law is upheld, the government will require all cigarettes to be sold in the same drab olive packaging plastered with graphic images that portraying the health risks of smoking.

The law effectively bans cigarette companies from putting their brands and trademarks on cigarette packages. Instead all cigarette sold in the country will have the same standard packet; the only distinguishable markers between cigarette brands will be the product’s name. But even that will be regulated, with all brand names appearing in the same standard colour, position, font, size, and style.

The tobacco industry claims  by banning them from placing their brand and trademarks on cigarette packages, the Australian government has illegally acquired their intellectual property and undermined their ability to legitimately do business, and has done so without just compensation. The law is furthermore expected to significantly cut the industry’s revenues in Australia.

However, a High Court decision over the packaging laws is expected to arrive relatively quickly according to Professor Gillian Triggs at Sydney Law School. The tobacco companies, she explains, will argue that they are entitled to just compensation because their property will be taken away. Just compensation in a situation where one’s property is taken away is a provision in the Australian constitution very similar to the Fifth Amendment in the United States, although it is interpreted very differently in Australia. When the ‘taking of property’ does not benefit the government, it is not considered an acquisition under Article 51(xxxi) of the Australian Constitution. Since the taking of the tobacco companies’ intellectual property does not benefit the Australian government, the law is expected to be upheld.

But the international response and ramifications of the law are also important. The court case has been closely watched around the world, with many viewing it as a test case for similar legislation in other countries. The New Zealand government has expressed interest in implementing similar laws, with Canada and Great Britain also interested in similar legislation. In fact, the British health secretary says that the recent push for cigarette plain packaging in Australia has inspired the United Kingdom to develop similar laws.

But while the Australian plain packaging law has been supported by some countries, it has been opposed by others in the international community. Honduras and Ukraine have both officially requested consultations on the law at the World Trade Organization (WTO). Honduras, which is a major producer of tobacco products, has signalled that it will be supporting the tobacco industry by challenging such laws at the WTO.

It is perhaps Ukrainian support of the tobacco companies in Australia that goes to show the amount of political heft the tobacco industry has. Ukraine, a country with no tobacco trade with Australia, has challenged the law at the WTO. Ukraine has complained that the law is, “…  more trade restrictive than necessary to achieve the state health objectives”.

The question before the WTO is whether or not the legislation deprives intellectual property with trade rules between countries. For instance, Professor Trigss says that another international concern about Australia’s plain packaging law is its relation to a Bi-Lateral Investment Treaty between Hong Kong and Australia, which also protects intellectual property rights.

Ultimately, it will be up to the Australia to not only defend its law to a domestic audience, but also to demonstrate to the international community that the law is needed.

Bavo Stevens is a first-year in the College.

The Extent of Right to Counsel: Holland v. Florida

Albert Holland

In its twenty-two years in the legal system, the case of Albert Holland has become a touchstone for multiple judicial issues. Most importantly, the case confronts both the right to self-representation and the question of judicial agency in pursuing counsel. Over the appellate processes of two convictions, Mr. Holland argued incompetent public defense, specifically the failure of a publically appointed post-conviction counsel to file a writ of habeas corpus before a statutory deadline set by congress with the Antiterrorism and Efficient Death Penalty Act of 1996 (AEDPA), has contributed to failure in his trials and appeals. On these grounds, he was granted a third trial recently for the charges of first degree murder, robbery with a firearm, attempted sexual battery, and attempted murder with a deadly weapon surrounding the events in July 1990, ending in the death of a uniformed police officer. In addition to affecting Albert Holland directly, this may affect the the exercise of writ of habeas corpus and the Sixth Amendment. In particular, the opinions of Justices Alito, Thomas and Scalia set ominous precedent for defendants’ rights in post-conviction proceedings, dismantling of the rights intended by the Sixth Amendment and the precedent of the Supreme Court.

According to the concurring opinion of Justice Alito, an attorney’s errors are constructively attributable to the client. This principal, drawn from from Lawrence v. Florida, asserts that in cases where the Sixth Amendment rights of the client are not directly violated, the client bears responsibility for missed deadlines. Alito insists, in cases like the Holland case, there is significant evidence of Sixth Amendment violation to warrant a new trial. In his opinion, however, he sets a dangerously high bar for these violations by emphasizing the difficulty of differentiating between gross negligence and mere negligence. On this basis, he decides negligence of post conviction counsel cannot be the bar by which equitable tolling is assessed.

Despite his holding in favor of Mr. Holland, the findings by Justice Alito injures the precedent set by Strickland v. Washington, where a client can obtain relief upon proving the performance of counsel is below a reasonable standard confers probability of having affected a negative outcome. The application of Strickland v Washington in the Holland case asks: did the inadequate action of counsel negatively affect the chances in an appeal? It is reasonable to argue the decision did just that.

The failure to file a writ of habeas corpus has clear and devastating consequences for the Holland case. Setting the bar higher than the standard of Strickland v. Washington damages the function of the right to counsel clause set forth by the Supreme Court under Justice Warren Burger. Burger ruled right to counsel, “…exists, and is needed, in order to protect the fundamental right to a fair trial.” Negligence on the part of the attorney, however hard to prove or categorize as gross or mere, undermines the intent of right to counsel insofar as it precludes the fundamental right to a fair trial. Concerned about setting a precedent to harmful to public defenders, Justice Alito made the exercise of the right to a fair trial more difficult, especially for situations like the Holland case.

The opinion of Justices Scalia and Thomas is more injurious to charitable interpretations of the right to counsel clause. In the first section, Scalia posited, “…Congress has displaced courts’ discretion to develop ad hoc exceptions” to the AEDPA filing limit by itself outlining exceptions to the filing deadline. The crucial objection to Justice Scalia on this point is that the appropriate application of the AEDPA in the case of Mr. Holland compromises his Sixth Amendment rights. By well-established precedent, the Supreme Court asserted its right to review acts of Congress for constitutionality. There is no reason to suspend precedent in the case of the AEDPA and Mr. Holland. To the majority of the justices, Mr. Holland’s constitutional right to a fair trial in the adversarial system was clearly violated by poor counsel. Scalia argues because there is no precedent for right to effective counsel in Habeas proceedings, the failures of the state appointed counsel are attributable to Mr. Holland alone. Furthermore, the Sixth Amendment, does not protect against these failures. The errors of Mr. Holland’s counsel cannot be proven grossly negligent and do not constitute the necessary qualifications for “equitable tolling”. This extension of the filing deadline is not applicable in this case, even if the other qualification – Mr. Holland’s diligent pursuit of his rights – is met.

Mr. Justice Scalia continues in a footnote, claiming Mr. Holland could have dismissed his state appointed counsel in the Habeas proceedings even though multiple motions filed pro se were stricken because he was represented at the time. Justice Scalia assumes that Mr. Holland was responsible to understand the differences between trial and appellate law at such a level as to know to dismiss his state appointed counsel privately, not through a motion filed pro se. Regardless of legal obligations, the state of legal practice in the United States is such that it is plainly unreasonable for Justice Scalia to hold the petitioner responsible for having a better understanding of the law than his counsel. In view of the statute and stare decisis, Mr. Justice Scalia, joined by Mr. Justice Thomas conclude that Albert Holland has no right to “equitable tolling” or protection under the Sixth Amendment.

To Justices Scalia and Thomas, strict interpretation of the constitution and legal precedent, especially Lawrence v. Florida, are more important than the protections outlined by Strickland v. Washington and the Sixth Amendment. The excuse that the right to counsel does not apply in post-conviction proceedings is abhorrent to the spirit of justice set forth by the Constitution and the history of the Supreme Court. In cases that are literally a matter of life and death, any mistake is important enough to warrant consideration and exception. Justices Scalia, Thomas and, even in concurrence, Alito, disregard the spirit in which the Sixth Amendment should be applied and has been applied in the past. In capital cases, accuracy and due process are orders of magnitude more important than expediency.

Aidan Milliff is a first year in the College majoring in Political Science and Public Policy.

Memory in Question and in the Law

Memory in Question and in the Law 
By Margaret Sivit

Mike Castillo (2009)

Late one night in July 1984, college student Jennifer Thompson awoke with a start. She heard sounds coming from the back door of her apartment. As her eyes adjusted to the dark bedroom, she saw a man holding a knife to her throat. Thompson began frantically offering him her credit card and her car. According to Thompson, “He looked at me and said, ‘I don’t want your money.’ … I knew what was about to happen.”

During the assault, Thompson vowed to memorize every detail about the perpetrator. She wanted to commit to memory any distinguishing feature that would help police catch her rapist. When she was able to leave the apartment, Thompson went to the hospital, where she met with Detective Mike Gauldin. As they reviewed the sequence of events and began making a composite sketch of the suspect, Gauldin says Thompson was very clear in her memory. He remembers Thompson saying, “I’m gonna get this guy that did this to me… I will be able to identify him if I’m given an opportunity.”

Her opportunity came three days later, when Gauldin called her in to look at a photo lineup. One of the men, 22-year-old Ronald Cotton, had been named in an anonymous tip as resembling the composite sketch of Thompson’s attacker. Thompson studied the photographs for over five minutes before finally pointing to the photo of Ronald Cotton. According to Detective Gauldin, there was no doubt in Thompson’s mind that he was the man who had raped her.

A few days later, Thompson was called to do a physical lineup. Again, she identified Cotton. Thompson was told she had picked out the same man as in the photo.  She remembers, “I thought, ‘Bingo. I did it right.’ I did it right.”

During the trial, Thompson pointed to Ronald Cotton, sitting in the courtroom, as the perpetrator. The jury found Cotton guilty on all counts, and he was sentenced subsequently to life and fifty years.

***

For Ronald Cotton, the whole experience was surreal. When he first heard that the police were looking for him, Cotton did not feel scared. “I didn’t panic,” said Cotton, “I tried to figure out, you know, why.” Sure there had been some mistake, Cotton arrived at the police station to do the physical lineup feeling relatively calm. He assumed he would be sent home immediately, once they realized he wasn’t the man that they were looking for.

But when it became clear that Thompson was deliberating between Cotton and just one other man, he began to get nervous. By the end of the process, Cotton was terrified. “I was trembling. I felt my body just shaking,” he remembers. Then, Thompson pointed to Cotton and said she was absolutely certain he was the one who had assaulted her.

The trial itself lasted only forty minutes. “She called my name, pointed a finger,” Cotton recalls, “and that’s all, that’s all it takes, it seemed like.” After the jury read the guilty verdict, Cotton began to weep. He felt like he was trapped inside a nightmare.

Thompson, however, was feeling jubilant. She was sure Cotton was the right man. “It was for me that moment that you know the justice system works,” she says. “Because I am the victim, and he’s a horrible person, and he will never, ever be free again.”

***

Eyewitness testimonies are an integral part of the criminal justice system. In many cases like the case of Jennifer Thompson, there is little physical evidence left behind by the perpetrator, forcing jury members to rely primarily on testimonial evidence. There is simply something compelling about a first-hand account: I was there, I saw it, and now I’m giving you a picture of what really happened.

Unfortunately, this is not always the case. The Innocence Project was established in 1992, after a study conducted by the United States Department of Justice revealed that incorrect identifications by eyewitnesses were responsible for 73% of wrongful convictions across the United States. Considering that over 80,000 cases every year are based primarily on eyewitness testimony, this is an alarming statistic. Since DNA testing was introduced in the 1990’s, 289 cases have been overturned using DNA evidence – including those of 17 men serving time on death row.

The legal system is designed to detect liars on the witness stand. The crucial shortcoming of the system, however, is its inability to distinguish between those who remember events accurately and those who merely think they remember accurately.

***

Four years after Ronald Cotton was originally sentenced, a new inmate arrived in the prison where Cotton was serving time. The new inmate’s name was Bobby Poole. “The stewards were calling me Poole instead of Cotton,” Cotton remembers. The two men looked eerily similar, and prison staff and other inmates often confused the men. The more Cotton thought about it, the more he realized that Bobby Poole also looked similar to the composite sketch Thompson made of her attacker.

Bobby Poole and Ronald Cotton

One day, another inmate told Cotton that Poole had admitted to raping Jennifer Thompson and to committing the crime Cotton had been imprisoned for. Cotton wrote to his lawyer and asked to appeal his case, and a few weeks later he was back in court. During the trial, Cotton’s lawyer called Bobby Poole to the stand. Jennifer Thompson, face-to-face with her actual rapist for the first time since the incident, was asked which of the two men had assaulted her.

She pointed to Cotton. “The strongest emotion I felt was anger at the defense,” she remembers. “I thought, ‘How dare you. How dare you question me? How dare you try to paint me as someone who could possibly have forgotten what my rapist looked like, I mean, the one person you would never forget. How dare you.’”

Cotton was sent back to prison, this time with two life sentences.

***

How is it possible that Thompson was able to sit in the same room as the man who had raped her, and still point to Cotton as the perpetrator? After making a concerted effort to memorize everything about her attacker, it seems unfathomable that she could fail to recognize him.

In the past two decades, researchers have begun to realize that memory isn’t nearly as straightforward as was once thought. According to Jonah Lehrer, psychology and neuroscience journalist, “Even though every memory feels like an honest representation, that sense of authenticity is the biggest lie of all.” For a long time, memory was thought of as being analogous to a video recorder or a filing cabinet. Individual memories were thought to be stored deep within the brain, where they could later be retrieved and accessed, retaining the same content as when they were initially stored.

But according to memory researcher and psychologist Elizabeth F. Loftus of the University of California, Irvine, memory is “more akin to putting puzzle pieces together than retrieving a video recording.” In 2010, writers Hal Arkowitz and Scott Lilienfield commented, “Even questioning by a lawyer can alter the witness’s testimony because fragments of the memory may unknowingly be combined with information provided by the questioner, leading to inaccurate recall.”

In fact, the act of remembering is a creative process. “Every time we recall an event,” says Lehrer, “the structure of that memory in the brain is altered in light of the present moment, warped by our current feelings and knowledge.” The term for this is memory reconsolidation, or the process through which previously stored memories become distorted over time. According to Lehrer, this is especially true of memories that elicit strong emotional responses. After the September 11 attacks, psychologists William Hirst and Elizabeth Phelps began a study to determine how closely witnesses’ memories of the tragedy aligned with actual events – and to what degree those memories would change as time passed. Lehrer summarizes:

At one year out, 37 percent of the details had changed. By 2004 that number was approaching 50 percent. Some changes were innocuous – the stories got tighter and the narratives more coherent – but other adjustments involved a wholesale retrofit… Over and over, the act of repeating the narrative seemed to corrupt its content.

This idea is corroborated by Elizabeth Loftus, who has conducted a series of studies in which she has successfully implanted “false memories” in subjects. Loftus begins the study by talking to participants’ family members, and collecting stories from each participant’s childhood. She then hands the subjects a series of short narratives: most are stories they would remember from their own childhood – a family vacation, etc. – but one of them is made-up. The subjects are then asked to provide further details about the events from memory. Loftus found that roughly 1/3 of the participants adopted the false memory as their own, claiming to remember an event that had never happened.

One of the false “memories” Loftus often uses is a story of getting lost at an amusement park as a child, and crying for hours until being reunited with his or her family.  These imaginary memories are not simple, mundane stories; they are emotional childhood narratives, events you would expect an individual to remember – if they had, in fact, happened. “The larger lesson,” remarks Jonah Lehrer, “is that because our memories are formed by the act of remembering them, controlling the conditions under which they are recalled can actually change their content.”

***

In 1994, Ronald Cotton was listening to the radio in prison when he heard DNA evidence was being used to determine guilt or innocence in criminal cases. The use of DNA evidence was relatively new in the 1990s, but Cotton wrote to his lawyer and asked if they could appeal the case once again.

Inside the rape kit from July 1984 there was a single sperm sample viable for DNA testing. The result was indisputable; it showed that Poole, not Cotton, was responsible for raping Jennifer Thompson. On June 30, 1995, Cotton was officially cleared of all charges and released from prison.

Upon hearing the news, Thompson was in shock. According to Detective Gauldin,”Her reaction was, ‘No, that can’t be true. It’s not possible… I know Ronald Cotton raped me. There’s no question in my mind.’” Thompson started frantically replaying the events of that night in 1984 over and over again in her mind – but every time it was Cotton, not Poole that she saw. “It was like someone had just taken my life and, like, turned it upside down,” she said.

***

The use of eyewitness testimony in criminal cases is unlikely to change. Understanding the limitations of the legal system in this respect can help prevent individuals from being falsely accused like Ronald Cotton. The government awarded Cotton $10,000 in reparations for every year he spent behind bars. Any amount of money, however, seems trivial in comparison with the eleven years of life Cotton will never get back.

Jennifer Thompson and Ronald Cotton

Jennifer Thompson is now a vocal advocate of procedural reform for eyewitness testimony. One of the most significant of these reforms is controlling who administers physical lineups to eyewitnesses. Most importantly, the individual overseeing the lineup should not know who the suspect is. When Thompson was told she had identified the same man as in the photo, this positive reinforcement helped to crystalize a false memory. Other reforms suggested by the Innocence Project include: having individuals in the lineup that resemble the witness’s description of the perpetrator, assuring the witness that the suspect may or may not be in the lineup they are viewing, and videotaping the witness identification so that the legitimacy of the procedure can be verified later.

In addition, it is important that jury members are aware of their own preconceived notions of eyewitness testimony – and how those notions may be incorrect. For instance, jury members tend to be more convinced by witnesses who remember a great deal of peripheral detail, in addition to details of the crime. However, according to a study featured n the Journal of Applied Psychology, those who could accurately identify a thief in a staged trial scored lower on questions that test their memory of peripheral details; meanwhile, those who misidentified the perpetrator had a stronger memory of peripheral detail. Jury members should be careful not to fall under the assumption that witnesses with a clear memory of the context of the crime are necessarily just as clear-minded about the crime itself.

The widespread use of DNA evidence in criminal cases has done much to offset the reliance on eyewitness testimonies. However, with over 80,000 cases every year still relying largely on eyewitnesses, it is important to keep in mind just how impressionable memory can be. Ronald Cotton will never get back the eleven years he spent in prison; but if a few simple reforms are made to the witness identification system, perhaps other innocent individuals can avoid losing years – or even their lives – based on a false accusation.

Margaret Sivit is a second year in the College.

Sentencing Disparities

Sentencing Disparities
By Anna Lee Stone

Dorsey v. United States and Hill v. United States, also known as the Tinley Park, IL crack cocaine cases, will impact legislative interpretation, racial discrimination, and retroactive sentencing. 

This past Tuesday, the United States Supreme Court heard oral arguments for two cases dealing with the disparity in sentencing guidelines for cocaine cases. Lawyers for the defendants in two consolidated cases, Dorsey v. United States (11-5683) and Hill v. United States (11-5721) argued that offenders whose crimes predated the enactment of the Fair Sentencing Act of 2010 but who were sentenced afterwards should be receive sentences based on the new 1:18 ratio of the Fair Sentencing Act instead of the old 1:100 ratio of the Anti-Drug Abuse Act of 1986. While these cases may appear irrelevant to Americans not involved drug trafficking, the Supreme Court’s ruling could prolong a system of discrimination and injustice.

The sentencing disparity between powder cocaine and crack cocaine dates back to the Anti-Drug Abuse Act. At the time, crack cocaine was becoming widely available, and public officials were certain that the crack variety of the drug was far more harmful than the powder variety. In the Anti-Drug Abuse Act of 1986, Congress decreed that drug trafficking crimes would be punished with mandatory prison terms of five or ten years minimum, depending on the amount of a drug involved in the crime. With regard to cocaine, the Act established a 1-to-100 ratio between crack and powder cocaine. Judges would be required to consider one unit of crack cocaine as equal to 100 units of powder cocaine for sentencing purposes. In other words, someone convicted of trafficking one gram of crack cocaine would receive the same minimum sentence as someone convicted of trafficking 100 grams of powder cocaine.

Fewer than ten years after the Anti-Drug Abuse Act took effect, it became clear that African Americans were most often punished for trafficking crack cocaine, which carried a harsher prison sentence, while Caucasians were most frequently punished for trafficking powder cocaine, which carried a far lighter sentence. According to a 1995 report by the U.S. Sentencing Commission, minorities, and African Americans in particular, constituted “the vast majority of those persons affected by such an exaggerated ratio” between crack and powder cocaine sentencing. This report, asked for by Congress in 1994, was part of a proposal by the Commission to alter the Sentencing Guidelines to a 1-to-1 crack to powder ratio. However, Congress rejected the Commission’s plan, as well as additional proposals for a 1-to-5 ratio and a 1-to-20 ratio.

Finally, in 2010, Congress enacted the Fair Sentencing Act, which implemented a new ratio of about 1-to-18, crack to powder. Under this new law, a crime involving 28 grams of crack, about one ounce, would yield the same minimum five-year sentence as a crime involving 500 grams of powder. In an unusual act of swift government, Congress dispensed with the normal six-month review period required for Guideline amendments and instead gave the Sentencing Commission emergency power to implement the new ratio.

This brings us to the issue of Corey A. Hill and Edward Dorsey, Sr. In March 2007, Hill was caught selling approximately 53.3 grams of crack to an informant in a government-arranged transaction; two years later, he was convicted on one count of distributing crack cocaine. In 2010, a few months before Congress passed the Fair Sentencing Act, Dorsey pleaded guilty to possession and intent to distribute 5.5 grams of crack cocaine. Both Hill and Dorsey were sentenced after the new law took effect, but because they were convicted prior to the new law’s enactment, they were sentenced under the old 1:100 ratio. In their consolidate case before the Supreme Court, lawyers for the two argued that because the men were sentenced after the new law was enacted, they should have been sentenced according to the new 1:18 ratio.

The issue of how to sentence individuals convicted prior to the Fair Sentencing Act is complicated by the “Savings Statute,” enacted in 1871. This statute states that the repeal of any law may only erase penalties or liabilities incurred under the repealed law if the law accomplishing the repeal explicitly states that the repeal also achieves this secondary result. Unfortunately, the 2010 Act fails to specify which ratio judges should use for sentencing occurring after its enactment. Therein lies the question before the Supreme Court.

Many people support the application of the new ratio to those sentenced after the Fair Sentencing Act took effect, including the U.S. Government. Immediately after the law passed, the Obama Administration announced that the new law would apply only to those cases in which the individual committed the crime after the President signed the law—after August 3, 2010. Three months later, two senators from the Committee sent a letter to Attorney General Eric Holder reminding him of his testimony that sentencing changes could not “wait any longer.” The senators argued that the lowered ratio should apply to all individuals sentenced after August 3, 2010, since this was why Congress had allowed the Committee to change the Sentencing Guidelines immediately. The senators further noted that the statute of limitations would not run out on all crimes for another five years, so the Anti-Drug Abuse Act that Congress had deemed “unfair” would prevail for several more years unless the 2010 Act were applied retroactively. In the end, the Obama Administration’s initial position lasted less than a year. In July 2011, Holder sent a letter to federal prosecutors informing them that the federal government had changed its position would now urge courts to apply the new law to all persons sentenced after the 2010 Act took effect.

As a result of the government’s change of position, the Supreme Court appointed Miguel A. Estrada of the Washington office of Gibson, Dunn & Crutcher as an amicus to argue against retroactive application of the Fair Sentencing Act. Estrada is also the only person to have submitted an amicus brief against the application of the new ratio to cases where conviction, but not sentencing, occurred prior to the 2010 Act.

The Court’s decision in the Dorsey-Hill cases will almost certainly be influenced by the long-running dispute regarding how to read federal statutes—whether to focus only on the language of the statute, or to consider the statute’s legislative history as well. In their briefs to the Court, the attorneys for Dorsey and Hill focus largely on the legislative history of the Fair Sentencing Act. Hill’s lawyer, who argued for the two men on Tuesday, argued in his brief that “once Congress complete its historic overhaul of crack sentencing policy,” Congress “wanted those amendments to apply immediately….The clear implication….was that the new mandatory minimums should take effect rapidly.” Hill’s attorney further argued that Congress’ insistence on the immediate overturning of the old 1:100 ratio demonstrates that it did not intend for the old ratio to be applied to sentences imposed thereafter. Two former federal district judges also submitted a joint brief stating that their experience as sentencing judges led them to oppose requiring judges to “perpetuate an injustice” and continue “racial disparities [that] all three branches of government have found repugnant.” Opposing these briefs and others is Estrada’s brief, which relies mainly on the language of the 1871 and 2010 statutes. Estrada argued that the 1871 statute provided “clear and binding direction to the courts that, when it intends criminal legislation to release previously incurred penalties, it will say so expressly.”

Thus, the Supreme Court is left to make a decision about a case that involves racial issues, retroactive sentencing, and legislative interpretation. After all the briefs and oral arguments, it has the final word.

A Responsibility to Protect: Libya and Syria

A Responsibility to Protect: Libya and Syria
By Apratim Gautam

Within the international community, the Responsibility to Protect (R2P) emerged recently as a doctrine endorsed and fostered by the United Nations. Two paragraphs in the 2005 UN General Assembly World Summit “Outcome Document” provided the philosophical basis for the formulation of the Responsibility to Protect (R2P) Doctrine. Paragraphs 138 and 139 specifically outline the key tension in deciding how the international community should act to protect citizens of a sovereign state. Once a state has failed to protect its citizens, because it is unable or unwilling, R2P provides the basis from which the international community should act to protect said citizens of a state.

This doctrine recently has come under increasing pressure from the ostensible disparity in the international response to Libya and Syria, two tumultuous states involved in the Arab Spring. R2P was invoked in protecting Libyan citizens from a brutal dictator, Muammar Gaddafi. R2P has not been invoked yet in protecting Syrian citizens from a similarly, arguably more brutal dictator, Bashar al-Assad. Critics of R2P argue that its aim is protection of civilians, not regime change, as occurred in Libya.  In the case of Libya and Syria, however, the protection of civilians and regime change appears inexorably linked. As ‘negotiations’ progressed, the loss of human life increased in both Syria and Libya, aided by the incessant bombing of civilian settlements.

The three main pillars of R2P refer first, to the responsibility of the sovereign state to protect its people; second to remind the international community to assist the state if the said state is unable; and, third to justify intervention by the international community if required, emphasising military intervention as a last resort. In March 2011, when Resolution 1973 was adopted by the UN invoking R2P approximately 4,000 Libyan civilians had been killed. Today in Syria, the death toll is estimated to be over 9,000, but R2P still not seen in the international community. Regime change is what Chinese and Russian officials feared when they recently vetoed a resolution on Syria in the Security Council.

Yet, when the consequence of inaction is the unabashed systematic murder of civilians in Syria, machinations over regime change is, at best, inadvertently complicit in the deaths of civilians. At worst, these machinations question the very foundation of R2P and the UN itself. It does raise legitimate fears that internationally unsupported unilateral acts of invasion could occur in the future with a new face attached to it. R2P, however, was itself created to prevent that from happening. In not using it, the international community has tacitly admitted it is not fit for purpose.

R2P has an admirable sentiment: the collective protection of human life by the international community from those that would wish to harm it. The inconsistencies, however, are clear. Regime change is sometimes unavoidable. It is a decision that should never be taken lightly, and it should always be taken in conjunction with wider global debate and regional organisations. When faced with mounting death tolls, however, the international community must be compelled to defend those being abused and murdered.

On March 25^th, 1998 President Clinton apologised for the inaction of the global community with regards to the Rwandan Genocide. It was partly from this regret that R2P was born, and it was in wanting to avoid any similarity being drawn to the infamous ‘humanitarian intervention’ line of the NATO invasion of Iraq that the nuances of state sovereignty versus the protection of human life were developed within the doctrine. R2P is failing to live up to its own expectations. The urgency of the situation is not in doubt. The efficacy of the tools the international community has at its disposal, however, faces challenges and the longer the paralysis continues, the greater the cost of individual life will be.

Apratim Gautam is a first year in the College. 

Affirmative Action in the Twenty-First Century?

Affirmative Action in the Twenty-First Century?
By Julia Reinitz

During the third and fourth weeks of this quarter, the University of Chicago campus will be swarming with visiting accepted students. In March and April, hundreds of thousands of high school seniors receive their college admissions decisions and make a final commitment to an institution. For those who get into the school of their dreams, this is an amazing time. For others, this is a season of disappointment. For a few like Ms. Abigail Fisher, it can be a season of simple outrage. Denied admission to the University of Texas at Austin in 2008, Ms. Fisher sued the University, arguing the use of affirmative action by the university resulted in her rejection in favor of minority students with lower GPAs.

This suit immediately raised questions over the legality of affirmative action in college admissions in the United States. In 2003, the Supreme Court ruled 5-4 in Grutter v. Bollinger that diversity was, “…a compelling state interest,” in public university admissions. The precedent set by Grutter allowed universities to use race as one factor in making admissions decisions. In Texas, all students who finish in the top ten percent of their high school class are admitted to a University of Texas campus. The policy challenged by Ms. Fisher is concerns students outside the top ten percent. The university actively takes race into account when considering students outside the top ten percent of their high school class. The Supreme Court is expected to hear the case next fall.

Meanwhile, affirmative action questions were also raised in California. On April 2, 2012, the Ninth Circuit Court of Appeals upheld an amendment to California’s constitution that outlawed “preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of […] public education”. The court effectively banned affirmative action.

In a roundabout challenge the decision, the Coalition to Defend Affirmative Action (BANM) argued the Court failed to protect the constitutional rights of its constituents. According to BAMN, the Court did not prohibit consideration of other factors such as veteran status, income, or geographic background, while prohibiting consideration of race and ethnicity. The decision effectively violated the constitutional right to equal protection in the Fourteenth Amendment. As in the Fisher case, the California case questioned the scope of Grutter precedent. However, the 9^th Circuit found that Grutter, “spoke only to whether race-based affirmative action programs are permitted, and not to whether they can be prohibited”.

These cases cast much doubt over the future of affirmative action programs in public university admissions. Programs accounting for race obviously have increased enrollment of black and Hispanic minority students. The policies implemented by the University of Texas have made it the sixth-greatest producer of undergraduate degrees for minority students nationwide. In California, black and Hispanic admissions dropped by almost one-quarter immediately after the passage of the “affirmative action ban”, but have since rebounded somewhat.

Opponents of affirmative action have argued the current system is unfair to white and Asian students, while supporters of affirmative action have argued the system is unfair to black, Hispanic, and other minority applicants. It seems impossible to create a system, which would make everyone happy. Maybe this system is simply part of college admissions. The process is a high-stakes game where everyone wants to get into certain schools. Not everyone, however, can achieve this goal. Regardless of how you choose who gets those coveted spots, someone will be left out.

In Grutter, Justice O’Connor wrote there would come a day when affirmative action policies were no longer necessary. She envisioned that day would come approximately 25 years after Grutter. If the court decides to end their endorsement of race-conscious admissions policies next fall in Fisher, will it be too soon?

Julia Reinitz is a first year in the College.