Game On, Sports Gambling

No, the U.S. Supreme Court didn’t just legalize sports betting this week.

But it did pave the way for your state to legalize it if it wants to.

Before Monday, a federal law from 1992 barred any state from doing that. The only exceptions were Nevada, Oregon, Delaware, and Montana because their laws were grandfathered in.

Then a few years ago, New Jersey wanted to legalize sports betting, so it passed a law and challenged the federal ban in court. And it won.

The Supreme Court said the federal ban violated a principle of dual sovereignty that underlies the Constitution. The idea is that Congress can regulate a lot of things, but it can’t order the states to pass certain laws or not pass others. It may regulate people’s conduct to the extent the Constitution permits, and if it does then federal law is supreme. But it can’t tell state legislatures which laws to write for themselves.

“Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. [This law] is not.”

You Can’t Rely on Prior Wages or Salary to Pay Women Less

One of the last cases of Judge Reinhardt’s life had to do with the Equal Pay Act of 1963.

He wrote the decision, which was published last week, and it begins with these words:

“The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex. The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the answer is clear: No.”

This decision means that employers can’t defend against claims of unequal pay under the EPA by pointing to an employee’s prior wages or salary. They can’t rely on prior pay either by itself or in combination with other factors to justify unequal pay. The decision applies to California and eight other states.

Under the Equal Pay Act, you can only pay men and women differently if it’s based on seniority, merit, productivity, or “any other factor other than sex.” This case had to do with that fourth, catch-all exception.

The Court ruled that prior salary doesn’t count because “any other factor” besides sex refers to legitimate job-related factors like hours, shifts, training, education, experience, ability, or past job performance. To rule otherwise would allow employers to defend a sex-based pay differential on the basis of the very pay differentials the EPA was designed to close.

“Rather than use a second-rate surrogate that likely masks continuing inequities, the employer must instead point directly to the underlying factors for which prior salary is a rough proxy, at best, if it is to prove its wage differential is justified under the catchall exception.”

He’s right, and it’s now the law in the Ninth Circuit.

The Truth About Facebook

Ask this expert on data science what Congress should have asked Mark Zuckerberg last week, and she’ll say, nothing.

If that surprises you, please understand that these hearings are not designed to deliver the truth. They’re designed to tell the public that, if there’s a problem, the government is doing something about it. So you’re not gonna get much straight talk. It’s not that no one cares. But the problem is bigger than Facebook or the United States, as we’ve explained before.

And people have a right to know.

Now, I’m no data scientist, but I spend a lot of time on these issues in my line of work, so here are some basic truths you should know if they haven’t sunk in yet. I give the same advice to clients whenever it comes up.

  1. You are not the customer. You are the product. Their business is to derive as much information about you as possible and sell it to others. Governments like this, too, because it’s a great way to study people, keep tabs on them, and even manipulate them. No one will stop doing this for the foreseeable future.
  2. You should assume that you create a permanent record of everything you do on your phone or the internet. You can’t avoid that by logging out of an app or even deleting it. The only way may be to give up electronic devices altogether and live off the grid. And good luck with that.
  3. Your friends and family don’t decide what you see when you log in. Facebook does. Or whichever other company does. Obviously, they want to show you what they think you want to see so you’ll spend more time on their platform. But they can also manipulate what you see—or even what you think you want to see.

Welcome to the 21st century. It’s no wonder Americans are throwing up their hands over privacy. But at least we can still debate and, hopefully, decide how we want to live in the United States. The same does not apply around the world.

 

The End of Absolute Immunity for Prosecutors

Another outstanding feature by The Marshall Project.

It’s written by a senior federal trial judge in New York. For 23 years, he’s sentenced the likes of murderers, rapists, gangsters, and fraudsters—some to prison for the rest of their lives. But he says it’s time to put an end to absolute immunity for prosecutors.

Absolute immunity is what it sounds like. It doesn’t just protect prosecutors who follow the rules but make mistakes. It protects those who knowingly and purposely break the rules.

Believe it or not, they can do all kinds of dirty deeds to convict you—even to frame you, on purpose—and you have no right to sue them for it. Crazy, huh? They can withhold evidence, put on false evidence, coerce witnesses to testify against you, or worse. No matter the facts, you have no civil rights or remedies against them as a matter of law.

But as the author notes, cops don’t have absolute immunity; they have a form of qualified immunity, so what’s the difference?

For an overwhelming majority of prosecutors, there would be no difference.

But truly bad actions should suffer civil and criminal consequences for their obstruction of justice. For more on why, see this blog post by the American Constitution Society.

Hidden Bias and Fair Trials

You may serve on a jury one day, and if you do, your thought process will mean a lot to the people involved.

Those people, and the system as a whole, will rely on you to give them a fair trial.

To that end, one court has created a video to help potential jurors understand their hidden biases. These are the mental shortcuts we use to make decisions about people or things. We all have them, and they help us make sense of the world around us. We all have them because we’re all human, and we often don’t even realize it.

The thing is, they’re often wrong. For example, one study looked at scientists who were hiring a laboratory manager. The experiment was that all of them were given the exact same resume to review except some copies bore a man’s name and others a woman’s name. Well, guess what? Both male and female scientists scored the male candidate as more competent and worthy of the job even though the resumes were exactly the same. Without realizing it, these scientists harbored a hidden bias about gender, and it clouded their judgment.

The video is shown during jury selection in the U.S. District Court for the Western District of Washington. It features three people: the top federal prosecutor for the district, a senior trial judge there, and a prominent defense lawyer. The lawyer explains the value of talking about hidden bias this way:

“You have two choices: either talk about it or don’t talk about it, and haven’t we seen what happens when we don’t talk about it?”

The upside is that by taking the time to really think about things, and by taking in more information, we all make better decisions.

The Modern Public Square

This week brought us another unanimous U.S. Supreme Court case that’s arguably more important because it concerned the First Amendment.

The issue was a North Carolina law that made it a felony for registered sex offenders to use any social-networking site that let minors join. So, to be clear: that’s any social-media site, period, that let minors join. That meant Facebook, LinkedIn, Twitter, or pretty much any other social-media site. The law was even broad enough to include websites like Amazon, WebMD, and the Washington Post. So you almost couldn’t use the Internet.

The defendant was one of more than 1,000 people who’ve been prosecuted under the law. In 2002, when he was 21 years old, he had sex with a 13-year-old girl, and he was charged with it. He pleaded guilty to it and registered as a sex offender. Then the law passed in 2008.

In 2010, he happened to get a traffic ticket dismissed in court, whereupon he logged on to Facebook and posted this to his timeline: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent … Praise be to GOD, WOW! Thanks JESUS!”

He was indicted for that.

He moved to dismiss on the ground that the law violated the First Amendment, but the trial court denied it. He was convicted at trial and given a suspended prison sentence.

On appeal, the state courts duked it out. The court of appeals agreed with the guy, finding that the law violated the First Amendment. But the state supreme court reversed, finding the law “constitutional in all respects.”

Finally, the federal high court unanimously struck down the law because it plainly applied to websites like Facebook, LinkedIn, and Twitter among others. Facebook itself had 1.79 billion active users—or three times the population of North America.

The Court called these sites “integral to the fabric of our modern society and culture.” They had become our main sources for sharing current events, participating in the public square, and exploring human thought and knowledge. To foreclose access to them was to foreclose the legitimate exercise of First-Amendment rights.

Yes, a state could pass specific, narrowly-tailored laws that regulate the type of conduct that portends crime, like contacting a minor or using a website to gather information about one.

But it couldn’t just cut people off from the public square.

A Model Penal Code for the 21st Century

Charging decisions, which we wrote about last week, matter for many reasons. They drive plea bargains, and they affect sentencing. You file a felony, for example, so that the guy will plead to a misdemeanor without giving you much trouble. It happens all the time.

Bad charging decisions, though, don’t just cause wrongful convictions or unjust sentences.

They cause other consequences that continue to torment you after you’ve served your sentence. Your actual sentence may include your jail or prison time, the fines you must pay, or the terms of probation you must follow. You did the crime so you should do the time and pay the fine, right? Okay, but then even after you do, you still may not be able to cast a vote, land a job, rent a home, hold a license, or get a loan. These are the so-called collateral consequences of a conviction.

But the future may be brighter.

Last week, the American Law Institute approved major changes to the Model Penal Code to address these consequences. The ALI is the leading scholarly body that aims to clarify, modernize, and otherwise improve American law. The Model Penal Code is its seminal work in the area of criminal law. It doesn’t have the force of law by itself, but it’s influential. Most states have used it in passing their own laws, and courts cite to it often.

The new provisions would require you to prove, by clear and convincing evidence, that a collateral consequence of your conviction imposes a heavy burden on your ability to rejoin society and that public safety doesn’t need you to suffer it.

If you do that then a court could relieve you from that burden. A court could even issue a certificate of rehabilitation that shields employers, landlords, or others who give you a second chance from civil liability.

Already, state legislatures have been proposing and passing laws to give people a fair shake to prove themselves before dismissing them based on the past.

Hopefully, that momentum keeps building. We should consider what it means to have a record, anyway, when most people either have one, know someone close to them who does, or would have one but for the grace of God. And we should consider how we judge people altogether in a world in which our every action can leave a permanent trace.

The twenty-first century may demand it.

The New Justice of the U.S. Supreme Court

Now that Neil Gorsuch has been sworn in, we’ll begin to find out how he wields the law as a member of the highest court in the land.

Some say he’s a natural successor to the Justice whose seat he fills, Antonin Scalia. Here is a profile of Mr. Gorsuch that compares his views to those of Mr. Scalia on matters of criminal law, interstate commerce, and more.

Justice Scalia’s legacy may be complicated, but he defended the rights of the accused in important ways. He championed the right of confrontation, for example. It’s in the Sixth Amendment, and it means that if you’re charged with a crime, your accusers must take the witness stand, testify under penalty of perjury, and face cross-examination in open court. They can’t hide behind hearsay and innuendo. Scalia also championed your right to a trial by jury—that dwindling bastion of freedom and democracy—and he looked after the Fourth Amendment in an age of new technologies.

We hope Justice Gorsuch hews to that heritage and builds on it. Justice Scalia, for example, didn’t care much for the Miranda rule, but we may come to appreciate it more in this century than we did in the last. We may feel differently about the meaning of due process when we see that governments can exercise total dominion over their citizens. We may value legal limits on their power more as we realize that no other limits exist.

To that end, some point optimistically to Gorsuch’s views on overcriminalization, the rule of mens rea, and the rule of lenity.

Others are less sanguine about him in general.

But left, right, or center, most would agree, in the end, with this comment: “We think that all judges should look to the text and history of the Constitution. But [we hope] he will follow all parts of the Constitution, in particular those parts that were added in the 19th and 20th centuries that made our Constitution more equal, more just, more free and pushed us further down an arc of progress.”

Saving Basic Civil Justice in America

As you may know, the new administration’s proposed budget aims to eliminate all federal funding for the Legal Services Corporation. As in, no funding at all. Zero. Zilch. Nothing.

Why is that a problem?

The LSC is the single-largest funder of civil legal aid for low-income Americans. In other words, if you’re poor and accused of a crime, you’d have access to a lawyer because we fund a public-defense system for that (albeit poorly); but in civil matters, you’d have nothing to help you deal with a legal problem if it weren’t for the LSC and other agencies like it.

Congress created the LSC in 1974 through a bipartisan vote. At the time, President Nixon said it would address “small claims in the Nation’s eye [that] loom large in the hearts and lives of poor Americans.”

Today, the agency funds over 130 nonprofits that handle more than 750,000 cases each year for low-income clients. Overall, it helps nearly two million people per year for less than $1.20 per taxpayer. It keeps families in their homes, finds affordable housing for veterans, protects seniors from predatory scams, and provides lifelines to victims of natural disasters.

Who qualifies for help?

Households who live at or below 125% of the federal poverty line. That’s about $15,000 for an individual or $30,000 for a family of four.

Already, the legal profession is mobilizing in defense. The American Bar Association immediately issued a statement condemning the plan. Even before the administration unveiled it, the leaders of 157 major law firms wrote to explain why the LSC represented the kind of public-private partnership the government should encourage, not eliminate. That was followed last week by a letter to Congress from the deans of 166 law schools, whose clinical programs work with nonprofits that rely on the LSC. And that was followed this week by a letter to Congress from 185 of corporate America’s chief legal officers. For the latest summary of these developments, see here.

Please lend your voice, too. The ABA has set up an easy way to send a message to your members of Congress, and you can find the campaign on Facebook too. Please call on them to fund the LSC responsibly. The ABA will print these messages and hand-deliver them to each member of Congress between April 25 and 27.

Because there’s no justice without access.

The Future of Face-Recognition Technology

Face it: the future is already here. And by default, your face is ever more likely to be found in a law-enforcement database. It’s as easy as getting a driver’s license.

The facts are that face recognition is neither new nor rare, and more than one out of two American adults have already been loaded into a local, state, or federal database.

That’s according to this report by the Center on Privacy and Technology at the Georgetown University Law Center. Read it to learn more about this technology; how it’s being used; and what the future holds. For three shorter stories about it, see here, here, and here.

What did the researchers do? They sent public-records requests to more than one hundred law-enforcement agencies across the country. They interviewed representatives from dozens of those agencies as well as from the technology companies they contract with. They made two site visits to agencies that use advanced face-recognition systems. And they surveyed the state of the law (or lack thereof) in all fifty states.

What are their takeaways? Here are four.

  1. The technology has value, and its use is inevitable. The report doesn’t aim to stop it.
  2. Its use is spreading rapidly and secretly without limits, standards, or public oversight.
  3. The total network of federal, state, and local databases includes over 117 million American adults. That’s more than half the country.
  4. We’re moving toward a world of continuous, real-time face recognition through public surveillance cameras.

What are their recommendations? Here are three.

  1. Congress and state legislatures should pass commonsense laws to regulate face recognition, and police should follow them before they run a search.
    • For example, to search a database of driver’s license or state identification photos, police should have a warrant backed by probable cause.
    • To search a database of mug shots, they should have a reasonable suspicion of criminal conduct. Periodically, they should scrub the database of people who were arrested but not charged and convicted. Michigan, for one, already requires that.
    • They should not use real-time, continuous surveillance except for public emergencies.
    • They should not track people based on politics, religion, or other protected status.
  2. The federal government should develop tests and best practices to improve the technology’s accuracy. For example, in the latest available test of the FBI’s database, the system included the right person on a list of fifty potential matches 86% of the time. That means that one out of seven searches returned a list of fifty innocent look-alikes, and the other six included 49 of them.
  3. All governments should report their use of the technology, audit such use regularly, and respect civil rights and liberties.

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