The views expressed in this blog are not necessarily those of TCP, its committees, or boards. 

Daniel Patrick Moynihan famously said, “Everyone is entitled to his own opinion, but not to his own facts.” When it comes to federal law, however, some people with religious beliefs may indeed be entitled to their own facts. The U.S. Supreme Court’s interpretation of the Religious Freedom Restoration Act (RFRA) in Burwell v. Hobby Lobby Stores, Inc. certainly leaves this impression. By allowing the corporations and their owners to determine what counts as a substantial burden on their “exercise of religion,” the five Justices in the majority appear to have removed that question from judicial review. This has serious implications for future claims that RFRA excuses corporations from complying with neutral and generally applicable federal laws.... Read More

As everyone now knows, the U.S. Supreme Court decided for the first time on June 30, 2014, that for-profit corporations can claim a religious exemption from federal laws that conflict with the personal religious beliefs of people who own the corporation. The majority opinion, by Justice Alito (joined by Roberts, Scalia, Thomas, and Kennedy), says “Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But, it is the majority, not Congress, that writes fiction here.... Read More

On Thursday, June 19, a group of five men, now known as the “Central Park Five,” agreed to a settlement of $40 million with New York City for their wrongful conviction in the Central Park jogger case of 1989. Justice has been long delayed for these men, and their case is one that exposes several flaws in our law enforcement infrastructure.

The story of the Central Park Five began 25 years ago, when a young woman was brutally attacked and raped while jogging in Central Park. She was left with significant brain damage and no memory of the incident while police scrambled to piece together the details of the crime. Within days, they concluded that a gang of as many as 30 young men had assaulted the young woman. Soon, the police had arrested five African-American and Hispanic adolescents, ranging from ages 14 to 16. The police interrogated each of them, without the presence of a parent or a lawyer, from 15 to 30 hours. Eventually, the young men were led to believe that they would be allowed to go home if they confessed. Tired and confused, they obeyed, and implicated one another in a series of contradictory statements.... Read More

Here at The Constitution Project, we are always seeking new ways to disseminate our policy recommendations beyond the traditional vehicles such as our policy reports and amicus briefs.  Through our committees of legal experts and opinion leaders, we are able to form policy initiatives and reach targeted audiences with our message. But the idea of a particular policy initiative is often never as powerful as the story behind it.  And Netflix’s hit show “Orange is the New Black” is telling the story of the lives of people affected by a dysfunctional justice system.  It has surprisingly and delightfully exposed a wide audience to the very serious problems plaguing this system, and more importantly, is making those people care about it. ... Read More

Earlier this week, the U.S. Supreme Court ruled in Hall v. Florida that Florida’s rigid IQ test score cutoff to determine whether a defendant is intellectually disabled, and therefore ineligible for the death penalty, violates the Eighth Amendment. TCP President Ginny Sloan observed that, "The Court's decision addresses a truly significant concern in the application of the death penalty, but other concerns related to executing those with intellectual disability remain.”... Read More

At best, many Americans – particularly those in decision-making positions in death penalty jurisdictions across this country – are uncomfortable when it comes to talking about race. Study after study reveals that Americans strive for colorblindness as a cure for racism and bigotry. And a recent report reveals that the youngest generation to become eligible to serve on juries and to vote - the so-called “millennials” – also believe that different treatment on the basis of race is something that can be alleviated by simply “removing consideration of race from the equation.”... Read More

On Tuesday night, the federal Fifth Circuit Court of Appeals stayed Texas' scheduled execution of Robert Campbell. The court based its stay on evidence of Campbell's intellectual disability, which Texas prosecutors knew of, but failed to disclose to Campbell's attorneys.... Read More

Last night, we witnessed the latest - and what by all accounts may be the worst - chapter in the practice of using the execution of prisoners as an opportunity to test previously untried lethal injection drugs and procedures. Clayton Lockett was the first of two death row inmates Oklahoma intended to execute last night under a new lethal injection procedure shrouded in secrecy. For reasons that will only be made clear through a thorough and independent investigation, More than forty agonizing minutes after it began, Lockett’s botched execution left Oklahoma and the nation wondering what went wrong.

In recent years, state governments have faced drug shortages because drug manufacturers have refused to allow states to use their products to execute prisoners. In response, too many states have started down a dangerous path, attempting to hastily execute prisoners with drugs never before used in execution - and often obtained in secret. The Constitution Project’s Death Penalty Committee’s report, Irreversible Error, being released next weeks, warns of the dangers of adopting untested procedures and drugs without adequate public disclosure. ... Read More

In a prior post, we argued that States should disclose where they procure the drugs used for lethal injections. As more drug companies refuse to manufacture or supply drugs for executions, the States have relied on compounding pharmacies, subject to minimal oversight, to produce the necessary compounds. It seemed as though the courts would finally decide whether a State’s refusal to provide a death-row inmate with information about the progeny of its lethal injection drugs violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

But the Supreme Court put a halt to that on April 7th, denying petitions for certiorari from Missouri and Louisiana prisoners. The Court did not provide reasons for denying the petitions, as is its custom, yet the practical result is that more prisoners will be executed having no idea how they will die, a truly macabre prospect.... Read More

The Justice for All Reauthorization Act (“JFAA”) (S.822) is a bipartisan bill that the Senate Judiciary Committee unanimously approved last October. On Monday April 7, the U.S. House of Representatives passed one part of the JFAA, the Debbie Smith Reauthorization Act (H.R. 4323), which provides grants to states to reduce evidence backlogs in their crime labs. Unfortunately, the House did not reauthorize a number of the other critical programs that were a part of the original Justice for All Act. The good news is that the Senate has the opportunity to pass the JFAA, which includes all of these important provisions in one legislative package.

As Senator Patrick Leahy (D-VT), chair of the Judiciary Committee and lead sponsor of the bill, explains, the bill “strengthens important rights for crime victims, reauthorizes the Debbie Smith DNA Backlog Grant Program, seeks to improve the quality of indigent defense, and increases access to post-conviction DNA testing to help protect the innocent.” Among the original cosponsors of the bill are five Republicans, including Senate Minority Leader Mitch McConnell (R-KY) and original sponsor Senate Minority Whip John Cornyn (R-TX).... Read More

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