The top justice story of 2015.

"Non-violence," by Flickr user Giorgio Galeotti (CC BY-SA 2.0 license).

"Non-violence," by Flickr user Giorgio Galeotti (CC BY-SA 2.0 license).

Guns kill people—lots of people

There is one theme that links many of the justice stories on our list— from Border Patrol shootings of Mexican teenagers, to the San Bernardino shootings that motivated anti-refugee legislation, to accountability for police shootings, to the San Francisco shooting that caused the anti-sanctuary city backlash, to the racially motivated shootings at a black church in Charleston—gun violence.

According to the Gun Violence Archive, there were 13,277 gun deaths in the United States in 2015. There were 353 mass shootings (defined as four people shot in one incident) this year. On Christmas day alone, twenty-seven people were killed by guns. Some researchers predicted that 2015 would be the year that gun violence overtook car accidents as the leading cause of injury death in the United States.

After the shooting in Charleston that claimed nine lives, President Obama gave a speech emphasizing how exceptional America is when it comes to gun violence:

At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries. It doesn’t happen in other places with this kind of frequency. And it is in our power to do something about it. 

After the October shooting at an Oregon community college that left ten dead and seven injured, Obama asked God to "give us the strength to come together and find the courage to change."

The United States has the most guns per capita of any country in the world, and there is strong evidence that the prevalence of guns contributes to America's high homicide rate. Gun homicides have dropped since the 1990s and have remained steady for about 15 years, but the American gun homicide rate of 2.97 per 100,000 population compares very poorly to Canada's .51, Australia's .14, France's .06, Israel's .09, or Japan's .01 per 100,000 population. That's why the satirical newspaper The Onion posted its article, "'No Way to Prevent This,' Says Only Nation Where This Regularly Happens," for the fifth time after the San Bernardino shootings that killed 21 people in early December. 

Diagnosing the epidemic

Researchers began talking about gun violence as a public health problem over two decades ago, causing gun advocates in Congress to prohibit the Centers for Disease Control from using money to "advocate or promote gun control" in 1996. Two years ago, Obama issued an executive order allowing scientists to reach their own conclusions about guns, but Congress still has not appropriated funds. Even when Wilmington, Delaware asked the CDC to investigate a 45 percent increase in gun violence that looked and felt like an epidemic, the researchers felt constrained by these funding restrictions. 

New year, new hope for reform

Starting January 1, California will be the first state in the country to implement a "gun violence restraining order" system, allowing law enforcement or family members to seek a court order seizing guns from a person who is risk to himself or others. Today's news predicted that President Obama will announce an executive action on background checks for gun purchasers early in the new year. Meanwhile, Texas's open carry gun law goes into effect tomorrow as well. This year, many states controlled by Democrats passed stricter gun control laws, while states controlled by Republicans increased access to firearms. During next year's election cycle, gun control and policy are sure to be major issues at the state, local, and federal levels.

Black Lives Matter?

America's gun violence epidemic disproportionately affects young black men; the gun homicide rate among black men is 15 per 100,000 population. Activist director Spike Lee released the movie Chiraq this year, in which a group of women withhold sex in an attempt to stop gun violence in Chicago; in real life, over 400 people were killed by guns in Chicago this year.

Evidence-based proposals to reduce gun violence in the cities most affected have been discussed for years. Those proposals note research indicating that a very small number of people are responsible for most gun violence, and that interventions to offer incentives for nonviolence have had significant effects in BostonOaklandChicago, and other cities. 

Despite evidence showing their success, it is hard to maintain support for programs that offer resources to people who may otherwise perpetrate gun violence. Instead, legislators often focus on mandatory sentences for gun crimesincreased penalties, or gun enhancements. Among federal criminal defendants, there is a greater racial disparity among those charged for gun crimes than for any other class of offenses, including drug offenses.

Gun violence is our top justice story of 2015 because it affects thousands of people, because of the number and significance of mass shooting stories this year, and because it is an exceptionally American story. But in a year that saw promising reform and mercy in other areas of the criminal legal system, let us be vigilant against attempts to use gun violence as the catalyst for racially disparate prosecutions and increased incarceration. 

We wish you all more justice, and more peace, in 2016.  

Top ten justice stories of 2015, number two.

President Obama and Rep. John Lewis celebrate the anniversary of the Selma march on March 7, 2015.

President Obama and Rep. John Lewis celebrate the anniversary of the Selma march on March 7, 2015.

Black Lives Matter and the New Civil Rights Movement

The Black Lives Matter movement started as a Twitter hashtag in 2012 after George Zimmerman shot and killed 17-year-old Trayvon Martin, then gained momentum after the shooting of 18-year-old Michael Brown last year. And while the movement is most closely associated with law enforcement violence against black Americans, it has also been described as part of a "new civil rights movement."

That movement brought the Confederate flag down at the South Carolina capitolgot the attention of presidential candidate and Vermont Senator Bernie Sanders, and was a runner-up for Time magazine's Person of the Year. Black Lives Matter inspired the racial justice protests at the University of Missouri, which spread to other universities around the country. 

This year brought tragedy as well. The Confederate flag only came down after nine people were shot and killed at the historically black Emanuel African Methodist Episcopal Church in Charleston, South Carolina. And the death of Julian Bond, a leader of the Student Nonviolent Coordinating Committee (SNCC) and a life of civil rights activism, was felt strongly among both the new generation of student activists and civil rights veterans. 

Celebrating anniversaries and breaking new barriers

This was a year of both historic firsts historic anniversaries. Viola Davis was the first black woman to win an Emmy award for best actress in a television drama, Misty Copeland became the first black principal dancer with the American Ballet Theatre, and Lester Holt got a historic promotion to solo anchor of the NBC Nightly News

March 7 was the 50th anniversary of the march from Selma to Montgomery, Alabama. John Legend and Common won the Academy Award for their song "Glory" from the movie Selma, and Legend's acceptance speech noted that there are "more black men under correctional control today than were under slavery in 1850." 

December 1 was the 60th anniversary of the day Rosa Parks refused to give up her seat on a segregated Montgomery, Alabama bus. This year, Loretta Lynch became the first black woman to serve as Attorney General of the United States, fifty years after Thurgood Marshall became the first black Solicitor General. The Supreme Court of 2015 is very different from the court Justice Marshall joined in 1967.

Justice in black and white

This was a busy year for the Supreme Court for cases challenging—and seeking to define—racial discrimination. A bipartisan group of prosecutors asked the Supreme Court to reverse the death sentence of Timothy Foster, who was convicted after the prosecutor struck all potential black jurors from serving. 

The Court upheld the use of "disparate impact" evidence to prove racial discrimination in housing. The case highlights one of the central debates over race: progressives argue that segregation and disparate outcomes are evidence of racism that must be eradicated, whereas many conservatives suggest that efforts to reverse the results of past discrimination would require us to preference members of disadvantaged racial groups.

This debate was at the center of the arguments challenging the constitutionality of the University of Texas's affirmative action plan this month. During the argument, Justice Antonin Scalia suggested that some black students would be better at "slower track" colleges, and Chief Justice John Roberts asked, "What unique perspective does a minority student bring to a physics class?" Teaching Justice Roberts not to bring the Socratic method to a scientific method fight, a group of 2000 physicists wrote a letter in support of affirmative action and diversity in sciences.

That letter included a passage that perfectly frames the recent debates about white supremacy and racial equality in the United States:

We reject the premise that the presence of minority students and the existence of diversity need to be justified, but meanwhile segregation in physics is tacitly accepted as normal or good. Instead, we embrace the assumption that minority physics students are brilliant [6] and ask, “Why does physics education routinely fail brilliant minority students?” 

We reject the premise that the value of black lives needs to be justified, but meanwhile segregation in our society is tacitly accepted as normal or good. Instead, we embrace the assumption that people of color are valuable and ask, "Why does our society routinely fail valuable people of color?" 

Top ten justice stories of 2015, number three.

Texas v. United States and Republicans v. Immigrants

Last November, President Obama announced Immigration Accountability Executive Action. IAEA expanded eligibility for Deferred Action for Child Arrivals (DACA) and created a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The programs do not grant immigration status or relief, but defer the removal of undocumented immigrants who meet certain criteria. If implemented, these policies would help over 4 million people living in the United States.

Notorious Arizona sheriff Joe Arpaio, whose county settled a civil rights lawsuit against him this year, filed his own lawsuit challenging Obama's executive action. A federal judge dismissed the lawsuit, finding that Sheriff Arpaio did not have standing to bring the case. 

The state of Texas also sued over the executive action, and in February, United States District Judge Andrew Hanen issued an injunction against DAPA and expanded DACA. Judge Hanen, who was appointed by President George W. Bush, found that Obama violated the Administrative Procedures Act and invaded Congress's authority to regulate immigration when he issued the executive order. The Obama administration requested that the Fifth Circuit Court of Appeals issue a stay of the injunction while it appealed the case, but the stay request was denied in May, and the Fifth Circuit upheld the district court's injunction in November.

Less than two weeks after the Fifth Circuit decision, the Obama administration asked the Supreme Court to decide the case. The Court also denied Texas's request for an extension of time after the administration expressed concerns that the case would not be decided before the end of the court's term in June. Today, Texas filed a brief asking the Supreme Court not to hear the case, which would leave the appeals court decision in effect. A group of 84 cities and counties called Cities United for Immigration Action filed a brief asking the court to take the case and allow Obama's executive action to go forward. Congressional Democrats also asked the Court to hear the case, as did the attorneys general of Washington, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington, D.C. 

The Supreme Court is expected to decide in January whether to hear the United States's appeal. 

"Some, I assume, are good people."

This summer, celebrity Donald Trump announced another run for president of the United States. In that speech, he made these offensive comments about immigrants from Mexico:

They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists. And some, I assume, are good people.

Trump's platform on immigration includes building a wall along the entire U.S.-Mexico border and "making" Mexico pay for the wall. Trump has also suggested creating an ICE "deportation force" to forcibly remove 11 million undocumented immigrants from the United States.  

Trump is not alone among the Republican presidential candidates. Both Trump and Wisconsin governor Scott Walker proposed ending jus soli, also known as "birthright citizenship," and Republican congressman Steve King of Iowa introduced the Birthright Citizenship Act of 2015 in Congress. But the U.S. Supreme Court held over 100 years ago that birthright citizenship is required by the 14th Amendment to the Constitution, meaning a constitutional amendment would be required to change the law.  

While maintaining his support for birthright citizenship, former Florida governor Jeb Bush used the term "anchor babies" to describe children born in the United States to undocumented immigrant parents. The term is not only offensive, but also misleading: a child cannot petition for his parents to immigrate to the United States until he is 21 years old. 

The fight for sanctuary cities

Unlike plans to build a 2,000 mile wall, arrest 11 million people, or amend the constitution, proposals to end "sanctuary cities" have come close to becoming law. This July, Kathryn Steinle was shot in killed in San Francisco, allegedly by Juan Lopez Sanchez, who had previously been deported. Mr. Lopez Sanchez was transferred from federal criminal custody to San Francisco because of an old warrant, but was released because the case was not prosecuted. Federal authorities knew that Mr. Lopez Sanchez had been transferred to San Francisco, and knew that San Francisco was a sanctuary city, but did not seek a warrant to hold Mr. Lopez Sanchez at the end of his state case. Yet federal authorities blamed local law enforcement for his release.

In the aftermath of the incident, the House of Representatives passed a bill denying federal funding to cities that refuse to honor immigration detainers. Senate Democrats blocked that bill. A detainer is not a warrant, detainers have been used to hold U.S. citizens, and courts have held that cities cannot constitutionally hold people without probable cause.

In October, North Carolina passed a bill banning cities from adopting policies of non-cooperation between local law enforcement and Immigration and Customs Enforcement (ICE); the law also prohibits local law enforcement from accepting foreign countries' identification documents. Similar bills have been proposed in Wisconsin and Texas.  

The sanctuary city movement started in Los Angeles in the 1980s, when local law enforcement found that residents would not talk to police for fear of deportation. Critics of these recent proposals warn that sanctuary city policies make the community safer by encouraging trust in local law enforcement. The fear-mongers have lost more than they have won, but immigrant advocates remain vigilant. 

Fears v. facts

Amid all of this anti-immigrant rhetoric, largely directed at Mexicans, we learned that there has been a net migration from the U.S. to Mexico in the last five years. The Mexican migration to the United States that started in 1965 was the largest wave of immigration in U.S. history, but in recent years, immigration from Mexico has decreased while immigration from India and China has increased.

In 2016, the Supreme Court will decide whether to hear the case now known as United States v. Texas, immigration will almost certainly be a central issue in the presidential election, and we will celebrate the 30th anniversary of conservative hero Ronald Reagan's Immigration Reform and Control Act, most famous for its immigration amnesty program. It remains to be seen whether hope or fear will prevail in the immigration debate, but it seems certain that the debate will be one of the top stories of 2016 as well.   

Top ten justice stories of 2015, number four.

Watching the watchmen

This year, the issues of police violence and misconduct continued to dominate headlines, after 2014 ended with the back-to-back non-indictments of Ferguson police officer Darren Wilson and NYPD police officer Daniel Pantaleo for their involvement in the deaths of Michael Brown and Eric Garner. The past few weeks have felt tragically similar: grand juries declined to indict in the jailhouse death of Sandra Bland or last year's shooting death of 12-year-old Tamir Rice, and Baltimore police officer William G. Porter's trial for the involuntary manslaughter of Freddie Gray ended in a hung jury.

These high-profile court cases have caused many to despair about the prospects of holding police officers accountable for excessive force and other misconduct, especially when that force is used against black bodies. Ta-Nehisi Coates's bestselling book Between the World and Me is a letter to his son, in which he refers to the shooting of Tamir Rice by Cleveland police and writes:

And you know now, if you did not before, that the police departments of your country have been endowed with the authority to destroy your body. It does not matter if the destruction is the result of an unfortunate overreaction. It does not matter if it originates in a misunderstanding. It does not matter if the destruction springs from a foolish policy. Sell cigarettes without the proper authority and your body can be destroyed. Turn into a dark stairwell and your body can be destroyed. The destroyers will rarely be held accountable. Mostly they will receive pensions. 

The despair is understandable, especially when we view police accountability through the lens of criminal prosecution and punishment. Police officers charged with crimes receive the benefit of the doubt to which all defendants are entitled, and which so many accused never truly receive. While we still may have a system in which blue lives matter more than others, the activist movement for law enforcement reform is undeniable, and there have been positive developments this year. 

In March, the Department of Justice found insufficient evidence that Darren Wilson committed a federal crime when he killed Michael Brown. At the same time, however, the DOJ also issued a "scathing" report about the Ferguson police department, finding that "African Americans experience disparate impact in nearly every aspect of Ferguson's law enforcement system." The DOJ also announced that it started keeping a database of deaths in police custody, embarrassed that the Washington Post and The Guardian maintained better statistics than the federal government.

Cops on trial

Although Officer Porter's jury did not vote to convict him of the manslaughter of Freddie Gray, six police officers were charged in that case "with surprising swiftness." Baltimore was not the only city to bring criminal charges against police officers for manslaughter or murder this year: Chicago police officer Jason Van Dyke was charged with first-degree murder in the shooting death of Laquan McDonald; North Charleston officer Michael Slager was indicted for murder in the shooting death of Walter Scott; University of Cincinnati police officer Raymond Tensing was charged with murder for shooting Samuel DuBose; two Albuquerque police officers were charged with murder for shooting James Boyd; and volunteer reserve police deputy Robert Bates was charged with manslaughter for shooting Eric Harris in the back. More police officers have been criminally charged for killing civilians in 2015 than any year in the last decade.

Most of the cases that resulted in charges involved video evidence, and police body cameras became mainstream this yearEvidence suggests that body cameras reduce violence between police and the community, but when violence does occur, police departments often withhold video from the community while allowing the involved officers to view it. Here in San Diego, District Attorney Bonnie Dumanis fought to prevent the release of a private surveillance video of a shooting by an officer who forgot to turn on his own body camera, but finally released it last week. That case, in which Neal Browder shot Fridoon Rawshan Nehad, is a reminder that the police are only one of two "separate, but equally important groups." This year also shined light on the "epidemic" of prosecutorial misconduct in many parts of this country. 

Law and disorder

Early in the year, Ninth Circuit Judge Alex Kozinski wrote an instant classic preface to the Georgetown Law Review titled, "Criminal Law 2.0." In that piece, Judge Kozinski debunks ten myths about the criminal legal system, including the idea that "[p]rosecutors play fair." Judge Kozinski highlighted the misconduct of the Orange County District Attorney's office in the Scott Dekraai capital murder case. Judge Thomas Goethals disqualified the entire office from prosecuting the case after Public Defender Scott Sanders uncovered evidence that police and prosecutors lied about the use of informants in that and many other cases. California passed a law explicitly authorizing this type of disqualification of prosecutors later this year.

Just this month, California state bar judge recommended a suspension for Deputy District Attorney Robert Alan Murray of Bakersfield, who falsified a transcript in a child sex abuse case to include statements the defendant did not make District Attorney Lisa Green said that Murray will keep his job as a prosecutor, and the California attorney general's office previously appealed the dismissal of the case, arguing that the misconduct was not outrageous. 

Although most claims of prosecutorial misconduct involve overreaching to secure convictions, the Tamir Rice case illustrates the other end of the spectrum. The Rice family alleges that Cuyahoga County prosecutor Timothy J. McGinty tried to lose the case before the grand jury, pointing out that he released evidence to the public that was favorable to the defense. And while prosecutors in Philadelphia charged a police officer with perjury this year, it was four years after he admitted in court that he had lied under oath, and only after journalists began covering the case.

We hope for a future in which we see less police violence, less prosecutorial misconduct, and more accountability when law enforcement behaves badly. And while we have a long way to go, we agree with Baltimore Mayor Stephanie Rawlings-Blake, who said this year: 

Change is coming. If you can’t see that, you’re blind. There is a wave in our country that is unrelenting, that will hold officers accountable.

Top ten justice stories of 2015, number five.

Photo by Flickr user Emily Matthews (CC BY 2.0 license).

Photo by Flickr user Emily Matthews (CC BY 2.0 license).

De-carceration nation? 

The United States has five percent of the world's population and over 20 percent of the world's prison population, with over 2.2 million people in prison. After the federal prison population decreased in 2014 for the first time in 30 years, 2015 brought more progress for those seeking to end mass incarceration in the United States.

Starving the beast

This December, in a sign that the tide is turning against mass incarceration, the San Francisco Board of Supervisors voted against a plan to build a new jail in San Francisco. During the vote, the Board President London Breed said that the old jail:

needs to come down, but more than a building we need to tear down the system of mass incarceration it represents. I am not going to support another stand-alone jail to continue to lock up African Americans and Latinos in this city.

The fight against solitary confinement

This year also brought increased attention to the way we treat those we have condemned to live in cages. In June, 22-year-old Kalief Browder, who spent over 400 days in solitary confinement on Rikers Island, committed suicide. His case highlighted the inhumanity of the solitary confinement used in many state and federal prisons. Just a few days after Browder's death, National Public Radio and the Marshall Project published a study of the thousands of people released directly from solitary confinement to the street. Prison rights activists and inmates argued that federal Bureau of Prisons director Charles E. Samuels lied to Congress about the federal system's use of solitary confinement.

This year did see significant reforms of solitary confinement. In September, the California Department of Corrections and Rehabilitation (CDCR) settled a lawsuit with a group of inmates who had spent over a decade in solitary confinement. That settlement ended the policy of indeterminate solitary confinement, and of placing inmates in the Security Housing Unit (SHU) based solely on gang affiliation. New York settled a similar lawsuit in December, limiting the maximum solitary confinement sentence to three days for most violations. 

Opening the door to decarceration

At the federal level, 2015 brought the largest one-time prisoner release of all time, when 6000 people were released in early November. Most of those prisoners were black or Latino men who had been convicted of drug trafficking crimes. The federal sentencing guidelines that govern the length of sentences were reduced in 2014, and the change was made retroactive. Those affected by the change were finally released this year. 

This was also the first full year of implementation of California's Proposition 47, which reduced many felony offenses to misdemeanors and decreased sentences for those crimes. Thousands of inmates were released from California prisons because of Prop 47, and even more people are eligible to have their criminal records changed. Many law enforcement leaders claimed that Prop 47 led to increases in crime, but others—including former San Diego police chief William Landsowne—continued to praise the law as a step in the right direction toward fixing our revolving-door legal system.

We still have a long way to go to achieve substantial criminal legal and sentencing reform. Ta-Nehisi Coates forced us to consider the racist roots of our current system of mass incarceration, arguing that "it is not possible to truly reform our justice system without reforming the institutional structures, the communities, and the politics that surround it." Senators Dick Durbin of Illinois and Charles Grassley of Iowa sponsored a bill to significantly reform mandatory minimum sentencing, which removes sentencing discretion from judges and plays a serious role in the size of our prison population. And after President Obama became the first sitting president to visit a federal prison, Fordham Law Professor John Pfaff explained why focusing on sentencing reform for "nonviolent" offenses is not enough.

Just Mercy

While federal and state sentencing reform gave thousands of people years of their lives back, thousands more remain in prison. For most of the nation's prisoners, their only hope for returning home is to receive clemency: a pardon or a sentence commutation from their governor, for state inmates; or from President Obama, for those in federal custody. 

In 2014, the Department of Justice encouraged people serving federal sentences for nonviolent offenses to seek executive clemency—that is, mercy from the president of the United States to shorten their sentences. A group of lawyers—including federal defenders, the ACLU, Families Against Mandatory Minimums, the American Bar Association, and the National Association of Criminal Defense Lawyers—started Clemency Project 2014, to provide free legal assistance to people who qualify for executive clemency under the DOJ's stated guidelines. 

Nearly 33,000 people serving federal sentences applied for clemency; over half did not meet the criteria set out by DOJ. The remaining 15,000 applications seemed stuck in a bureaucratic process that caused many to fear that the Obama administration would leave office before many clemency decisions were made. As of mid-December, President Obama had the lowest clemency rate of any president other than George H.W. Bush. And then, just a week before Christmas, President Obama announced that he had commuted the sentences of 95 more people. Most of those men and women had been convicted of nonviolent drug offenses. 

Bryan Stevenson, director of the Equal Justice Initiative and hero to those of us who work to create a more just legal system, published his book Just Mercy in late 2014; the paperback was the #10 bestselling book of 2015. May his words on mercy guide us into a more just 2016:

I’ve come to believe that the true measure of our commitment to justice, the character of our society, our commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the privileged, and the respected among us. The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.

Top ten justice stories of 2015, number six.

Taming Big Brother

It's been two years since former government contractor Edward Snowden revealed the National Security Agency's expansive surveillance programs to the public. This year, for the first time in forty years, Congress passed a law to reform government surveillance. The USA FREEDOM Act, passed in June, ended the "bulk collection" of Americans' telephone records, instead requiring that the government obtain a court order for phone records of terrorism suspects. The Electronic Frontier Foundation explained the limitations of the new law, while noting that it represents "an overdue course correction." 

This year brought increased attention to email privacy as well. Congress is considering reforms to the Electronics Communication Privacy Act (ECPA) of 1986 that would require agencies to obtain warrants before reading emails. California passed its own version of the law, the CalECPA, requiring a warrant for law enforcement to access emails, texts, or a technology user's location. The law was sponsored by the EFF and other privacy rights groups, and was supported by many major technology companies. Those same groups opposed the Cybersecurity Information Sharing Act (CISA), which Congress included in the omnibus budget bill it passed in mid-December. CISA allows the sharing of digital user information "notwithstanding any other provision of law," and critics worry that it will be used to facilitate warrantless searches.

The Department of Justice announced in September that it would reform its use of "cell site simulators," often known as "stingrays." DOJ must now obtain a search warrant before using a cell site simulator to collect information during a criminal investigation. The Department of Homeland Security announced a similar policy in October

The Supreme Court decided two important cases in 2015 that limited police officers' power to perform warrantless searches. Rodriguez v. United States held that police cannot prolong a traffic stop to wait for a drug-sniffing dog to arrive, and Los Angeles v. Patel overturned a law requiring "innkeepers" to allow police to inspect their guest books upon request. Patel has implications for digital privacy as well: just as the hotel owners resisted showing their guest records to law enforcement, many technology companies have attempted to protect user privacy in the face of requests for information.

At the year's end, the Supreme Court announced that it would decide two cases addressing the constitutionality of state laws requiring drivers to take blood tests after being arrested for driving under the influence. Next year promises to bring even more news about the evolving balance between privacy and (possible) security, both in the Court and in Congress. As Edward Snowden said in this year's interview with John Oliver:

If we sacrifice our values because we're afraid, we don't care about those values very much. 

Top ten justice stories of 2015, number seven.

"Don't rape," by Flickr user Richard Potts (CC BY 2.0 license). 

"Don't rape," by Flickr user Richard Potts (CC BY 2.0 license). 

Changing the conversation about sexual violence

While this year featured Chancellor Angela Merkel as Time magazine's Person of the Year, and former Secretary of State Hillary Clinton is the front runner for the Democratic presidential nomination, perhaps the most feminist justice story of the year was the spotlight on sexual violence against women. No story demonstrates changing attitudes toward sexual assault like the overnight credibility of (in some cases) decades-old rape allegations against comedian Bill Cosby. 

Cosby and the court of public opinion

Last October, a video of comedian Hannibal Buress discussing rape allegations against Bill Cosby went viral, and by the end of this year, nearly sixty women have accused Cosby of sexual assault. Barbara Bowman wrote an op-ed in the Washington Post expressing her anger that her and other women's accusations were not believed until a man with a microphone repeated them. New York magazine published a powerful cover story in July featuring thirty-five of Cosby's accusers, noting that their accounts of sexual assaults starting in the 1960s and continuing through the 1990s "function almost as a longitudinal study—both for how an individual woman, on her own, deals with such trauma over the decades and for how the culture at large has grappled with rape over the same period." 

Bill Cosby has denied the allegations, and has been sued for defamation by some of the accusers after alleging that money motivated their accusations; he has countersued some of the accusers for defaming him. This summer, however, a 2006 deposition was released, revealing that Cosby previously admitted using quaaludes "as part of his effort to have sex with women." Following Hannibal Buress's lead, comedians from Tina Fey and Amy Poehler to Larry Wilmore tore into Cosby. Many universities and colleges that had granted honorary degrees to Cosby over the years either rescinded those degrees or are considering doing so. And while explaining that he could not revoke Cosby's Presidential Medal of Freedom, President Obama commented:

If you give a woman -- or a man, for that matter -- without his or her knowledge a drug and then have sex with that person without consent, that's rape.

This month also saw the conviction—by an all-white jury—of Oklahoma ex-police officer Daniel Holtzclaw, who was charged with raping thirteen black women. Many of the women testified that they felt afraid to come forward because of Holtzclaw's status as a police officer, and also because he threatened to arrest them. The Holtzclaw victims and the Cosby accusers expressed similar hopes: that their stories would inspire others who have survived violence at the hands of powerful people to come forward.

Campus rape and the changing definition of consent

The discussion of sexual violence on college campuses also continued this year. Columbia student Emma Sulkowicz, who claims that she survived a campus sexual assault, carried a mattress around the campus during her senior year as a performance art protest. The student she accused was cleared in a school disciplinary hearing, and has sued the school for harassment. After passing an "affirmative consent" law last year, requiring college sexual assault investigators to ask if both parties gave affirmative consent to sex, California enacted a law requiring sexual consent education in the state's high schools starting next year.

This year, we saw changing attitudes about the definition of rape, as well as increased accountability for and conversation about sexual assault. But as Harvard law professor Jeannie Suk recently wrote

Sexual assault is a serious and insidious problem that occurs with intolerable frequency on college campuses and elsewhere. Fighting it entails, among other things, dismantling the historical bias against victims, particularly black victims—and not simply replacing it with the tenet that an accuser must always and unthinkingly be fully believed. 

Violence against women is an international problem, and progress is still desperately needed. In March, the United Nations released its findings that 35 percent of women worldwide experience violence in their lifetimes. Mexico is experiencing what some are calling an "epidemic" of femicide—the murder of women, often by their romantic partners. We hope that the United Nations, the United States, and the global community will make even more progress on issues of gender violence in 2016.  

Top ten justice stories of 2015, number eight

Rainbow lights decorated the White House on June 26, 2015. #LoveWins

Rainbow lights decorated the White House on June 26, 2015. #LoveWins

8. #LoveWins      

The most talked-about Supreme Court decision of 2015 was Obergefell v. Hodges, which established a right to same-sex marriageObergefell was decided on June 26, exactly two years after the Supreme Court struck down part of the Defense of Marriage Act in United States v. Windsor, and exactly thirteen years after Lawrence v. Texas, which held that states could not criminalize homosexual conduct. Justice Anthony Kennedy wrote all three opinions.

Famous constitutional scholar Akhil Reed Amar criticized Justice Kennedy's opinion for relying too much on liberty and not enough on equality. Chief Justice John Roberts wrote (and read from the bench) a dissent claiming that the Constitution had "nothing to do with" the opinion. Others compared the last paragraph of that opinion to poetry: 

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered. 

Raining on the pride parade

Before the ink was dry on the decision, Texas Governor Greg Abbott issued a statement claiming that "no Texan is required by the Supreme Court's decision to act contrary to his or her religious beliefs." 

In September, Kentucky court clerk Kim Davis cited her religious beliefs when she refused to issue marriage licenses to same-sex couples. She spent five days in jail for contempt of court, before emerging from the jailhouse to hold a rally with Republican candidate Mike Huckabee while "Eye of the Tiger" played. 

As of October, judges in at least nine Alabama counties were refusing to issue marriage licenses to any couples. They relied on a 1961 law stating that clerks "may" (not "shall") issue marriage licenses; many believe the law was passed to avoid issuing interracial marriage licenses. 

As this small group of state and local officials resisted the Supreme Court's decision, marriage equality made progress around the world.

The "small country with a big message for equality"

The Supreme Court decision in Obergefell came just a month after Ireland became the first country in the world to legalize same-sex marriage by a popular vote. Sixty-two percent of Irish voters, including thousands who flew from around the world to come #hometovote, approved a constitutional amendment to allow same-sex marriage. Afterward, Prime Minister Enda Kenny referred to Ireland as a "small country with a big message for equality."

Ireland wasn't the only country to take action on marriage equality this year. A week before Obergefell, Mexico's Supreme Court issued an opinion finding same-sex marriage bans unconstitutional. Under Mexican law, this still required couples to go to court in states where the law prohibits same-sex marriage. Because of couples who did just that, the first same-sex marriage in Tijuana happened in August, following the first same-sex marriage in Baja California—in Mexicali—this January. Puebla held its first same-sex marriage in August.

In Slovenia, the parliament passed a law allowing same-sex marriage in March, but because of a constitutional challenge, there will be a popular referendum on December 20. Mexico's Supreme Court overturned a ban on same-sex adoption in August, and Colombia's Supreme Court did the same in November. After a decade of debate, Chile legalized same-sex civil unions in April, and began performing ceremonies in October.

Five years ago, in the Perry v. Schwarzenegger case that overturned California's ban on same-sex marriage, Judge Vaughn Walker wrote:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. 

Judge Walker's comment foreshadowed the transgender progress that went hand-in-hand with marriage equality this year. 

"Transgender" becomes a trending topic

Caitlyn Jenner came out as transgender this spring, and made Time's short list for Person of the Year. The streaming television show Transparent, and its star Jeffrey Tambor, won both Emmy and Golden Globe awards for telling the story of a 70-year-old man who comes out to his family as transgender. The show has been nominated again for the 2016 Golden Globes and for two Screen Actors Guild awards.  Actor Eddie Redmayne was also nominated for a SAG award for his portrayal of a transgender woman, and there is a campaign to nominate the transgender stars of Tangerine for Academy awards.

The rise in transgender visibility has extended beyond the entertainment world. In January, President Obama was the first person to use the word "transgender" in his State of the Union address. The next month, he spoke out in favor of open military service for transgender people, and the government agreed to pay for sex reassignment surgery for "Wikileaker" Chelsea Manning. Last month, Obama publicly supported the Equality Act, which would add LGBT protection to the Civil Rights Act.

Oregon swore in the nation's first openly LGBTQ governor, Kate Brown, in February. Salt Lake City, Utah, elected a lesbian mayor in NovemberOpen transgender service in the U.S. Air Force began in June. Dallas,Texas, expanded its anti-discrimination law to include transgender people, while Houston overwhelmingly repealed the HERO Act, which included LGBT protection in the city's nondiscrimination laws. New York state governor Andrew Cuomo announced an executive order to protect transgender New Yorkers after the legislature failed to act.

Violence against transgender people is still a serious problem in the United States and around the world. This is especially true for transgender people in custody. But transgender rights are gaining ground globally as well. Norway proposed legislation to let children as young as seven to change their legal genderColombia also legalized gender registration, Vietnam passed a law allowing people to register a gender change after sex reassignment surgery, and Thailand opened the first transgender health clinic in Asia.  

Let's hope that 2016 brings more "equal dignity" for all LGBTQ people.

 

 

Top ten justice stories of 2015, number nine...

Our #9 justice story of 2015 flared up into one of the biggest stories of the week yesterday, when Republican presidential candidate Donald Trump suggested that the United States should exclude all Muslims from entering the country

9. Slamming the door on refugees Muslims.

One of the biggest justice stories of 2014 was the Central American child refugee crisis that brought 68,000 children to the southern border, especially during the spring and summer months. By the end of last year, the Obama administration had announced a process to allow parents inside the U.S. to apply for refugee status for their children in Central America. By the middle of 2015, fewer children were being detained at the southern border, perhaps because the U.S. gave Mexican authorities tens of millions of dollars to conduct a "ferocious crackdown on refugees." Last year's crisis unsurfaced intense hostility to illegal immigration  along the U.S.-Mexico border, but also brought out the better angels of our nature

The refugee crisis that caught the world's attention this year had little to do with the U.S.-Mexico border. The Syrian refugee crisis, which the media called a "migrant crisis" for legal reasons, was the largest refugee crisis since the end of World War II. The United Nations High Commissioner for Refugees counts 4,288,672 refugees who have been displaced from Syria. Germany alone expected 800,000 refugees to arrive by the end of 2015, causing tension between Chancellor Angela Merkel and her right-wing coalition partners. Anti-refugee attitudes led to increased right-wing popularity in SwedenAustria, and Denmark. Those attitudes worsened last month. 

A dark day and our "unfinest hour"

On November 13, 129 people were killed in the second-deadliest terrorist attack since September 11, 2011 (the 2004 Madrid train bombing killed 191). Some reports claimed that one of the terrorists carried a Syrian passport. Before the weekend was over, almost all of the Republican candidates for president spoke out against President Obama's plan to resettle 10,000 Syrian refugees, with Ted Cruz and Jeb Bush suggesting that only Christian refugees should be admitted. 

Within a week of the tragedy, 31 state governors had stated publicly that their states would not resettle refugees. Although the International Rescue Committee debunked myths about Syrian refugees, and twenty national security veterans– including Henry Kissinger, Madeleine Albright, and David Petraeus–urged Congress to back off on anti-refugee legislation, the House of Representatives passed a law making it harder for Syrians to come as refugees. 

Editorial boards from the New York Times to the Boston Globe to the Houston Chronicle rejected the conservative proposals. California governor Jerry Brown promised to accept Syrian refugees, and Washington governor Jay Inslee expressed his support in a New York Times opinion piece


President Obama gave a press conference in Turkey, which has resettled over 2 million Syrian refugees (two hundred thousand times more than in Obama's proposal), and reaffirmed America's values:

We also have to remember that many of these refugees are the victims of terrorism themselves -- that’s what they’re fleeing. Slamming the door in their faces would be a betrayal of our values. 

But the sharpest criticism came from the country our founding fathers once fled. The Economist pulled no punches in an editorial titled "Unfinest hour," reminding us that over half of Americans opposed admitting Jewish refugee children during the Hitler regime, and calling the current conservative anti-refugee rhetoric "lamentable."  

Looking back and giving thanks

The post-Paris attack rhetoric in the U.S. sounded dissonant in the days leading up to Thanksgiving. In his Thanksgiving address to the nation, President Obama compared the Syrian refugees to the pilgrims who came to America fleeing "persecution and violence in their native land." John Oliver of HBO's "Last Week Tonight" put a finer point on the comparison:

There was only one time in American history when the fear of refugees wiping everyone out did actually come true, and we'll all be sitting around a table celebrating it on Thursday. 

Here in San Diego, we also had recently celebrated the fortieth anniversary of the use of Camp Pendleton as a refugee camp for people fleeing Vietnam. "Operation New Arrivals" brought 50,000 Vietnamese refugees to Camp Pendleton following the fall of Saigon in April 1975. Many of the same Marines who fought in the conflict built the camp with only a couple days' notice, and San Diego remains a "refugee hub" to this day, a continuing testament to the value of opening our doors and arms to people who need our help. 

From bad to worse

Donald Trump, who announced his candidacy for president in June with a speech calling Mexicans "rapists," and who is currently in first place in pre-primary Republican polls, defended the idea of shutting down mosques in the immediate aftermath of the Paris attacks. After suggesting that he would also support registering Muslims in a database and issuing ID cards, an American-Muslim who serves in the Marine Corps tweeted a picture of his military ID and the #MuslimID hashtag, and tens of thousands more joined in. 

Last week, Texas Governor Greg Abbott authorized a lawsuit to attempt to block the resettlement of refugees in Texas. (More on Texas's love of anti-immigration litigation later in our list.)

Yesterday, December 7, Trump proposed prohibiting all Muslims from traveling to the United States, and spoke positively of FDR's executive actions during World War II allowing the detention of Italian, German, and Japanese citizens. Trump's announcement followed last week's shooting in San Bernardino, California, which killed 14 people; one of the perpetrators was an American-born Muslim and his wife immigrated from Pakistan on a fiancée visa

The silver lining

Twenty-one refugees are arriving in Texas this week, and so far Obama has not reneged on his promise to resettle 10,000 Syrians. Germany surpassed its expected 800,000 refugees, and is on track to admit a million people this year

As for Trump? The White House has said that his comments disqualify him from being president, and even Dick Cheney said the proposal "goes against everything we stand for and believe in."

Much to our surprise, we agree with Dick Cheney. 

This is not what we stand for. This is not what we believe in.

Let's do better next year.

 

Top ten justice stories of 2015

The first of our top ten justice stories of 2015 is about law enforcement violence on the U.S.-Mexico border, where we live and work. While stories of police brutality in cities around the United States will make an appearance further up our list, the attempt to rein in "The Green Monster" is our #10 pick for the most important justice story of the year.

Important justice stories are impossible without good reporting. We are grateful to Bob Ortega and the Force at the Border page from the Arizona Republic, and to Nigel Duara of the Los Angeles Times, for all of their great work this year.

10. The end of Border Patrol immunity? 

This September, United States Border Patrol Agent Lonnie Swartz was indicted for second-degree murder, the first-ever indictment of an agent for a cross-border shooting. Back in 2012, Swartz allegedly killed 16-year-old Jose Antonio Elena Rodriguez by shooting him 10 times, including 8 shots to the back. Swartz was on the U.S. side of the border fence in Nogales, Arizona; José was on the other side in Nogales, Sonora. 

Swartz has claimed that he acted in self-defense against people throwing rocks over the fence. According to the forensic analysis done by law enforcement in Sonora, Swartz “emptied his service handgun on the 16-year-old, reloaded, and kept firing.” Two videos of the incident were recently disclosed to the defense under a protective order. 

Swartz pled not guilty in October, and he is presumed innocent. 

But this rare indictment of a CBP officer suggests that maybe the nationwide calls for reform and accountability of law enforcement have finally reached the nation's largest law enforcement agency.

Watch the throne

Last year, former Drug Czar R. Gil Kerlikowske was confirmed as Commissioner of Customs and Border Protection. He promised to bring more transparency to the agency, which he believes expanded too quickly after 9/11. Last May, he released the results of a study by the Police Executive Research Forum that reviewed 67 case files involving CBP's use of deadly force between 2010 and 2012. That report suggested that CBP officers sometimes created situations that led them to use deadly force, and recommended changes to CBP's use-of-force policy. Kerlikowske removed CBP's head of internal affairs and temporarily replaced him with Mark Morgan, an FBI investigator who promised to review the cases mentioned in the PERF report. Morgan was back at the FBI by the end of 2014.

This year, CBP conducted a months-long trial of body cameras (more on body cameras coming later in our top ten), ultimately deciding against requiring officers to wear them. The top two posts in CBP Internal Affairs were vacant until June. In November, the Department of Justice announced that its investigation into the death of Anastasio Hernandez Rojas would end with no charges. Hernandez Rojas died from a heart attack after being shocked with Tasers by agents at the San Ysidro border crossing. This summer, Kerlikowske reported that the CBP had cleared officers in all but three of the 67 cases under review. Swartz’s shooting of José Antonio Elena Rodriguez was one of the final three cases.

Making the border patrol pay (maybe).

The Swartz case highlights the fight for Border Patrol accountability in civil court as well. The parents of José Antonio Elena Rodriguez sued Lonnie Swartz in civil court for violating their son's civil rights, and Swartz moved to dismiss the lawsuit. Swartz made two arguments: first, that the right against excessive force found in the Fourth Amendment does not apply to foreign nationals on foreign soil; and second, that he was entitled to qualified immunity from liability.   

Qualified immunity, one of the big legal stories of last year,

shields public officials from being sued for actions that fall short of violating a clearly established statutory or constitutional right.

Swartz argued that foreign nationals on foreign soil are not protected by the U.S. Constitution. On the other hand, if foreign nationals do have Fourth Amendment rights on the other side of the border, those rights are not "clearly established." Swartz relied on this year's en banc, per curiam decision of the Fourth Circuit Court of Appeals, Hernández v. United States The plaintiffs in Hernández are the parents of Sergio Adrian Hernández Guereca. In 2010, 15-year-old Sergio was shot in the head and killed by Border Patrol agent Jesus Mesa, Jr., who was standing on the El Paso side of the U.S.-Mexico border. That court, which has authority over cases originating in Texas, Louisiana, and Mississippi, ruled that foreign nationals on foreign soil, without a "significant voluntary connection" to the U.S., cannot raise Fourth Amendment claims. The court found that Mesa was protected by qualified immunity, because any right that Hernández may have is not "clearly established." 

Chief District Judge Raner Collins disagreed with the Fourth Circuit, ruling that in Rodriguez's case, the Fourth Amendment does apply. Judge Collins also rejected Swartz's argument about qualified immunity, noting: 

at the time he shot J.A., Swartz was an American law enforcement officer standing on American soil and well-aware of the limits on the use of deadly force against U.S. citizens and non-citizens alike within the United States.

The plaintiffs in the Hernández case, which is now Hernández v. Mesa, have asked the Supreme Court to take the case.  On November 30, the Supreme Court asked the Solicitor General to weigh in, suggesting that the Supreme Court may decide to hear the case next year.  Meanwhile, the criminal trial of Lonnie Swartz has been continued until January. The future of Border Patrol immunity and accountability is likely to continue to be a big story in 2016.