Amici urged the U.S. Court of Appeals for the Fifth Circuit to recognize that the government must provide thorough justification and process when proposing to incarcerate a person pretrial. Specifically, the government must not undermine the protections guaranteed in the criminal legal process by imposing bail amounts that cannot realistically be paid. Amici reminded the Court that constitutional jurisprudence establishes that pretrial detention requires a determination of necessity. For a court to impose an unaffordable bail amount, it must find that it serves a compelling interest of the state and that no less-restrictive condition of release can be met. It must also do this in accordance with a robust process that guards against deprivation of liberties. Detailing a history of protection of pretrial liberty in English and American law, amici explained that bail policies historically did not make liberty contingent on a person’s ability to pay. Amici added that requiring an unattainable bail is tantamount to the outright denial of bail altogether.
Kansas v. Cross Amicus Brief (2021)
Amici urged the Supreme Court of Kansas to find capital punishment in Kansas unconstitutional under section 1 of the Kansas Bill of Rights, which guarantees “[a]ll men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” Referencing state supreme court decisions from Massachusetts, Connecticut, and Washington, which all found the death penalty unconstitutional based on interpretations of state law, amici described how state courts are empowered to rest decisions solely on protections found within state constitutions, independent of the U.S. Constitution. Amici explained state constitutions are sources of independent constitutional law and may offer greater protections than the U.S. Constitution. Amici also provided analysis on the unique history of Kansas and the ways in which individual rights are centered in its state constitution. Based on this analysis, Amici urged the Supreme Court of Kansas to find the administration of the death penalty unconstitutional and vacate the death sentence of Frazier Glenn Cross.
Amici urged the Supreme Court of the United States to grant certiorari in order to preserve the integrity of the Sixth Amendment right to counsel in capital cases. Amici explained that the Fifth Circuit departed from the Supreme Court’s precedent and undermined the right to effective assistance of counsel by establishing a heightened standard for assessing prejudice on claims of ineffective assistance at the penalty phase of a capital trial. The Fifth Circuit’s nearly impossible standard for proving prejudice deprives capital petitioners like Mr. Canales of the individualized sentencing determinations to which they are entitled. It also prevents reviewing courts from correcting egregious constitutional errors, by requiring petitioners prove the facts of their case match those of a previous case where the U.S. Supreme Court granted relief. To ensure capital petitioners are not deprived of individualized sentencing and maintain the right to effective assistance of counsel at the penalty phase of trial, amici urged the Supreme Court to grant review and to reject the Fifth Circuit’s heightened prejudice standard.
Amici advised the U.S. Court of Appeals for the Eleventh Circuit that the District Court was within its discretion to enter a permanent injunction ordering Florida to develop a constitutional system for ensuring people with prior felony convictions can vote. This case arose out of a challenge to legislation which restricted Amendment 4—a 2018 ballot initiative which restored voting rights—by requiring full payment of legal financial obligations as a prerequisite for reenfranchisement. After beneficiaries of Amendment 4 turned to the courts to pursue proper administration of the amendment, the District Court entered its permanent injunction. The State objected, claiming the District Court exceeded its authority and urging Amendment 4 to be struck down in its entirety. Amici argued that it was within the discretion of the District Court to fashion a permanent injunction to remedy the constitutional violations of the government. Amici also argued that even if the Court did exceed its authority, the appropriate solution would not be to strike down Amendment 4, but rather to sever any unconstitutional application of the amendment, allowing the rest of the statute to stand, thereby executing the will of Florida voters to restore voting rights for certain people with prior felony convictions.
Citro v. Lee Amicus Brief (2020)
Amici offered analysis to the Appellate Division of the New York Supreme Court on the appropriateness of employing the writ of habeas corpus in the case of a transgender woman seeking relief from prison during the COVID-19 pandemic. Cathy Citro, a transgender woman incarcerated at Eastern Correctional Facility, a men’s prison, suffers from serious medical conditions that put her at risk for contracting the virus. She was just a few months shy of parole eligibility, which would have enabled her to be freed under New York’s plan to release certain older incarcerated people during the pandemic. As further confinement would have put Citro at high risk of death, she challenged the constitutionality of her confinement. The trial court judge acknowledged Citro’s health concerns, but said habeas corpus was unavailable to her. Amici provided analysis of the history and purposes of the writ of habeas corpus, specifically focusing on its role as an essential remedy for protecting the rights of people incarcerated during the pandemic.