Revisiting the Historic Citizens United v. FEC Decision for the 2016 Elections

By Jared Finkel

One year from election day, the 2016 presidential race is fully underway. This campaign is already featuring historic levels of spending as candidates are doing everything they can to get their message across to voters in early primary and swing states. Since these campaigns, with the exception of one, are not self-funded, we must ask the question: who is footing the bill?

The Case

In 2009, the Supreme Court heard arguments for the landmark Citizens United v. FEC case that fundamentally changed how we elect our government officials. The issue at hand was whether it is constitutional for large corporations, labor unions, other associations, and to some degree, groups of high-income individuals, to be able to expend mass amounts of money to aid candidates running for office.

After hearing the arguments, the Supreme Court ruled in favor of admitting the right of campaign financing to said groups by a vote of 5 to 4. The majority opinion, written by Justice Anthony Kennedy, states that through the eyes of the Constitution, individuals and groups of individuals are indistinguishable. Through this non-distinction, the federal government has no jurisdiction over restricting the First Amendment rights of corporations. Therefore, independent expenditures by corporations on elections should have no constitutional restrictions. On the other hand, the ruling had no implications on the federal ban on corporations donating directly to political parties and/or candidates. This remains prohibited. Once the Supreme Court delivered its verdict, all local and federal laws prohibiting the right of corporations to political spending were repealed. 24 states were legally obligated to do so.

Impact

One direct implication of Citizens United is the creation and vast expansion of Super PACs. Super PACs are political action committees that accept individual expenditures to help support a political cause, candidate, or party of a group of individuals. Via further court cases, restrictions to the amount of money an individual can donate to a Super PAC were sought, but to no avail: The Supreme Court upheld the First Amendment rights of individuals and corporations to spend on political campaigns without restriction.

Under the federal ban, Super PACs are restricted from direct donations to political candidates or parties. However, candidates have the ability to create affiliated Super PACs, effectively undermining the federal ban on direct corporate spending to political candidates. By using the First Amendment rights upheld by Citizens United, candidates have the ability to procure endless amounts of money to finance their campaigns.

Super PACs have now become the status quo in elections. Out of the 18 nominees running for POTUS, 16 have affiliated Super PACs, and all of them have unaffiliated Super PACs. The total number of Super PACs (directly affiliated and unaffiliated) is 45. Out of these donations, the percentage of the population that donates $200 or more is 0.23%. Despite only 0.23% of the population donating more than $200, this money constitutes 66.6% of the total campaign contributions of “individual contributions” to federal candidates (numbers and percentages are from 2014 only).

Also, the distinction between union donors and non-union donors is of importance. Unions are a collective that advocate for the rights of the many specific sectors of workers across the country. Generally, non-union donors are a collective of few that advocate for the few, thus decreasing the role of the average American in elections with the increase of donations from said collectives. Of the ten organizations that spent the most towards campaign financing in 2014, five are non-unions (1. Fahr LLC, total contributions: $75,279,259, 2. ActBlue, total contributions: $68,026,527, 4. Bloomberg Lp, total contributions: $28,708,538, 5. NextGen Climate Action, total contributions: $24,574,615, 10. Elliot Management, total contributions: $14,199,672). Of those five that are non-unions, three serve no political purpose and are essentially small groups of individuals.

Conclusion

In the majority opinion, Justice Kennedy wrote that the previous legislation on corporate political spending “muffle[d] the voices that best represent the most significant segments of the economy.” While this may be true, these voices do not represent the significant segments of the constituency that are most affected by policy: people in the lower and middle income brackets. For instance, every year Social Security is revisited and increased for the annual cost of living. This year, for only the third time since 1975, there will be no increase, whereas the average salary of CEOs of the top 350 American companies increased by 3.9%. To make matters worse, the aforementioned pay increase was partly subsidized by the taxpayers. This policy most affects the 9 million veterans on Social Security, two-thirds of seniors who rely on Social Security for most of their income, and the 15 million people where Social Security brings them above the poverty line. The people affected by this policy are the many, not the few who make up significant portions of our economy. Citizens United muffled their voices.

Too often, elections are won or lost by the relative size of one campaign’s resources.  The more a candidate can advertise and campaign, the more he or she can reach and win over target populaces in paramount districts across the nation. Political campaigning is an expanding sector of elections where candidates are not financially able to support themselves. Unfortunately, modern-day candidates flock to corporations to obtain an incredibly large proportion of their political donations.

As many observers have noted, this leads to a conflict of interest where candidates feel as if they need to pursue these corporations’ political initiatives to maintain financial support, or pursue these corporations’ political initiatives to obtain financial support. This is a fundamental flaw in our election system where corporations are encouraged to have a larger role in policy as the role of everyday working Americans is diminished. This issue might be exacerbated in future elections as the United States sees historic, growing levels of income inequality.

The very basis of democracy in the United States is the concept of one person, one vote.  If we have a system where two people are permitted to have the political impact of donating $900 million, then something is wrong. The political role of the demos should be a right, not a privilege.

New York: The Greatest City on Earth (to be Stuck in a Law Library)

Photography by Maria Dudenhoeffer

By Maria Dudenhoeffer

Two weekends ago, I spent my Sunday and Monday in New York City and took a tour of Columbia Law School. Even though it was my first trip to New York, I fell in love with the city and the prospect of attending law school there.

My trip started with a 2:30 a.m. Greyhound Bus out of Union Station Sunday morning. I arrived at Penn Station a little before 7:00 a.m. and proceeded to do the most touristy thing I could do, go to Times Square. Surprisingly enough, 6:55 a.m. is not peak tourist time so I had the opportunity to walk around while it was relatively empty. Since I would only be in the city for two days, I decided to take a bus tour, which, while cheesy, is an excellent way to get an overview of a city in a short amount of time. The biggest difference from DC in my opinion, is the sheer size of the buildings. After taking a quick break from the bus tour and visiting Roosevelt Island by the way of an aerial tram, I headed up to Columbia University to see where my tour would be taking place the next day.  

Ranked 4th in the country by US News and World Report, Columbia Law School is located in the neighborhood of Morningside Heights in Manhattan. Columbia University and Columbia Law School coexist on the same campus, which means the law students receive access to all the facilities of Columbia University. My Visitation Day started with a student-led tour of the Law School, followed by an Admissions Information Session, in which a senior admissions representative gave us an overview of the application process and answered any questions we had. Columbia Law is one of the most competitive schools in the country, with a median LSAT Score of 171 and median GPA of 3.70.

However, if Columbia is a reach (let’s face it, that’s most of us), there is still a plethora of other law schools in the NYC area. Fordham Law is a top tier school in the heart of Manhattan with the Fordham Journal of Corporate & Financial Law being the 1st-most cited student-edited banking and finance journal. NYU Law is nestled in Greenwich Village and is ranked 6th in the nation for by US News and World Report and consistently ranked 1st in International Law and Tax Law. Cardozo School of Law isn't far from NYU and, despite not having the reputation of Fordham, Columbia or NYU, is ranked 6th for its intellectual property program by US News and World Report. Brooklyn Law School, located in the hipsterest of boroughs, has an impressive bar-passage rate of 94% and produced New York City's first and only African-American mayor, David Dinkins.

Regardless of your LSAT and GPA, being at a school in NYC, much like being at a school in DC, allows for countless opportunities for internships with an assortment of institutions, ranging anywhere from investment banks to the United Nations. New York is, in many ways, the financial, commercial, political and legal capital of the world, making it an ideal place to study law. Receiving an undergraduate education in DC and studying law in New York would be an incredible experience few aspiring lawyers can hope to have.

*Special thanks to Grant Smith for the article title.

Smart on Crime: Raising the Juvenile Justice Age

By Josh Kirmsse

Last week, Connecticut Governor Dannel Malloy proposed raising the juvenile justice age from 17 to 20, and the evidence suggests that this smart-on-crime proposal not only serves a number of practical government interests, but is a realization of fairness and justice.

The first (of many) reasons raising the age from 17 to 20 makes sense is almost purely scientific. Neurologists and biologists have recently started to discover that human brains do not mature until 25. In fact, the idea that a human brain, save incredibly rare circumstances, could be anywhere near full development at age 18 has no scientific basis. The historical purpose of a juvenile justice age has been to prioritize rehabilitation over punishment in dealing with adolescents. Why? Because adolescent brains are simply not as developed as adult brains. Adolescents are more likely to be emotionally unpredictable, succumb to peer pressure, and are less likely to make decisions based on long-term consequences.

Interestingly, many other practices of age restriction recognize this disparity: 18-year-olds can’t buy alcohol, gamble, rent a car, or serve in either chamber of Congress. Many states restrict an 18-year-old’s ability to buy cigarettes as well. Is there really much sense in saying somebody can’t buy alcohol, gamble, or serve in national government, on the basis of a lack of mental maturity, yet they can still be tried as an adult in criminal court?  Having a juvenile justice age of 17 essentially negates the original purpose of having a juvenile justice system because the state will still try adolescents with less developed mental faculties and reasoning skills.

The practice also doesn’t do the legal system much good. 78 percent of 18- to 24-year-olds released from prison are rearrested and about half return to prison within three years, the highest recidivism rate of any age cohort. Germany, the only government in the world with a 20-year-old juvenile justice age, recognized these scientific and legal discrepancies. Since raising the age, they have seen no rise in youth crime, and study after study shows that more punitive sentences for minors do not serve as deterrents. Rather, punitive sentencing for adolescents works counterproductively, creating career criminals and increasing recidivism rates. In Connecticut, since raising the juvenile justice age from 15 to 17, the state has seen a 20% drop in its prison population, resulting in the lowest prison population Connecticut has seen in 17 years. Last year, 11,000 people aged 18, 19 or 20 were arrested in Connecticut, and in nearly three-quarters of those cases a misdemeanor was the most serious offense. A low juvenile justice age unnecessarily diverts much needed resources from trying more heinous crimes to prosecute mostly non-violent crime committed by those 18-20.

The question as to who we consider a juvenile is a difficult one, but, a juvenile justice age of 20 is a much more logical bar to set. We know this by studying science, examining inefficiencies, and pointing out inconsistencies in our judicial philosophies when we see them. It is certainly easy to ignore these conclusions and posit, as 18th-century English lawyer William Blackstone once did, that “malice supplies the age.” But, as in all matters of public policy, we ought to consider the facts. To succumb to our worst instincts, to ignore science and expert research and logical conclusions, and in doing that, to eliminate the opportunity of a second chance so many young offenders seek, is not justice. Justice is to recognize scientific ability and sound reasoning as the better angels of our nature, and to shape our system based on knowledge, as Governor Dannel Malloy is attempting to do by raising the juvenile justice age to 20.

Review of Recent SCOTUS Ruling on the False Claims Act

By Brett Mittler

What would you do if your employer acted unethically? Would you let it go or would you say something? Benjamin Carter, a whistleblower and a contracted federal employee, decided that  the actions of his company weren’t just. His strong values led him to tell that his company was committing fraud and taking advantage of their position.

In May, the Supreme Court issued a unanimous ruling in Kellogg Brown & Root v. United States. The question presented to the Court was: Whether the Wartime Suspension of Limitations Act – a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose – applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling.

Whether, contrary to the conclusion of numerous courts, the False Claims Act’s (FCA) so called “first-to-file” bar, 31 U.S.C. § 3730(b)(5) – which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims – functions as a “one-case-at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing.

CASE BACKGROUND

Kellogg Brown & Root Services, Inc. (“KBR”) provided logistical services to the U.S. military in Iraq under a multi-year government contract. Benjamin Carter, the respondent worked for contactor as a water purification operator. From January 2005 to April 2005 he alleged witnessed that KBR had billed for services that were not performed or not performed properly. He subsequently filed a qui tam suit complaining against the petitioners, in a case know as Carter I.

In 2010, right before the trial was set to start, the Government informed both parties that about an earlier filed qui tam lawsuit that was filed, United States ex. Rel. Thorpe v. Halliburton Co., that had contained similar claims. Under the FCA, this appeared to be in violation of the “first-to-file” bar; therefore, it was dismissed by the District Court; the respondent then repealed the decision. Carter was sure to quickly file a new complaint, in what is known as Carter II, but this was also dismissed because Carter I was still pending on appeal. Knowing he was at an impasse, the respondent voluntarily withdrew his appeal and in June 2011, more than six years after the alleged incident in Iraq, he filed a third appeal known as Carter III, which is the case now in question.

After this filing, the petitioners sought dismissal of this case under the first-to-file rule because there were two cases in two different states that had been filed in the time Carter waited to file again. The court decided that the case was dismissed with prejudice because of one of the other pending suits from a different state. Additionally, they decided that they WSLA applies only to criminal cases and that the respondent civil claims were untimely.

Furthermore, the Fourth Circuit reversed, rejecting the District’s Court’s claim interpretation of both the first-to-file and WSLA issues. They concluded that the WSLA does, in fact, apply to civil cases as well, so the case was filed on time. The Court of Appeals also held that the first-to-file rule ceases to apply once a case was dismissed. Since The Fourth Circuit decided at a time when both other cases out of state were dismissed, the court held that the respondent had the right to refile his case and remanded Carter III with instructions to dismiss without prejudice.

Right as this was done the respondent filed Carter IV, only to find that the case was again dismissed because the petition for a writ of certiorari in Carter III was still pending. The Supreme court granted the petition for the case to be heard, reversing and affirming in part.

DECISION

In Kellogg Brown & Root Services, Inc. v. United States Ex. Rel Carter , No. 12-1497  (U.S. May 26, 2015), the Supreme Court held that respondent Benjamin Carter had a right to refile his case because he did not violate the False Claims Act (FCA) first-to-file bar. Carter, who worked for Kellogg Brown & Root (KBR) as a government contractor providing logistical services to the U.S. military in Iraq, filed a whistleblower lawsuit against his former company. He alleged that KBR was engaging in fraudulent billing practices under the False Claims Act which prohibits making “a false or fraudulent claim for payment or approval,” 31 U.S.C. §3729(a)(1), to the U.S.. Government. Just before the initial trial was to take place in 2010 the government informed the parties that a complaint of similar nature had previously been filed. The district court decided (without prejudice) to dismiss Carter’s suit under the FCA’s “first-to-file” rule, which bars a new suit if there is one pending, §3730(b)(5). Subsequently, when Carter refiled his suit in 2011, KBR motioned to dismiss by arguing that the FCA’s six-year statute of limitations had expired and that there was still related matter pending. The U.S. Court of Appeals for the Fourth Circuit reversed the district court. The appellate held that there was no pending matter to prevent Carter from proceeding with his claim and that the Wartime Suspension of Limitations Act (WSLA) applied not only to criminal cases, but also civil cases such as Carter’s. Therefore, the respondent had a right to refile his case.

In a unanimous decision written by Justice Alito, the Supreme Court reversed in part the appellate ruling that the act applied to both criminal and civil cases, stating it only applied to criminal cases after their extensive review of the WSLA’s text. The court reasoned that the FCA’s first-to-file bar keeps new claims out of the court only if new claims are still alive, not in perpetuity. They read §3730(b)(5) to conclude that the term pending, in this case, was in accordance with an ordinary dictionary definition. The court did not want the term pending to mean first-filed, which prevented Carter from bringing the suit again because of another “pending” case. Finally, the court remanded the case to back to the U.S. Court of Appeals for the Fourth Circuit.

Ban the Box: A Necessary, Bipartisan Criminal Justice Reform

By Martin M. McSherry

Last week, President Barack Obama announced that he would take executive action to prohibit federal employers from asking about a job applicant’s criminal history in the initial stages of the hiring process. The President on the Re-entry Process of Formerly Incarcerated Americans, The White House (2015). This measure, often referred to as “banning the box” in reference to the checkbox on employment applications, is meant to reduce the obstacles preventing former prisoners from reintegrating into society. While President Obama’s actions only ban the box for federal employees, he made the announcement in Newark, New Jersey, where Governor and Republican presidential candidate Chris Christie signed a law banning the box for private and public employers last year. Christina O'Connell, Ban the Box, 83 Fordham Law Review, 2810 (2015).

Recognizing the bipartisan support for banning the box, Congress should act now to limit consideration of criminal records in all hiring decisions because the practice disproportionately impacts people of color, increases the rate of recidivism and harms society more than it serves any business necessity.

65 million Americans have criminal records. Id. These people, a full fifth of the population, face significant challenges beyond the official punishments that follow them for the rest of their lives. Perhaps the greatest challenge is in finding employment. Most private companies and government employers use criminal background checks in their hiring processes and some laws completely disqualify ex-offenders from certain jobs. Id. The racial disparity in arrest, conviction and incarceration rates is borne out in the raw data from government policy reports and compounded by scholarship on employment discrimination. The negative impact on recidivism is well documented, but some attorneys representing major employers cite various business necessities of screening convicted criminals from consideration in hiring. However, for the reasons described above and many others, there is an overarching societal necessity in giving those who exit the criminal justice system a second chance.

While some states have adopted ban the box laws, no federal statute currently restricts the practice for all employers. Henry, J., Ban the Box to Promote Ex-Offender Employment, 755 Criminology & Pub. Pol'y (2007). The Equal Employment Opportunity Commission (EEOC), established by the 1964 Civil Rights Act, is the federal agency tasked with combating workplace discrimination. EEOC Enforcement Guidance 915.002 (2012). The EEOC plainly states in its 2012 Enforcement Guidance, “An arrest record is not grounds for exclusion” from the hiring process. Id. However, the EEOC allows consideration of convictions because that record “will usually serve as sufficient evidence that a person engaged in a particular conduct, given the procedural safeguards associated with trials and guilty pleas. Id. The reason for the policy against using arrest records in the hiring process is because of racial differences in arrest rates, which would disproportionately harm African-American and Hispanic job applicants. Id.

However, the racial disparity in arrest rates to not disappear in the successive stages of the criminal justice system. Conviction and incarceration rates are higher for African-Americans and Hispanics than for whites. Report to the UN Human Rights Committee, The Sent'g Project (2013). African-Americans are 12 percent of the adult population, but comprise 38 percent of convicted felons. Id. For violent crimes like murder, a majority of those convicted are black, an especially stark overrepresentation. Id. African-American males are 6 times more likely to be incarcerated than white males and 2.5 times more likely than Hispanic males. Id. This data indicates that the consideration of conviction rates, like arrest rates, disproportionately harms the employment prospects of people of color. Because of this, the EEOC should be empowered by new legislation to restrict employers from considering not just arrest rates, but criminal records as a whole.

While this data clearly shows a racial disparity, it does not tell the full story of just how harmful the practice is to people of color. Professor Devah Pager of Harvard’s Kennedy School of Government conducted a field study that further demonstrates racial discrimination in employer considerations of criminality. Henry, J., Ban the Box to Promote Ex-Offender Employment, 755 Criminology & Pub. Pol'y (2007).  Pager sent job applications to employers from students with identical attributes and experience, except for their criminal records. Id. Employers expressed interest in 37 percent of white applicants with no criminal records and 17 percent of whites with criminal records. Id. Among black job-seekers, employers showed interest in 14 percent of applicants without a criminal record and only 5 percent of applicants with a criminal record. Id. As previously established, there is a racial disparity in the rates of arrest, conviction and incarceration among blacks and whites. This scholarship shows that even if that disparity is removed entirely, employers discriminate against black job-seekers with a criminal record and favor white applicants with a criminal record. A separate Justice Department policy study found similar results, concluding, “The negative effect of a criminal record was substantially larger for black applicants.” Neighborhoods, Recidivism and Employment Among Returning Prisoners. (The Nat'l Inst. of Justice 2015). The practice does not just have an incidental disparate impact on people of color, but enables active racial discrimination and should be restricted by law.

In the absence of legislative action to ban the box, the practice could be challenged under disparate impact liability. In Connecticut v. Teal, the Supreme Court ruled that the relevant issue in determining disparate impact is “whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities,” even if the resulting workforce of a company is racially balanced. Connecticut v. Teal 433 U.S. 330 (1977). Given the abundance of data to suggest the practice has or predictably will have a discriminatory effect, public and private employers could be susceptible to disparate impact claims if they do not ban the box.

There are, of course, major issues the ban the box movement seeks to redress that affect ex-offenders of every race, such as chronic unemployment and recidivism. 60 to 75 percent of Americans cannot find a job in their first year after being released from prison, in large part due to the widespread use of criminal background checks. 83 Fordham L. Rev. 2810. Two-thirds of companies screen applicants for criminal records, mostly during the initial phase of hiring. Id. This means that most ex-offenders never get a call back to discuss mitigating circumstances such as their personal rehabilitation, good behavior and other positive steps toward reintegration to society. In 2010, Boston put in place a law that only allows background checks to be administered during the final phase of hiring, after finalists have been chosen. Id. If the check reveals a disqualifying conviction, the applicant can then meet with human resources to discuss the issue in-depth. Id.

Congress should act to ban the box beyond federal employment applications by passing a statute like Boston’s because it would gives an ex-offender the fair chance to be judged on his or her merits when seeking work. Without such a policy, ex-offenders are discouraged from playing by the rules and are much more likely to reoffend. Id. The inability to find legal work places a financial strain on an individual and encourages generating income by other, potentially criminal means. This is just one of many reasons that employment is the single greatest factor reducing the risk of all recidivism outcomes. Id. Simply put, banning the box would reduce the number of past offenders who return the criminal justice system, eliminating huge societal costs in dollars and lost opportunities.

Kevin White, a partner at the law firm Hunton & Williams LLP, which represents retail clients in EEOC investigations, takes a different approach. Instead of arguing for expanded federal oversight of discriminatory hiring practices, he suggests that the EEOC is currently going too far in its regulation of employers. Terrence Connor and Kevin White, A Critique of the EEOC Guidance, 43 Seton Hall L. Rev. 997 (2013). Employers, he argue, have a legitimate business necessity in barring ex-cons from employment because they could present risks to the hiring organization. Id. White cites criminological studies to demonstrate that “nothing predicts future criminal activity more accurately than a history of past criminal activity.” Id. While White uses this evidence to advocate against additional hiring restrictions, he ignores the fact that the recidivism predicted by criminologists is a direct result of insufficient hiring restrictions. As previously noted, barring ex-offenders from employment only increases the likelihood of reoffense.

Another business necessity the practice serves, White argues, is that it avoids the “cost or burdens of a proposed alternative,” such as Boston’s policy that mandates additional review of applicants with criminal records. Id. Screening out applicants with criminal records may cut a few costs for businesses, but it shifts those burdens and costs to society by increasing recidivism and straining the families of the unemployed ex-offenders. In that way, the practice not only shifts the burden and costs from businesses to society, but also magnifies them several times over.

The racial disparity in arrests, convictions and incarceration alone should be enough to limit considering the criminal history of job applicants. However, the compounding effect of employers disfavoring black applicants with criminal records creates an even greater impetus for change. The cost of reviewing some additional job applications is dwarfed by the costs mass incarceration puts on society in terms of recidivism, lost opportunities and the disenfranchisement of millions of Americans who just want to work. It is time for Congress to pass a federal ban the box law to expand the policies of Governor Christie and President Obama and begin the process of reforming our broken criminal justice system.

Supreme Court to Rule on Race-Based Jury Selection

By Martin M. McSherry

Yesterday, the Supreme Court heard oral arguments for a case that will determine the integrity of anti-discrimination protections in the jury selection process. The case, Foster v. Chatman, concerns whether or not Georgia courts erred in finding that there was no race-based discrimination in the jury selection of a death penalty case from nearly three decades ago. Petition for a Writ of Certiorari, Foster v. Chatman, No. 14-8349 (U.S. Jan 30, 2015).  In 1987, an all-white jury in Rome, Georgia convicted a black teenager, Timothy Foster, of murder and sentenced him to death. Id. Open government laws revealed evidence of a pattern of blatant racism throughout the prosecution, particularly in the jury selection process that removed all five black jurors because of their race. As Timothy Foster awaits execution, he is only one of the 56 percent of those on death row who are people of color. “Death Row USA,” Criminal Justice Project, NAACP (2015). It is imperative the Supreme Court forcefully protects the integrity of the American criminal justice system by overturning the Georgia Supreme Court’s ruling and invalidating an unlawful, Jim Crow-style conviction.

One year before Foster’s conviction, the Supreme Court ruled in Batson v. Kentucky, “Prosecutors may not use race as a factor in making peremptory challenges.” Batson v. Kentucky. 06 S. Ct. 1712. In Foster’s case, prosecutors struck each of the five black members of the jury pool before the trial, providing reasoning for just one removal for cause. No. 14-8349, at 191. The rest were removed using peremptory challenges without a stated reason. Id.  Foster’s attorneys subpoenaed the prosecution’s jury selection notes, which revealed that on four different copies of the jury list, each black prospective juror’s name was highlighted in green. Id. A key at the top of the notes said that green highlighting “represents blacks,” but, in case the key was overlooked, they also circled the word “black” where each rejected juror wrote their race (see photo below). Id. The notes also referred to the black jurors as “B#1,” “B#2” and so on. Id. The prosecutor ranked each black juror against each other, in case “it comes down to having to pick one of the black jurors.” Id.

The prosecution's notes reveal race-based peremptory challenges.

Foster appealed the conviction to the Georgia Supreme Court, where the prosecution retroactively provided non-racial reasons for their peremptory challenges. Id. Many of these reasons were only applied to black jurors and not white jurors. For example, the prosecution struck one black juror because she worked as a teacher’s aide with “low income, underprivileged children,” which may result in her looking favorably on the defendant. Id., at 191. However, one white prospective juror also worked as a teacher’s aide with children of low socioeconomic status and the prosecution did not strike her from the jury pool. Id. On appeal, the prosecution justified the rejection of another black juror because he had a son who was the same age as Foster, but the prosecution never once asked the juror, labeled “B#3,” about the age of his son during voir dire. Id., at 192. This suggests the reason was  applied after the fact to justify a race-based exclusion. Even so, the prosecution accepted thirteen white prospective jurors with children between the age of 17 and 23. The defendant was 19. The rejected black juror’s son was 18. Id.

The prosecution also claimed that one rejected juror was stricken from the pool because her age was too close to the defendant’s, potentially resulting in bias. Id. The juror in question was 34 and the defendant was 19. Id. The prosecution accepted eight white jurors who were 34 and younger, including a man who was just two years Foster’s senior. Id. The reasoning the prosecution provided for striking the other jurors was similarly weak. Once prosecutor Stephen Lanier hand-picked the all-white jury he wanted, he urged them to sentence Foster to death to “deter other people out there in the projects.” Id., at 2. Over 90 percent of the residents of the housing projects in Rome, Georgia were black. Id., at 3. 

According to Batson, the case establishing relevant precedent by which the Court will rule, the plaintiff in a jury selection discrimination case “must only make a prima facie showing on the evidence from their case to mount a challenge to race-based use of peremptories.” Batson v. Kentucky, 06 S. Ct. 1712. Foster successfully made a prima facie showing of discrimination using the prosecution’s notes obtained from the Georgia Open Records Act in 2006, decades after the conviction, while he was on death row. No. 14-8349, at 14. However, when the burden shifted to the prosecution to provide non-racial reasons for striking all of the black jurors, the Georgia Supreme Court ruled that the strikes were “sufficiently neutral and legitimate,” even though the prosecution failed to apply those reasons to white jurors. Id., at 13. Despite overwhelming evidence of racial discrimination, the Georgia Supreme Court ruled that the prosecution had no “discriminatory intent” in striking each of the black jurors. Id. The Court also held that Foster was not entitled to the prosecution’s notes, which produced the evidence of blatant racism in the first place. Id. 

It's no surprise, then, that Associate Justice Sonia Sotomayor interrupted Georgia Deputy Attorney General Beth Burton's oral arguments to say, "I'm sorry, I'm so confused I can't even..."

It is clear the prosecution removed jurors in this case because of their race. Clearer, still, is that the Georgia Supreme Court not only erred in its ruling, but actively sought to subvert the safeguards in place to prevent racial discrimination in the jury selection process by holding that Foster did not have a right to the evidence he obtained through the Georgia Open Records Act. The U.S. Supreme Court must affirm the integrity of the racial protections outlined in Batson to prevent the obviously discriminatory motivations behind the prosecution’s peremptory challenges from ever happening again. If the justices accept the Georgia Supreme Court’s miscarriage of justice, it would nullify the well-established laws that ensure a fair trial and balance the need to strike jurors who may be biased with the need to limit the rejection of jurors for nefarious reasons. After the Roberts Court dismantled the Voting Rights Act in Shelby County v. Holder because a history of racism has “no logical relationship to the present day,” the willingness of the Court to uphold anti-discrimination laws from a few decades ago is up in the air. Shelby County v. Holder, 570 US _ (2013), at 4. Foster v. Chatman is a clear chance for the Supreme Court to reaffirm its commitment to protecting the American people against blatant, unconstitutional discrimination.

Foster may have committed the offense for which he was convicted. In fact, the evidence presented in the trial suggests that he probably did. That is entirely irrelevant to this appeal because he never received a fair trial. The prosecution ruthlessly and unlawfully crafted an all-white jury that would be receptive to its blaring dog whistles that still ring in our ears today. Foster will have tremendous legal consequences at a time when the criminal justice system, case after case, appears to be actively working against African Americans. The case, which has heretofore grabbed few headlines, should be closely followed by anyone interested in race relations, judicial procedure, open government, criminal justice reform and equal justice under the law.