Friday, October 12, 2018

What Justice Kavanaugh Can Do To Redeem Himself

By: Christopher Hawthorne

This article originally appeared in The Daily Journal.

I am the director of the Juvenile Innocence & Fair Sentencing Clinic at Loyola Law School, Los Angeles. My students, staff and I represent people in the California prison system who committed serious crimes as children. We petition for resentencing, gather mitigation evidence and represent our clients when they stand for parole. Nearly all of our clients are “lifers.”

You might say I have a rooting interest in the redemption of people who, like now-U.S. Supreme Court Associate Justice Brett Kavanaugh, have done bad things as children.

In California, juvenile offenders stand for parole in a special kind of hearing, called a youth offender parole hearing. In this hearing, juvenile offenders — no longer children, but now age 30 through 50 — discuss their childhood crimes, their behavior in prison and their plans for release.

A parole hearing, however, is not a free-for-all therapy session. My clients are there for a very specific purpose. They must persuade the Board of Parole Hearings that they deserve a certain result: freedom.

There are no rules of evidence at a parole hearing, no burden of proof. The result is entirely in the hands of two commissioners. The commissioners make findings and decisions based on their sense of our clients’ credibility and, in particular, how mature they are, how thoughtful, how they manage their anger and, most importantly, whether they take responsibility for what they did as children. Childhood, for the parole board, goes up to age 25.

Sound familiar?

My clients must describe in detail what they did — and not just their crimes. They must describe who they were as children, who they are now and why the difference means freedom. Everything is framed in the language of choice, even things they did when they were as young as 10 years old. Minimizing is prohibited. Outraged denial will get them a swift finding of unsuitability and three to 10 more years — not in the D.C. Circuit, but in the California prison system.

Well, you might say, that’s only right: These are people who committed serious crimes. But the process isn’t confined to the guilty. Even clients with credible claims of innocence have to go through this same process. And when I say credible, I mean a pretty good case, with substantial evidence, not just, “I don’t remember, so it didn’t happen.”

My clients don’t have to talk about a crime they didn’t commit, but they do have to “say they’re sorry” for something. For being wild; for running the streets; for a string of petty offenses; for hanging out with a gang. Even when they didn’t commit any crime.

Nonetheless, most of my clients — including the innocent ones — still think of the parole process as a valuable one. Yes, it feels unfair that something you did as a child is called a “choice” when you felt like you had no choices. But that’s what you do as an adult: You take responsibility. You say you’re sorry. You own up to things you didn’t think were wrong at the time because with maturity, you realize your wild teenage self was pretty destructive. You can contextualize your behavior, but the best thing you can do is look at your child self through your adult eyes and say, “Yes, I hurt someone.” And responsible adults try to address the hurt they’ve caused as children.

One of the unheralded advantages of privilege is the stuff you can get away with. When you hold noisy parties, police cruisers are not patrolling your Maryland beach house to see if sexual assault is taking place upstairs. You can consume illegal drugs, as long as you do it on your own private property. When you get arrested, droves of people beg the judge not to destroy your “promising future.” Sometimes, you even get that benefit when you are 53 years old.

My clients never received that benefit. Nobody thought they had “promising futures.” Everybody believed their accusers. It seemed only right and natural that they deserved a lifetime in prison, just as it seemed right and natural that Brett Kavanaugh deserves a lifetime on the U.S. Supreme Court.

But the reason my clients have a future at all is thanks to the Supreme Court and, in particular, Associate Justice Anthony Kennedy — Justice Kavanaugh’s predecessor. It was Justice Kennedy who initiated the prohibition of extreme sentences for children because of recent science showing that the juvenile brain doesn’t process moral or causal information like an adult brain. For nearly 30 years, Justice Kennedy was a swing vote for thoughtfulness and our evolving standards of decency. His voice will be missed on the court; it is painful to speculate how much.

Justice Kavanaugh will never have to stand for parole. He has lost his chance to say, in public, how sorry he is for what he did to Christine Blasey Ford and Deborah Ramirez and others whose names we may never know. But he hasn’t lost his chance at redemption. Because children have their whole lives to take responsibility, think like adults and redeem themselves. They can learn compassion, humility and greatness of spirit at any age, even in their 50s. I have had clients who took that long, and their turnaround was both beautiful and heartbreaking.

As a Supreme Court justice, Brett Kavanaugh will have to rule on the fate of people like my clients — and not just my clients, but all of the dispossessed. Maybe, having gone through this hearing, he will understand how much he shares with these people, how much we all do. He not only sits in judgment on them, but in a very real way, he’s one of them. I hope that this experience has changed him. Maybe not right away. But then, he has a lifetime to seek redemption.

Tuesday, October 2, 2018

Mark Judge Didn’t Help Christine Blasey Ford in the 1980s, But He Can Help Her Now

By Professor Maureen Johnson

This article originally appeared in The Daily Journal.

Dr. Christine Blasey Ford’s testimony about Supreme Court nominee Brett Kavanaugh is as remarkable for what she asserts Kavanaugh did as for what she acknowledges Kavanaugh did not. More particularly, Ford doesn’t claim that she was raped by Kavanaugh. She testified that he stopped short, in part due to admonitions by Mark Judge. In fact, Ford testified that there were moments that she believed Mark might come to her aid. Ultimately, Mark threw himself onto the bed as Kavanaugh toyed pulling away Ford’s clothing. The ensuing tumble freed her from Kavanagh’s pin and allowed her to flee from the attack.

Ford’s recollection that Mark urged Kavanaugh to hold back not only demonstrates she made every effort to faithfully and truthfully recollect the incident, but it also provides extraordinary insight into the goings on in that fateful summer in 1982.

Boys will be boys. And in the 1980s, Mark obviously knew the limits. Entitled white boys could get away with the occasional sexual assault of a younger girl in a compromising setting. As Ford testified, the 15-year-old girl in her understandably didn’t want to tell her parents that she had been drinking — albeit one beer — at a home where chaperones were absent and certain of the boys were “stumbling drunk” and on the prowl. In judgmental 1980s speak, she was asking for it. And she wasn’t actually raped. Had she reported to her parents or law enforcement, the slap-on-the-wrist would have been — at best — a stern warning to Kavanaugh to lay off the beer and think twice about forcing himself on a 15-year-old.

That is why Mark urged Kavanaugh to hold back.

Wednesday, August 29, 2018

The Silver Lining: Will McCain’s Legacy be America’s Rejection of Partisanship Politics?

By Professor Maureen Johnson

American values. It’s hard to imagine a statesman who so perfectly embodied American ideals as Sen. John McCain. Rather than jump the line on early release as a prisoner of war because of his privileged status, he refused. Honoring the military code of conduct that prisoners of war should be released in the order of capture, McCain was imprisoned for over five years – including two years of solitary confinement - enduring daily tortures that left him hobbled in body, but never in spirit. As universally agreed, he was a good man, a good husband and father, and a truly phenomenal American.

But McCain recently had one unabashed critic.

Donald Trump publically rejected the idea that John McCain was an American hero. Per Trump, McCain only was given that tag “because he was captured.” Trump added: “I like people who weren’t captured.” Trump continued his rebuke even after McCain revealed his battle with cancer. While fellow Republicans begged for reversal, Trump doubled-down, scorning and belittling an honored patriot whom almost all of us feel we have been blessed to admire and call our own.

Trump’s heartless comments are emblematic of a much deeper philosophy that cannot be reconciled with our American spirit. Whenever there is a winner, there is a loser. To say one automatically is worthy and the other is not is insidious, divisive and an affront to humanity. This especially is so when the perceived loser – the person violated – is a fellow American.

Imagine if the words Trump uttered were instead: I like police officers who don’t get shot. I like women who don’t get sexually assaulted. I like children who don’t get beat up by a schoolyard bully.

If John McCain taught us anything, it’s that we do not turn on each other. Americans have each other’s backs. Winners do so with grace. If this is done, the losing party is not disenfranchised. Instead, we tackle problems as Americans, not as embattled partisans bent on wielding power to destroy the other. In an open letter to America read two days after his death by long-time aide Rick Davis, McCain said just that.

In the words of Sen. McCain:

“We weaken our greatness when we confuse our patriotism with tribal rivalries that have sown resentment and hatred and violence in all of the corners of the globe. We weaken it when we hide behind walls rather than tear them down, when we doubt the power of our ideals rather than trust them to be the great force for change they have always been. We are 325 million opinionated vociferous individuals. We argue, and sometimes even vilify each other in our raucous public debates. But we have always had so much more in common with each other than in disagreement. If only we remember that and give each other the benefit of the presumption that we all love our country, we will get through these challenging times. We will come through them stronger than before; we always do.”

McCain’s poignant words can bring us home.

America was great when we honored our fallen soldiers instead of kicking them to the wayside. America was great when we shared our good fortune, instead of whining like a spoiled child that we want all the candy for ourselves. America was great when our elders – including the very great John McCain – earned their spots as world leaders by championing democracy, instead of touting the purported charms of brutal dictators and autocrats.

And yes, America truly was great when a naval pilot in Vietnam named John McCain chose to forgo his get-out-of-jail-free card and instead stand in solidarity with his fellow soldiers. We know what reasoning Trump would have employed to weigh such a decision: winning.

Surely, that is what Trump thought he did when he got a waiver from serving in the military altogether due to his claim of being physically unfit because of a bone spur in his heel that somehow never since has caused him a problem. Imagine a 20-something Trump yucking it up at a Manhattan nightclub, boasting about how clever he was. If this was “winning,” who were the losers? Per Trump’s all-or-nothing winner-loser paradigm, the “losers” in his view must have been all those American soldiers who weren’t so clever and instead served their country when called, ultimately drawing their last breath on a battlefield in Laos.

This is the man we elected president? It is no wonder McCain’s final farewell to America has been perceived by many as a warning about the views of the current administration.

No doubt the impact of an American president’s ideals – or lack thereof – trickles down to the masses, most notably to impressionable children. Consider a 6-year-old trying to grapple with the idea of sharing: two scoops of ice cream for me, one for you. Or respecting a classmate: If you’re president, you can do whatever you want. Grab them by the p****. And then there’s truth: A lie isn’t a lie if you say it enough

Character matters. McCain possessed both the courage and grit to hold a mirror up to Trump. In doing so, he has held that same mirror up for the entire nation. Is Trump whom we want to become? Or is it true American heroes committed to service – like John McCain – whose aim is to unite rather than divide?

Just as presidential values can trickle down, the values of the American people can trickle up. Let’s honor McCain not as partisans, but as the Americans for whom he valiantly served in Vietnam, in that cage in Hanoi as a prisoner-of-war and in the grand halls of the United States Senate, where he called for the end to partisan politics. McCain rose like a phoenix from the most trying of times; so too can we.

Put simply, which of these two men do you want your son or daughter to emulate? Senator McCain, you have my vote.

Tuesday, August 7, 2018

Time to revive the Democratic-Republican Party?

By Maureen Johnson

This article originally appeared in The Daily Journal.

The Whigs. The Federalists. The Bourbon Democrats. Since ink met parchment to create the Declaration of Independence in 1776, America has seen its fair share of major political parties. Our forefathers warned against the danger of factionalism, recognizing the insidious desire for dominance easily could result in discord if not outright disenfranchisement. Alexander Hamilton and James Madison discussed these views in Federalist Papers Nos. 9 and 10. Yet Madison, along with Thomas Jefferson, went on to form America’s first political party, known as the “Democratic-Republican” or “Anti-Administration” Party. Hamilton took the helm of the competing Federalists. Hence, our two-party system was born.

In the wise words of Abraham Lincoln: “And this too shall pass.”

Many historians view our country as tumbling through five to six distinct eras in our two-party system. Over time, the nomenclature and ideals of major political parties transmogrify. In Lincoln’s day, the Grand Old Party Republicans fought for the rights of African-Americans. Democrats took up that laboring oar for many more minorities no later than the1960s, with the passage of the Civil Rights Act. And GOP’s finest hour soundly was kicked to the curb in 2016 when modern-day alt-right leaders — including David Duke, a Grand Wizard of the Ku Klux Klan — gave a thumbs-up to the GOP presidential candidate.

Is it time for a seventh era in our two-party system?

Many moderate Republicans are caught in the middle of a bitter tug-of-war between Democrats and an unrelenting far-right faction of the Republican Party that continues to stoke racism, either to validate prejudice or as a means for political gain. Put simply, Democrats certainly can get along with moderate Republicans, and vice versa. The civil war America faces is not between Democrats and moderate Republicans; rather it is with that small hard-right faction who have an unprecedented but very real stranglehold on how our country is run.

How can it be that 70 to 80 percent of Americans agree on major political planks yet that consensus is all but ignored by those in power? We agree Dreamers are entitled to a path to citizenship, babies should never be stripped from the arms of parents seeking asylum, and affordable healthcare should cover preexisting conditions. There even is general concurrence for basic gun control reform. And a majority of Americans easily would rather spend billions of dollars on meaningful programs, e.g., infrastructure or addressing the opioid crisis, instead of funding a symbolic “wall” that Trump promised would be paid for by an outside source. Even a 5-year-old understands that being asked to pay for a promised gift is a far cry from a promise kept.

Tuesday, July 3, 2018

On Independence Day, a Renewed Focus on Individual Liberties

By Professor Gary Williams

"I think eternal vigilance is the price of keeping it (the Bill of Rights) in working order." – Professor Lawrence Tribe, Harvard Law School 

I am reminded of the critical importance of vigilance as we approach Independence Day 2018. The pictures of innocent children in cages after our government separated them from their parents could not be more striking evidence of violation of the 8th Amendment prohibition of cruel and unusual punishment. President Trump tweeted that all aliens, even those who may be seeking asylum, should be deported “When somebody comes in we must, with no Judges or Court Cases, bring (sic) them back from where they came.”[1] This disparages the right to due process of law guaranteed to all, including noncitizens, by the 5th and 14th Amendments.

Our revered system of checks and balances, designed to protect our democracy, appears to be in peril. The Supreme Court just upheld the Muslim ban despite clear evidence it was motivated by prejudice and politics, not “national security.” Congress is in danger of becoming a “rubber stamp” because members of the President’s party are afraid to oppose his policies or criticize his behavior.[2]

The First Amendment of the Bill of Rights, born out of the founders’ quest to form “a more perfect union,” allows me to retain hope. The brave young survivors of the Parkland High School mass shooting have boldly utilized their right of free speech to educate the public about their demand for sensible gun control legislation. The media have fearlessly exercised freedom of the press to help uncover and expose to the world, through words and pictures, the family separations resulting from implementation of the “zero tolerance” policy. Citizens have powerfully exercised their right to protest in response to that coverage, forcing the government to rescind the policy of separating children from their families, despite the initial insistence of government officials that family separation was “mandated by law.” And lawyers have effectively utilized the right to petition the government to convince Federal District Court Judge Dana Sabraw to order a halt to most family separations at the United States border, and reunification of all families that were separated by the government until the due process guarantee is satisfied.[3]

The vigilance of those high school students, media members, everyday citizens and attorneys has kept the Bill of Rights in working order. On July 4, each of us should honor their vigilance by pledging to exercise vigilance whenever we can.

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[1] @realDonaldTrump, June 24, 2018.
[2] "What he (Trump) has taken is the legitimate hopes and fears people have had for change in Washington and he has morphed that into -- given the strength of his personality -- a whole host of different loyalty tests about him… People come up privately numerous times a day and talk about different frustrations with the President's style…. His caustic nature, his latitude with the truth, but they won't voice those opinions publicly for fear of reprisal." Representative Mark Sanford, Republican, CNN, June 22, 2018.
[3] “California federal judge orders separated children reunited with parents within 30 days,” Alene Tchekmedyian and Kristina Davis, Los Angeles Times, June 27, 2018

Tuesday, June 26, 2018

Loyola Law School Sends Inaugural Team to the International Mediation Competition in Paris

The International Chamber of Commerce (ICC), located in Paris, France, has for the past thirteen years organized an annual International Commercial Mediation Competition that draws students and practitioners from all corners of the globe. For the first time this year, Loyola Law School sent a team of four students—Josh Genzuk (3L), Nate Pezeshki (3E), Nidya Gutierrez (2L), and Patricia Martinez (2L)—to compete in Paris alongside 66 other schools from 32 different countries. The team was coached by Adjunct Professor Cindy Pasternak (LLS ‘76) and Professor Hiro Aragaki, and was assisted by Visiting Scholar Federico Ferraris, who teaches at the University of Milano-Bicocca in Milan, Italy.

From February 2-7, 2018, students competed in around 150 mock sessions to resolve international business disputes through mediation in accordance with the most current version of the ICC Mediation Rules. Unlike other ADR competitions where students take the role of the neutral mediator, in the ICC Competition students act as mediation advocates representing a client. The competing teams were supported by more than 130 professionals from around the world who were experienced in resolving cross-border disputes, some of whom acted as mock mediators and others of whom took the role of judges. The students were evaluated on their negotiating and problem-solving skills, their ability to make good use of the mediator, and their ability to bridge cultural differences.

The Competition is the ICC’s biggest educational event of the year and provides a once-in-a-lifetime opportunity for young, talented students and experienced professionals alike to forge relationships, build skills, and share best practices. “I had an unbelievable experience,” 3L student Josh Genzuk said of his participation in the inaugural team. “The training that we received on negotiation theory and human communication theory in general, was one of the greatest learning experiences that I have ever been a part of. I do not believe that this level of learning and interaction would have been attainable in any other law school class.”

Wednesday, June 20, 2018

Loyola Immigrant Justice Clinic Statement on Family Separations at Border

The Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles joins its colleagues in condemning the widespread family separations occurring along our southern border. Because of repeated misrepresentation of both fact and law by government spokespersons, the following points require clarification:
  • In early May, Attorney General Jeff Sessions announced a policy of "zero tolerance" against individuals, including families with children, arriving at the southern border. This policy is new, entirely a creature of the current administration, and wholly within the executive branch's discretion.
  • This new policy mandates criminal prosecution and incarceration of individuals for misdemeanor first-time unlawful entry. The new, discretionary policy implements incarceration for this misdemeanor. Incarceration is not a requirement of the law.
  • It is this draconian policy of incarceration for a first-time misdemeanor offense that has resulted in the wholesale separation of parents and caregivers from their children, a policy condemned by the American Academy of Pediatrics because of the traumatic effects of separation and the long-term damage done to already vulnerable children. A secondary effect is the overcrowding of federal courts previously focused on prosecution crimes such as human trafficking and the illegal drug and weapons trade. 
  • This policy operates in conjunction with ICE's "surge initiative," a policy of targeting the sponsors of children released from federal custody by the U.S. government into the custody of caregivers. The two operate together to promote the isolation of children from relative caregivers, and to prolong their detention and isolation. 
  • These policies are a violation of the UN Convention on the Rights of the Child, the standards contained with the the UN Declaration of Human Rights, and basic norms of humane conduct. They are a stark departure from past practices, and represent an effort to use children as a weapon to enforce the president's inhumane immigration agenda.