Published: Amy Johnson

We are proud to announce that 3L and Lead Articles Editor Amy Johnson will be published this spring! Her Note will be featured Syracuse Law Review.


Publication: Syracuse Law Review, Volume 69, Book 2

Note: The Complexity of Copyright: The Highest Court’s Attempt to “Fix” a Nonexistent Problem and a Simple Solution


Amy is a third-year student at Syracuse University College of Law. She received her undergraduate degree from Towson University where she majored in Public Relations and Advertising and was a member of the dance team.

Amy serves as Lead Articles Editor for the Syracuse Law Review and a research assistant for Professor Laura Lape. She also works in the College of Law as an Academic Success Fellow.

Amy was a summer associate at Arnold & Porter in Washington, D.C. during the summer of 2018. She will return to Arnold & Porter following graduation this year.

 

State Civil Asset Forfeiture Curtailed by the Supreme Court

Written by Katherine Brisson

 

When Tyson Timbs pleaded guilty in Indiana state court for selling $225 of heroin to undercover officers, he never expected his case to result in a major Supreme Court decision incorporating a Bill of Rights provision to the States. With the Supreme Court’s unanimous decision in Timbs v. Indiana, however, that is exactly what happened.

Background

In 2015, Mr. Timbs pleaded guilty to a controlled substance offense and conspiracy to commit theft. The Indiana trial court sentenced him to one year of home detention, five years probation, and required him to pay fees and court costs totaling $1,203, which was much less than the $10,000 maximum fine assessable against him for the drug conviction.

When the police arrested Mr. Timbs, they seized his $42,000 Land Rover that he purchased with money from his father’s life insurance policy, claiming that he used it to transport heroin. The State of Indiana brought a civil forfeiture suit for Mr. Timbs’ Land Rover, which the trial court denied. The court explained that the Land Rover was worth more than four times the maximum monetary fine for his drug conviction and that forfeiture would be grossly disproportionate to his offense, making it unconstitutional under the Excessive Fines Clause of the Eighth Amendment. The intermediate appellate court upheld the state court’s denial of forfeiture, but the Indiana Supreme Court reversed, ruling that the Excessive Fines Clause does not apply to the states.

Timbs v. Indiana: Excessive Fines Clause Incorporated to the States

Writing for the Court, Justice Ruth Bader Ginsburg explained, “the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.” Justice Ginsburg detailed the tradition of hostility towards excessive fines through a discussion of the Magna Carta, the English Bill of Rights, colonial-American excessive fine and bail provisions, and State excessive fine provisions. The Court then explained that “the protection of excessive fines has been a constant shield throughout Anglo-American history” against the undermining of other constitutional liberties. At the same time, the Court highlighted the ways in which excessive fines were used after the Civil War to target African-Americans and “subjugate newly freed slaves and maintain the prewar racial hierarchy.”

The Court used the Due Process Clause of the Fourteenth Amendment as the vehicle to incorporate the Excessive Fines Clause form the Eighth Amendment to the states. Interestingly, Justice Clarence Thomas, who wrote separately concurring in the judgment, argued that the Excessive Fines Clause should be incorporated to the States using the Privileges and Immunities Clause of the Fourteenth Amendment instead. Justice Neil Gorsuch, who also wrote separately but still joined the Court’s opinion, mirrored Justice Thomas’ sentiment but reasoned that “regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires States to respect the freedom from excessive fines enshrined in the Eighth Amendment.”

Impact of Incorporation: The Future of Civil Forfeiture

For better or worse, civil forfeiture is an important source of revenue for many law enforcement agencies across the country that rely on a steady flow of forfeiture proceeds to purchase equipment. Civil forfeiture does not require a criminal conviction; rather it only requires a showing that the property in question was used in connection with a crime. This practice has received near-universal criticism as a practice that can be egregiously abused for the monetary profit of law enforcement agencies. Wesley Hottot, Mr. Timbs’ attorney, noted that “[t]oday’s ruling should go a long way to curtailing what is often called ‘policing for profit’ – where police and prosecutors employ forfeiture to take someone’s property then sell it, and keep the profits to fund their departments.”

In light of Timbs, police and prosecutors may be required to think differently about when—and against which property—they choose to initiate. One consideration that has not always been at the forefront of the decision is the relationship between the value of the property to be forfeited and the crime it is allegedly connected to. This relationship could be the deciding factor between constitutional and unconstitutional forfeitures from here on.

All 50 states have constitutional provisions prohibiting excessive fines in some form. The Supreme Court’s decision in Timbs will likely influence how state courts interpret these provisions and how they apply to civil in rem forfeiture practices. Alternatively, Timbs may render these state provisions useless if they are not more protective of an individual’s rights than the protections afforded by Excessive Fines Clause of the Eighth Amendment. Individuals who lose property to forfeiture suits may choose to pursue a claim under the Eighth Amendment instead of a state provision, which both impacts the utility of state provisions and increases the amount of litigation in federal court.

Ultimately, the Court’s decision in Timbs is an important one. After Timbs, the only Bill of Rights protections not incorporated to the states is the Third Amendment’s right against the quartering of soldiers, the Fifth Amendment’s right to a grand jury indictment, and the Seventh Amendment’s right to a civil jury trial. The application of the Excessive Fines Clause to the states will have many practical consequences for law enforcement agencies and federal court litigation, and it gives those who lose property to civil forfeiture a way to challenge that decision.


Sources

Adam Liptak and Shalia Dewan, Supreme Court Limits Police Powers to Seize Private Property, New York Times, (Feb 20, 2019).

Amy Howe, Opinion Analysis: Eighth Amendment’s Ban on Excessive Fines Applies to the States, SCOTUSblog (Feb. 20, 2019).

Chris Geidner, The Supreme Has limited How Much Private Property States Can Seize, Buzzfeed News (Feb. 20, 2019).

Timbs v. IN, 586 U.S. ____ (2019).

Photo courtesy of the New York Post.

February 2019: Gregory Thornton (L’71)

Gregory Thornton always knew he wanted to work in a professional field. While in undergrad at Colgate University, Greg started out as a pre-med major. He soon realized that medicine was not his forte and turned to his love for literature and history. Greg changed his major to English with a minor in philosophy. While he enjoyed his major, he still had a desire to work in a professional field and wanted to have an array of opportunities, so Greg applied to law schools.

Gregory Thornton
Retired Senior VP of Operations and Employee Relations, Boston Globe

During his time as in undergrad, Greg met his now wife while she was finishing up her studies at Elmira College. Greg applied to Syracuse and was able to start law school while his wife finished up her final year of undergrad.

Greg’s started law school like most other law students, he had no idea what type of law he wished to study. During his second year, Greg had the opportunity of taking labor courses with  Professor Robert Koritz and devolved an interest in labor law. Greg loved this area of the law and the opportunity it gave him to use his own creativity to solve labor relations issues especially in collective bargaining. With the love of labor law in mind, Greg applied for clerk positions in firms around upstate New York that had labor practice.

Greg ended up clerking at Hinman, Howard, & Kattell in Binghamton and Blitman & King, LLP in Syracuse. These two firms allowed Greg to get some experience in labor law practice during his time at law school. He was able to get a sense of both the union side and the management side of labor relations; an experience that Greg would soon use in his legal career.

Finding a job after graduation was no easy task back then. Greg contacted firms on his own, set up his own interviews, and mailed out inquiries and resumes to over a hundred firms. His final year of law school was spent taking trips all over upstate New York, Connecticut, and North Carolina applying to various firms with labor practice departments. Greg’s hard work paid off and he accepted a position at Pullman, Comley, Bradley, and Reeves (now known as Pullman & Comley, LLC) in Connecticut. Greg was particularly excited about starting work there since the firm had an extensive labor practice. After graduating in 1971, Greg and his wife packed up their bags and left Syracuse and headed to Connecticut. Greg was admitted to Connecticut Bar that year.

While at the firm, Greg worked as an associate under Dwight Fanton who at the time was the head of the labor practice at the firm. Dwight had a number of clients including several Connecticut newspapers. Greg worked with Dwight and, after about a year at the firm, ended up doing labor work and negotiating contracts with clients himself- a fast track opportunity for only being a year out of law school. He also had the advantage of practicing under a supportive mentor in Dwight Fanton.

His time at Pullman, Comley, Bradley, and Reeves brought him in contact with the Gannett Co., a national newspaper chain that published more than a hundred newspapers all over the country with more than 150 labor contracts across the chain. This contact with Gannett turned into a job offer and was only the beginning of Greg’s fulfilling legal career, working with a wide vary of newspapers. Greg took the opportunity with Gannett and once again, he and his wife packed up their bags and headed to Rochester.

While at Gannett, Greg was admitted to the United States Federal District Court and the Sixth Circuit and Second the Court of Appeals, and ultimately the United States Supreme Court- though his one case there only went as far as being denied certiorari. As Director of Labor Relations and Labor Counsel for Gannett, Greg represented Gannett before the National Labor Relations Board and various state human right agencies. The papers Greg represented in negotiations and labor manners ranged all over the country from New York to Michigan to California to even Hawaii.

He truly enjoyed seeing how labor/ management relations worked all over the country. One instance in particular Greg remembers was his time in Hawaii. Greg was in Hawaii negotiating contracts for almost three months. The labor relations atmosphere there were vastly different than on the “mainland”. There were no suit and ties worn, deals would often be made over group meals, and sometimes “off the record” meetings were even held in huts on the beach.

Though Gannett was a great experience, the traveling started to take a toll. Greg wanted more time with his family. Representatives of the Chicago Tribune Company contacted him about a position with the New York Daily News. Greg ended up taking up this new opportunity with the Daily News in New York City. During this time, newspapers began to start to feel the effects of dramatic changes in the industry with automation and the internet. There were strikes, threats of closing, and massive consolidations were needed. This was especially true at the Daily News. Greg and those he worked with dealt with tough negotiations and concession agreements between the unions and the owners of the newspaper. With hard work, Greg was able to work through these problems and ended up receiving special recognition by the Tribune Company with the Robert Reneker Award for Outstanding Newspaper Executive of the Year in 1983.

In 1988, Greg received an opportunity to join the Boston Globe. He met with Bill Taylor, the then chairman and publisher. An agreement was reached, and Greg became the Vice President of Employment Relations. He was the Chief Spokesman for all the negotiations for the Boston Globe. Greg became very involved with the Globe on these issues and continued working on them during the transitioning when the New York Times bought the company in 1994, ultimately dealing with a huge revenue loss in 2008 as a result of declining revenues. Greg came up with plans to negotiate the needed changes to the labor contracts to help get the company back on track and in “the black”. Greg ended up being a recipient of the Cushing-Gavin Award in 2002 for his outstanding labor union/ management work. During his time at the Globe, Greg became Senior Vice President of Operations and Employee Relations and became responsible for the Globe’s printing operation as well as all of its plants in addition to the labor negotiations.

After 22 years of working with the Globe, Greg retired in 2010, although he continued for two more years in a consulting capacity. Now, Greg, his wife, and children enjoy their new snowbird home in Florida during the winters. Greg is grateful of all the opportunities his career has given him and gives extensive gratitude towards his wife for being his biggest supporter. Greg’s time on Law Review and his education from law school helped guide him during his career path. When looking into an initial positions, Greg encourages students not only to look at the compensation, but also to look at the hands-on opportunity and the mentorship support the position may offer.

This story was written by Alumni Editor Stefani Joslin and is the sixteenth installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.’ Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.

Election of Volume 70 Staff

We are proud and excited to announce the election of the Senior Editorial Staff of Volume 70 of the Syracuse Law Review! The new staff will be fully transitioned into their positions by the conclusion of the Spring semester. Please join us in congratulating this talented group of students!

 

Trapped in the Freezing Cold: Federal Defenders File Lawsuit Against the Metropolitan Detention Center

Written by Julia Wingfield

 

Last week’s “Polar Vortex”, caused sub-zero temperatures and high-speed winds to grip the east coast. New York City was particularly affected by this weather pattern—with temperatures plunging into the single digits. It was so cold that firefighters, combating a fire in a commercial building, took turns warming up on nearby buses. Schools, services and businesses shut down, and people hunkered down in their homes to stay warm.

At the Metropolitan Detention Center, a federal jail located in Brooklyn, the inmates were not given such an option. At the end of January, an electrical fire knocked out the power in most of the building, which resulted in inmates being confined in their cells, without hot water or heat.

As news of the conditions reached the general public, both the warden of the jail and the Bureau of Prisons initially denied there was any loss of power, claiming inmate housing conditions had been minimally impacted.

After dozens of interviews with staff, inmates, and inmates’ family members, this proved not to be the case. The week-long blackout resulted in freezing cold temperatures inside the cells. Inmates could see their breath, food was served undercooked, and to keep warm inmates filled cans with water and used contraband lighters to heat them. Inmates were kept locked in their cells for twenty-three hours a day in the dark and cold.

After public outcry and a series of protests, on February 3 power was restored. A few days later the Bureau of Prisons opened an investigation into the conditions of the jail. The Justice Department, in their oversight capacity of the Bureau of Prisons, released a statement, declaring they were “committed to the safe and humane living and working conditions of all inmates and employees.”

Not the First Accusation of Mistreatment

This is not the first time the Metropolitan Detention Center has been accused of mistreatment. Investigations by the Inspector General have been opened in the facility before.

First, after the September 11, 2001 terrorist attacks, investigations showed that staff were physically abusing Muslin inmates. These inmates were slammed into walls, and staff threatened their lives while they were behind bars. The Inspector General has also looked into other physical abuse. Both in 2002 and in 2006, investigations were opened after claims of staff beating inmates.

More recently, in 2013 and 2016, the Inspector General opened investigations into officers who were accused of sexually assaulting female inmates. After the investigation, three staff members were convicted. One of the staff members was convicted of repeatedly raping a victim and threatened to send her to solitary confinement if she reported it.

The Lawsuit

As a result of this pattern of mistreatment, and because of the recent conditions in the jail, the Federal Defenders of New York have filed a lawsuit against the Metropolitan Detention Center. According to the Federal Defender’s office, ““The I.G. previously has investigated M.D.C. and issued harshly critical reports. But nothing has changed.”

The complaint names both the Bureau of Prisons and the jail’s warden as parties to the lawsuit. After outlining the conditions at the jail, and the Bureau of Prison’s lack of response to those conditions, the complaint states two causes of action.

First, the Bureau of Prisons violated the inmates’ Sixth Amendment right to Counsel. The Sixth Amendment to the Constitution guarantees that, “in all criminal prosecution, the accused shall enjoy the right…to have Assistance of Counsel for his defense.”

During the blackout, the Bureau of Prisons cancelled nearly all legal visitation to one of the buildings from January 27 until February 4. No detailed information was provided to defense attorneys regarding the reasons for these cancellations. Additionally, no information was provided to attorneys about the “dire” conditions in the Metropolitan Detention Center. The Federal Defender argues that these actions substantially interfere with the right to counsel, and constitute a violation of the Sixth Amendment.

Second, the complaint claims the Bureau of Prisons violated their own regulations, the Administrative Procedure Act. These regulations require wardens to “provide the opportunity for pretrial inmate attorney visits on a seven-days-a-week basis.” Additionally, they prohibit the limitation of the frequency of visits for all inmates, requiring wards to “make every effort to arrange for a visit.” The Federal Defender argues that these failures show the BOP’s inability to follow its own regulations is “arbitrary and capricious and contrary to the law.”

The complaint seeks declaratory and injunctive relief, specifically the appointment of an outside monitor for the jail.

The Bureau of Prisons continues to underscore their narrative, with their lawyer arguing that the conditions only affected a handful of inmates, which does not warrant the appointment of an outside monitor. They also point out that the conditions have been fixed.

Ultimately, the Bureau of Prisons is investigating into the conditions of the jail, and the effect those conditions had on the inmates. The question remains: will this internal investigation be sufficient to address any mistreatment? The pressure of a lawsuit, and the public outcry, may be enough to push the Bureau of Prisons toward change.


Sources

Complaint for Petitioner, Federal Defenders of N.Y., Inc., No. 1:19-cv-00660-MKB-SMG, (E.D.N.Y 2019).

Annie Correal and Joseph Goldtein, ‘Its Cold as Hell’: Inside a Brooklyn Jail’s Weeklong Collapse, N.Y. Times, (Feb. 9, 2019.

Benjamin Weiser and Ali Winston, Brooklyn Federal Jail Had Heat Failures Weeks Before Crisis, Employees Say, N.Y. Times, (Feb. 5, 2019.

28 C.F.R. §551.117(a).

28 U.S.C. § 543.13(b), (d).

5 U.S.C. § 706(2).

Photo courtesy of the Washington Post.

New York Abandons Link Between Students’ Standardized Test Scores and Teacher Evaluations

Written by Kristian Stefanides

 

History

In 2015, Governor Andrew Cuomo spearheaded a national movement in American public education to revamp the system by determining a teacher’s rating by their students’ standardized test results. Cuomo promised that half of a teacher’s ratings would be based on how well (or how poorly) students performed on standardized tests.

The decision was met with resistance by parents and educators, who felt the system was an unfair way to evaluate job performance, as well as the anticipated stress this initiative would produce. Advocates held news conferences and rallies in protest of Cuomo’s new plan. New York parents, backed by teacher’s unions, showed the largest display of opposition by refusing to permit their children to sit for portions of the tests. As a result, 240,000 students did not sit for the English and math sections of the test last year.

Moving in a New Direction

Four years later, Cuomo has moved in a new direction, and New York is about to become a part of a larger group of states, including Colorado and California, dispensing with this form of teacher evaluations.

In Los Angeles, the nation’s second-largest school district, the city’s teachers’ union held a massive strike, partly due to this issue, and after one week, they were offered a deal by the city’s school district to create a new plan that would be less focused on the use of standardized exams. In Denver, the city’s teachers authorized a strike by vote that was in part due to a bonus system that rewarded teachers who had the privilege of working at schools with high exam scores.

The New York State Legislature’s new bill was originally passed last spring in the Assembly but did not move through the Senate until this year. Now that it has passed, teachers’ unions and local school districts in New York, along with some guidance from the Education Department, will be the official determinants of an educators rating. Standardized tests will not be a requirement in this evaluation, a move heavily backed by the New York State United Teachers (NYSUT) Union and Democrats. The NYSUT is fearful of a future reversion to Cuomo’s previous stance, but many have shown support for Cuomo’s new direction.

“Most parents believe their local school and teachers are good. To have evaluations that contradict that creates some dissonance,” said Columbia University Teachers College professor, Aaron Pallas. “The state tests seem so far removed from day-to-day classroom practice.”

When his original evaluation plan passed a few years ago, Cuomo pushed the Board of Regents to place a ban on the use of standardized testing scores as a means for the evaluation of teachers due to the protests. Essentially, this ban will be codified into New York state law with the new bill.

Data shows that in 2016, ninety-six percent of teachers were rated “highly effective” or “effective” while only one percent was found to be “ineffective.” However, that same year, less than forty percent of students passed the standardized exams in math and English.

What evidence of low test scores was once used as a factor for rating a teacher as ineffective and as a way to fire them will now be disregarded in determining a teacher’s fate. Rather, educators will not be penalized over poor test results, but instead, will be protected.

President of the United Federation of Teachers based in New York City was pleased with Cuomo’s new plan stating, he “now understands what standardized tests are, and their limitations, and I give him credit for that.” No longer will teachers have to worry that their students’ standardized test scores will be linked to their teaching evaluations, and potentially the loss of their jobs.

Although many teachers, parents, and scholars are in favor of the new bill, evaluation advocates are unsatisfied.

“People overplayed their hands,” president of the National Council on Teacher Quality, Kate Walsh, said. “Instead of adjusting, they threw the cards in and went home sulking.

But Cuomo’s new plan came from listening to local communities. Jim. Malatra, former top aide, served as the governor’s office’s soundboard for the 2015 education agenda. Parents and teachers voiced concerns about the old bill and wanted something different.

New York City is Following Suit

Similar to Cuomo’s prior stance, longtime New York City Mayor Michael Bloomberg envisioned a teacher evaluation system where students’ test results defined a teacher’s rating. But since taking office in 2014, Mayor Bill de Blasio has worked to take the City into a new direction.

The Future of Teacher Evaluations

“What we’ve heard from teachers is that there’s a sweet spot where assessments are useful for informing the teaching and learning process,” Paula White, executive director of Educators for Excellence in Excellence, a teacher organization in New York, said. “Teachers invented tests” after all, she noted.

With notable advantages and disadvantages to both sides, a compromise in the middle may be suitable to not overly rely on standardized tests for teacher evaluations, but not to eliminate those tests completely.

While basing teachers’ evaluations on students’ exam performances may motivate teachers to give students their best efforts, it is difficult to determine whether test scores are the best way to evaluate more than half of a teacher’s performance when many other factors can play into a student’s score. “Our teachers and students are more than their test scores,” bill sponsor, Senator Shelley Mayer, said in a statement. “Thank you to Majority Leader Andrea Stewart-Cousins and

my colleagues for changing state law to allow districts to determine the most effective ways to measure student and teacher performance.”


Sources

Eliza Shapiro, New York Joins Movement to Abandon Use of Student Tests in Teacher Evaluations, THE NEW YORK TIMES (Feb. 1, 2019.

Rick Karlin, Major education bills on tap for New York Legislature next week, TIMESUNION (Jan. 18, 2019.

Zak Failla, New York Abandons Use of Tests In Teacher Evaluations, DAILY VOICE (Feb. 3, 2019.

Photo courtesy of Washington Post.