In 1925, Congress enacted what they thought was a modest law enabling sophisticated businesses to agree to resolve their disputes through private arbitration. Decades later, the Supreme Court transformed it into something completely different — enabling corporations to force workers and consumers into signing away their right to appear in a real court, and shunting them into a privatized arbitration system where the arbitrator is often closely aligned with the corporation. In one case, a private arbitrator even ordered a woman to pay more than $11,000 that she did not owe because she has the same name as another woman who did owe money.

There are supposed to be safeguards against the most abusive forms of forced arbitration. Federal law provides that forced arbitration cannot be used against “workers engaged in foreign or interstate commerce,” for example. But, in Circuit City v. Adams, five conservative justices held that forced arbitration can be used against workers engaged in foreign or interstate commerce. Federal arbitration law does not even mention class actions — which are often the only way that plaintiffs with relatively small claims can vindicate their rights — yet the conservative justices used it to effectively immunize corporations from class action lawsuits. Under this Supreme Court, the 1925 Federal Arbitration Act has been transformed into a magic wand corporations can wave in order to make lawsuits against them go away.

Earlier this week, Rep. Hank Johnson (D-GA) and Sen. Al Franken (D-MN) introduced a bill to fix this. Under the Arbitration Fairness Act, “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, antitrust dispute, or civil rights dispute.” So your boss cannot illegally fire you and then force you into a corporate-owned court. Your cell phone company cannot overcharge you and then escape meaningful accountability. And your mother’s nursing home will no longer be able to abuse its charges and then shunt any lawsuits into a biased arbitration panel.

At least, that is, if this bill is signed into law. Until then, the Supreme Court’s decisions expanding federal arbitration law into areas expressly forbidden by the law’s text will remain in effect.

A major U.S. private prison operator known for inmate abuse, violations, and disregard for the truth reported a 56-percent spike in profit in the first quarter of 2013, due in part to its new strategy for drastically reducing its taxes, the Associated Press reports. During a conference call touting its success, representatives at GEO Group boasted that the company continues to have “solid occupancy rates in mid to high 90s” and that they are optimistic “regarding the outlook for the industry,” in part due to a “growing offender population.” GEO Senior Vice President John Hurley assured investors during the call:

We have a longstanding partnership with the Federal Bureau of Prisons, the United States Marshal Service and US Immigration and Customs Enforcement or ICE. … We continue to see meaningful opportunities for us to partner with all three of these federal agencies, notwithstanding the various issues with the federal budget, which we believe will have no material negative impact on our business. The federal bureau of prisons continues to face capacity constraints coupled with a growing offender population.

The federal prison population has swelled 790 percent since 1980, in large part due to draconian drug and immigration laws. And the United States maintains the title of the world’s number one jailer. Private prison operators nonetheless remain enthusiastic about the prospects of high incarceration rates for business. Representatives on this call shied away from the strong language fellow prison firm Corrections Corporation of America used during its investor call in February, when CEO Damon Hininger assured a strong “continued demand for beds” even after immigration reform. GEO executives explained that they are now taking the position that “discussing our approach and strategies about any particular procurement is really not in the best interest of our company or our shareholders.”

Following a trend of corporations achieving dramatic tax reductions by becoming a real estate investment trust (REIT) – a mechanism historically reserved for firms holding real estate as an investment — both GEO and fellow prison operator Corrections Corporation of America successfully persuaded the Internal Revenue Service recently that they are essentially holding real estate, analogizing prisoners to renters paid for by the government. In reality, the job of running a prison is only nominally about the facility where it’s housed, and primarily about ensuring humane prisoner treatment, inmate rehabilitation, and public safety. But private prison corporations charging “rent” to house prisoners make no more or less money depending on whether they achieve these goals, particularly not when immense political spending to lobby for incarceration and privatization outweighs the public pressure from widely reported abuses at private facilities.

In a joint op/ed Wednesday, the three Republican members of the Federal Election Commission blasted campaign finance reformers and good-government groups for proposing changes to the impotent agency, defending themselves as “fair and impartial” regulators and administrators of campaign finance laws. But this same trio has been responsible for historic deadlock at the Commission and has openly refused to follow the campaign rules enacted by Congress.

FEC Commissioners Caroline Hunter, Donald McGahn II, and Matthew Petersen, all three of whom continue to serve though their terms have expired, wrote that “The agency’s harshest critics disregard the agency’s prime enforcement directive: Enforce the law as it is, not as some wish it to be.” They continue:

Ultimately, charges that the agency “does not enforce the law” ignore the legal parameters set by Congress that have been further limited by the courts. Failure to recognize these constraints would leave political participants at the mercy of unelected bureaucrats, an outcome both Congress and the courts have rejected.

Of course, thanks to these three, the Federal Election Commission has not followed the “legal parameters set by Congress.” Indeed in 2011, McGahn conceded “I’m not enforcing the law as Congress passed it… I plead guilty as charged.” Instead, he argued, he enforced the law based on his own interpretation of what the Supreme Court would want him to do. “In a close call, the tie goes to the speaker, not the regulator… The court has said certain [portions of McCain-Feingold] are unconstitutional.”

But rather than wait for the courts to rule on who should have to disclose the donors funding their electioneering communications, these Republicans instead simply chose to ignore the clear text of the 2002 campaign finance law and have allowed hundreds of outside group ads to be aired with no real disclosure as to who bankrolled the message.

And by waiting as much as five years to take action on obvious violations, they have ensured that campaigns can do virtually anything without fear of any meaningful penalty.

Former Common Cause President Scott Harshbarger once quipped that, ”This is probably the only agency in Washington that has done from the beginning exactly what it was intended to do, which was to do nothing.” But with an unprecedented number of deadlocked votes on even routine enforcement matters, Hunter, McGahn, and Petersen have managed to make historically weak campaign finance enforcement almost non-existent.

Earlier this week, a Mississippi man escaped death by just a few hours when the state Supreme Court agreed to block his execution, scheduled for that Tuesday evening. Although hair sample evidence was available for testing, and Willie Manning’s conviction had hinged on unreliable jailhouse informant testimony, the court had just a week earlier refused to order DNA testing, and was prepared to allow the execution to go forward. It was only after the FBI revealed that its own analysis of key evidence was unscientific and invalid just days before Manning’s conviction that a court agreed, without comment, to block his execution.

Now, in another murder case involving similar FBI error, a man who spent 32 years in prison for a Maryland murder has been granted a new trial after DNA testing performed in March discredited key FBI statements that linked him to hair samples at the crime scene, and refuted statements about the origins of both the bullets and the gun used at the crime scene. The Washington Post reports:

The genetic testing contradicted testimony by an agent with the FBI Laboratory who said that he found [John Norman] Huffington’s hair in the bed where one victim was killed, claiming an accuracy rate of 99.98 percent.

“Due to the substantial weight given to the microscopic hair analysis by the jury . . . as well as the results of the DNA test . . . there is a significant possibility that the outcome of Petitioner’s case may have been different,” Dwyer wrote in a May 1 order that Huffington’s lawyers received Wednesday. […]

Huffington’s case was among those featured in a series of articles last year in The Washington Post, which reported that government officials knew for years that flawed forensic testimony and false hair matches may have led to hundreds of wrongful convictions. […]

Huffington’s lawyers said they did not know of specific problems with the FBI hair examination until informed by The Post that in July 1997, [Prosecutor] Cassilly considered and then rejected having the FBI review the case because the hair expert involved, FBI Special Agent Michael P. Malone, had been discredited.

Huffington was initially sentenced to death, before an appeals court lowered the punishment to two life sentences. The conviction hinged on both the FBI’s flawed data and the testimony of Huffington’s friend that he said he intended to use his gun to commit the crime. Huffington says he went home before the violent shooting and stabbing occurred.

Huffington’s case is one of potentially hundreds of cases in which prosecutors relied upon flawed evidence, according to a 2012 Washington Post investigation. Even in those cases in which the Department of Justice had already determined the FBI analysis was flawed, it only disclosed that fact to the defendants in 30 of 137 cases. Following the Washington Post report, the DOJ expanded the scope of its review to thousands of FBI analyses, and revealed the critically flawed evidence in Manning’s and Huffington’s cases. Only after the DOJ’s review did the FBI commit to testing Huffington’s DNA evidence. It is still unknown whether Manning’s DNA evidence will be tested.
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The number of stop-and-frisks performed by the New York Police Department dropped in the first three months of 2013, and so did the city’s crime rate, according to new data from the New York City Council. The statistics come as the NYPD’s aggressive use of stop-and-frisk is under review in a major lawsuit challenging the practice’s constitutionality. Plaintiffs allege an expansive and racist use of police stops has been applied without legal justification, subjecting vast swaths of the city’s young African American and Hispanic men to invasive frisks, unwarranted searches, and detention at police centers for alleged minor crimes, often marijuana possession.

The latest statistics represent a continued slow decline in stops since the practice has come under fire, but the stops continue to have a severe disproportionate effect on minorities. The Wall Street Journal reports:

The number of stop-and-frisk reports filed by New York City police fell 51% in the first three months of this year compared with the same period last year. […]

From Jan. 1 through March 31, officers conducted 99,788 stop and frisks, compared with 203,500 during the same period in 2012, according to New York Police Department data. It wasn’t clear how many of those encounters resulted in a subject being frisked after a stop.

They also showed that the reduced stops in the first quarter of 2013 resulted in a 43% decline in weapons recovered compared with the same period in 2012.

Overall crime is also down 2.7% this year through April 28 with murders leading the way with a 30% decline compared with the same period last year, police data show. […]

Data from the first quarter of this year has been consistent with previous years: Black and Hispanic people accounted for the vast majority of stops.

African-Americans were the subjects of 56% of the stops and were 65% of the violent-crime suspects identified by alleged victims, according to the NYPD data. Hispanics were the subjects of 30% of stops and were 27% of violent-crime suspects.

Officers testifying during the weeks-long trial on the policy have revealed that they were told to target young, black men, and expected to meet monthly quotas for stop-and-frisks and arrests.

Police argue that the stop-and-frisk policy is necessary to ensure public safety. But the New York Civil Liberties Union is pointing out that the drop in crime — particularly murder – weighs heavily against the argument that more frivolous stops means more safety. Last month, Mayor Michael Bloomberg (I-NY) blasted the NYCLU for its advocacy to reform stop-and-frisks, calling the civil rights group “extremists” akin to the NRA.

(HT: Capital)

You may think your email is private, but federal investigators may not agree. Documents uncovered via Freedom Of Information Act requests by the American Civil Liberties Union (ACLU) suggest the FBI is not obtaining warrants to read email, citing an outdated federal computing law from the 1980s. According to an excerpt from the 2012 FBI Domestic Investigations and Operations Guide:

“In enacting the [Electronic Communications Privacy Act of 1986 (ECPA)], Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers…[I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment.”

ECPA, the law governing access to email and cloud stored data, was passed at a time when the cost of online storage was so high it seemed unthinkable that anyone would store data there indefinitely, so anything left on networked storage for longer than 180 days was considered abandoned and required only an administrative subpoena to access. But in the time since it became law, the price of online storage went down and many people started to rely on free cloud based email solutions like Gmail or Yahoo! Mail as digital storage lockers.

There have been numerous efforts to update ECPA to be more in line with current consumer behavior and the Fourth Amendment, which protects against unwarranted searches and seizures, but none as of yet have succeeded. The most recent attempt to update the law to clearly require a probable cause warrant hit a major milestone in April when S.B. 607, a standalone fix, was approved by the Senate Judiciary Committee. Rep. Matt Salmon (R-AZ) introduced a companion bill to the House on Tuesday, although a similar proposal was already introduced by Reps. Zoe Lofgren (D-CA), Ted Poe (R-TX) and Suzan DelBene (D-WA) earlier this year.

But while the law has not yet been updated, the courts and tech companies are adapting to the way consumers use these services in the modern era. In the 2010 case United States v. Warshak, a Sixth Circuit Court of Appeals panel including two Republican-appointed judges ruled email providers cannot be compelled to turn over the content of messages without a probable cause warrant regardless of how long it has been stored in the cloud, but that ruling only applies to the four states in the Sixth Circuits’ jurisdiction. Earlier this year a number of tech companies including Google, Microsoft, Facebook, and Yahoo announced they go beyond ECPA and require warrants for email content data on Fourth Amendment grounds.

Rep. Steve Stockman’s (R-TX) official campaign Twitter account sent out a series of tweets on Wednesday evening offering one lucky American the chance to win an assault rifle. Not just any assault rifle, though, Stockman is offering the Bushmaster AR-15, the same rifle used in the tragic shooting at Sandy Hook Elementary School in Newton, CT:

I’m giving away a FREE Bushmaster AR-15! Sign up in just seconds at stockman2014.com/ar15-entry/ #tcot #teaparty #gop #tlot #rkba #nra #texasgop

— Rep. Steve Stockman (@ReElectStockman) May 8, 2013

Want to win a FREE AR-15? Congressman Steve Stockman is giving one away!Sign up at stockman2014.com/ar15-entry/ Grab this gun before Obama does!

— Rep. Steve Stockman (@ReElectStockman) May 8, 2013

In fairness to Stockman, his gun raffle is unusually compliant with federal law for someone who has threatened to work towards impeaching President Obama for seeking to expand background checks. According to the official rules listed on the campaign’s website, the newly minted assault rifle owner will have to go through this same supposed imposition on their freedom:

Firearms prizes must be claimed through a licensed firearms dealer in accordance with federal, state and local law. Firearms prize winners must meet all legal requirements and will be subject to a dealer’s background check.

This isn’t the first time Stockman’s campaign account pulled an outlandish stunt to gain donations or grow its email list. In April, the account sent out word that Stockman would be offering bumper stickers that read “If babies had guns, they wouldn’t be aborted.”