1. CHAPTER 11 THE SUBSTANCE OF JUSTICE

2. Civil Liberties Introduction –Civil liberties are the basic individual freedoms from government interference that are crucial to sustaining a democratic government. –The First Amendment to the U.S. Constitution forbids congressional restrictions on the freedoms of speech, press, assembly, petition, and religion, and over time the 14th Amendment has been held by the U.S. Supreme Court to apply most of these protections to the states—a process known as incorporation. –The states all have similar constitutional guarantees, suggesting agreement that these rights are of fundamental importance, but this has not precluded disagreement about how these freedoms were to be protected. –The meaning of any political guarantee must be fought over, and in the South, especially, the political culture has been slow to grant individual freedoms to African Americans and Mexican Americans. –In the past two decades, however, the Texas judiciary has opened up and become more active in this area. –Because there are always politicians and private citizens who do not understand or value civil liberties, there are constant battles, sometimes in the legislature, but more often in the courts.

3. Civil Liberties Freedom of Expression –Although "freedom of speech and press" seems to be an unambiguous phrase, there have been many problems of interpretation. –In 1925, the U.S. Supreme Court, in Gitlow v. New York, ruled for the first time that the freedom of speech and press guarantees of the First Amendment were binding on state and local governments through the 14th Amendment's due process clause. –The Court's interpretation of the First Amendment has evolved to the point that nonspeech acts intended to convey a political message are now protected. For example, at the 1984 Republican national convention in Dallas, Gregory Lee Johnson burned an American flag in protest and was arrested for violating a Texas law against flag desecration. In 1989, the U.S. Supreme Court ruled in the case of Texas v. Johnson that flag burning was "symbolic speech" protected by the First Amendment. A large majority of Americans showed, by their opposition to this decision, that they failed to understand that the importance of the First Amendment lies in protecting unpopular, minority opinions. In response to public opinion, the U.S. Congress passed the Flag Protection Act of 1989, but a federal court quickly struck down this law for the same reason that the Supreme Court had invalidated the Texas statute. Protestors against the Iraq War during the spring of 2003 in Austin claimed that they were exercising their right to civil disobedience by blocking traffic but the Austin police arrested some protesters to protect the city’s residents from disruption of their lives. Gregory Lee Johnson’s expression of his opinion had not interfered with the rights of other people to go about their business; the anti-war protesters imposed on other people.

4. Civil Liberties Freedom of Religion –The "establishment clause" has been interpreted to mean two things: There should be a "wall of separation" between church and state so that government may not favor religion in any way. Government may aid religion--at least indirectly--as long as it shows "no preference" among the various religious beliefs. –In practice, states have been permitted to aid religion in many ways as long as they do not show preference for one church over another. –The "free exercise" clause necessarily implies the freedom to disbelieve as well as to believe and the freedom not to worship as well as to worship and thus the Texas Constitution's provision requiring persons holding public office to "acknowledge the existence of a Supreme Being" is unenforceable. –Although the politics of religious freedom is often characterized by inconsistency and hypocrisy, courts have devised some tests to be applied in religious freedom cases. General laws may not ordinarily be violated in the name of religious freedom. If the public interest will not be seriously threatened, laws that conflict with religious beliefs may be overturned.

5. Civil Liberties Freedom of Religion, cont. –Intense religious belief can be translated into political tension and into conflicts with the federal constitution. Although the Supreme Court had declared unconstitutional a nondenominational prayer used in New York public schools and the reading of the Bible and recitation of the Lord's Prayer, cases of this type later arose in Texas. In June 2000, the U.S. Supreme Court upheld a lower appeals court ruling that the Santa Fe, Texas school board’s practice of allowing one student, elected by majority vote, to recite a “brief invocation and/or message” was unconstitutional. –In 2003 the Texas legislature passed a low requiring all the state’s schoolchildren to recite the Pledge of Allegiance to the American flag, then the Texas Pledge, and finally observe a minute of silence. However, the US Supreme Court has declared that a compulsory Pledge of Allegiance is unconstitutional because no one may be required to salute a flag or engage in any public ritual against his or her will. Thus, the 2003 Texas flag-salute law is likely unconstitutional and will be overturned when it is challenged.

6. Civil Liberties A Right to Keep and Bear Arms? –With about 800,000 violent crimes, including 18,000 murders, involving firearms being committed in the U.S. each year, gun control appears to be a possible means of reducing the number of homicides. –On the other hand, there are about 14 million hunters and millions of other gun owners in the U.S. who resist the idea of gun control and some who believe that carrying a concealed weapon will make people safer. –An important part of the gun control debate centers on the claim that the Second Amendment guarantees a "right to keep and bear arms." The National Rifle Association, with 4 million members, is tireless in arguing that the Second Amendment prohibits gun control and many politicians eager for NRA support echo the claim. Because the Second Amendment was created to protect state militias from being disbanded by the federal government, it does not guarantee an individual right to keep and bear arms. The U.S. Supreme Court has been consistent in interpreting the Second Amendment in light of its historical origins. There is neither legal nor historical support for the idea that citizens have a constitutional right to bear arms individually, as private citizens. –While the Texas appears to ensure that ordinary citizens will be permitted to own weapons privately, there is no constitutional right to carry weapons. –Under both the Texas and US Constitution the question of citizen gun ownership and use of firearms is subject to decisions on the legislature, a matter of public policy, not a question of civil liberties.

7. Civil Liberties Abortion –Abortion is such a divisive issue that people do not even agree on whether the fundamental issue is the right of a woman to control her own body or the right of the unborn not to be killed. –Until 1973 thee was national abortion policy. –Many states liberalized their antiabortion laws in the 1960s and early 1970s, but in 1973 the Supreme Court's decision in Roe v. Wade expanded the right to privacy and overturned all state antiabortion laws. –The debate between "pro-choice" and "pro-life" forces that was sparked by Roe v. Wade continues with pro-lifers engaging in a variety of mostly lawful activities intended to block individual abortions or bring political pressure to overturn Roe. –Pro-life forces argue that no court should have the authority to intervene in an area of public policy that impinges on such deeply-held personal values.

8. Civil Liberties Abortion –In Texas, the Christian Right succeeded in including an uncompromising “pro-life” plank in the he state Republican party platform, but some Republican candidates have tried to distance themselves from the party’s official position. –The liberal wing of the state Democratic party is staunchly pro-choice, but the party as a whole contains many different views on the issue. –In 1999 the legislature passed a “parental notification law” which was signed by the governor but resulted in judicial wrangling discussed earlier. –The 2003 legislature passed three laws that were intended to discourage or obstruct women from having abortions. The Women’s Right To Know Act required women to sign a statement at least 24 hours before termination of her pregnancy affirming that she had been given access to photos of fetal development and information regarding the risks of abortion. An amendment to the state’s general appropriation bill cut off all public funding to any organization that provides abortion. The Prenatal Protection Act defined an “individual” as beginning at the moment of fertilization and allowed criminal charges or civil lawsuits to be filed when an unborn child was killed.

9. Civil Rights Introduction –Civil liberties refer to rights citizens have to be free of government regulation of their personal conduct, while civil rights refer to the claims the members of all groups have to be treated equally with the members of other groups. –Generally speaking, if government harasses people because of something they have said or done, it may have taken away a civil liberty, but if it oppresses people because of some ethnic, gender, or other group to which they belong, it has violated their civil rights. –Historically, the Old South political culture in Texas kept state courts from actively protecting the civil rights of minorities, but these blights on democracy were eventually overturned by federal courts.

10. Civil Rights School Segregation –The U.S. Supreme Court's 1954 ruling that racially segregated public schools violate the equal protection clause of the 14th Amendment was unpopular in Texas and other states with segregated schools. –Although opposition to desegregation has diminished, it has not disappeared completely. The Dallas school district was in almost continuous litigation for thirty years attempting to defend unsatisfactory desegregation plans until DISD officials decided that compliance was a better strategy than resistance. In 2003, a US District judge decided that segregation no longer existed in DISD. –The great majority of school districts are now legally integrated, but the problem of de facto segregation by economic class has resulted in educational inequality.

11. Civil Rights Education--A Basic Right? –In 1987, Judge Harley Clark ruled in Edgewood v. Kirby that the state's system of public school financing violates the Texas Constitution. Vast disparities in the wealth of school districts in Texas meant that, at the time the Edgewood case was being prepared, one million of the state's three million school children were receiving inadequate instruction. The appropriate remedy--that is, the transfer of revenue from wealthy to poor districts--was nearly impossible to implement because the representatives of taxpayers in wealthy districts refused to vote for any revenue redistribution plan. –In October 1989, the Texas Supreme Court ruled unanimously that the system was unconstitutional and gave the legislature until May 1, 1990 to rectify it. –Following four special sessions limited by Gov. Clements' threats to veto any plan calling for new taxes, a bill was passed calling for somewhat increased funding but was immediately found to be unconstitutional because it perpetuated the existing inequities. –The Supreme Court rejected another of the legislature's makeshift plans in January 1992, after which the legislature sent yet another plan to the state's voters in the form of a constitutional amendment.

12. Civil Rights Education--A Basic Right?, cont. –When the electorate rejected the amendment in May 1993, Clark's successor, Judge Scott McCown, threatened the legislature with a court takeover of the schools. –The legislature responded with a law (held to be constitutional in December 1993) that would give poor districts about $450 million in property taxes from the ninety-eight high-wealth districts, but a number of school districts appealed this plan all the way to the Supreme Court where, in January 1995, it was upheld by a bare five-to-four majority. –In 2001, four wealthy districts challenged the Robin Hood plan arguing that it in essence forced all district to tax at the same top rate, thereby violating the constitution’s ban on a statewide property tax, but Judge McCown tossed out the suit. –By the middle of 2004, the state’s Republican leadership were trying to reach agreement on a new strategy to finance public schools and the Texas Supreme Court was reviewing Judge McCown’s refusal to consider the rich district’s arguments about the unconstitutional of the Robin Hood law. –In the area of school finance, the Texas judiciary has at least temporarily become the champion of the underdog and attempted to force the political system to ensure equal access to education.

13. Civil Rights Civil Rights in Modern Texas---Jasper and Tulia –As the Texas towns of Jasper and Tulia illustrate, there are still problems to overcome before everyone is treated equally in Texas. –In 1998 three White men dragged James Byrd, Jr. to his death in the East Texas town of Jasper. Two days after the crime the men were arrested and, supported by overwhelming evidence, two of the men were sentenced to death and one to life without parole. While the episode in Jasper illustrated that racism is still virulent in Texas, it also showed that racism is neither dominant nor respectable. –In Tulia during the Spring of 2000 thirty-eight people, mostly African Americans, were convicted on various drug charges on evidence by an undercover agent, Thomas Coleman. After journalists and the NAACP began to raise doubts as to the guilt of the defendants, solid evidence surfaced as to the unreliable nature of Coleman’s testimony in this specific case and his disreputable character in general. After an investigation found Coleman’s perjurious testimony rendered him unbelievable under oath, the Tulia defendants were released from prison and pardoned by Governor Perry, Coleman was indicted for perjury, and the county district attorney who prosecuted the case was under investigation. –While the cases evidence racism and indifference to the civil rights of local minority citizens, they also show that eventually justice was done and that Texas has progressed in granting equal rights to all its citizens.

14. Civil Rights Civil Rights for Convicted Criminals –People convicted of crimes retain some of their civil rights including those protected by the Eighth Amendment prohibition against "cruel and unusual punishment.” –For most of the 20th century, state prison systems were places where criminals were often subjected to treatment that was cruel, if not unusual, but, as the courts became more receptive to civil rights cases in the 1960s, many suits were filed in an effort to improve prison conditions. –In 1971, Federal Judge William Wayne Justice found that the Texas Youth Council was guilty of cruel and unusual punishment against the children and young people in its custody.

15. Civil Rights Civil Rights for Convicted Criminals, cont. –In Ruiz v. Estelle, a case that began in 1972 and attracted national attention, Judge Justice found the Texas Department of Corrections (TDC) to be guilty of cruel and unusual punishment in its treatment of state prison inmates. State officials reacted to the ruling by "stonewalling." It was years before Governor Clements and other state officials agreed to take the steps necessary to bring the TDC up to minimum standards. In 1992 Judge Justice approved settlement of the Ruiz case, and the state was put back in charge of its prisons but warned Texas authorities that the treatment of prisoners would continues to be monitored by the federal government. In 2002 Judge Justice approved an agreement ending the lawsuit. –Much progress has been made, but the recognition that prisoners and others in state custody have constitutional rights has come about only with difficulty.

16. Capital Punishment Texas is one of 38 states that imposes capital punishment for specific types of murder. Most Texans approve of the death penalty for criminals convicted of "capital felony," or murder. The U.S. Supreme Court stopped states from carrying out executions in 1972 due to the way the death penalty was applied, but in 1976 it once again sanctioned capital punishment subject to some rather stringent rules. –The judge or jury may impose the penalty only after careful consideration of the character and record of the defendant and the circumstances of the crime. –States may not automatically impose capital punishment upon conviction of certain crimes. –The decision must allow for consideration of mitigating circumstances. –Capital punishment may be imposed only for crimes resulting in the death of the victim.

17. Capital Punishment Texas resumed executions in 1982 and through 2003 had executed 313 murderers, the most of any state. Capital punishment is likely to continue in Texas unless the U.S. Supreme Court acts to stop it, but the Court has become more, not less, permissive in allowing states to have their way in matters of criminal law. There are smaller issues within the capital punishment question that present policymakers with hard choices. –One question is whether Texas should create a sentencing category of “life without parole” which enjoys almost as much support among Texans as capital punishment itself. –Although the official answer to the question of how old a young killer must be before he or she is too young to execute is seventeen, the issue is controversial.

18. Torts and Tort Reform Definitions –A tort is a private or civil wrong or injury resulting from a breach of a legal duty that exists by reason of society's expectations about appropriate behavior, rather than a contract. –Tort actions are lawsuits in which the injured party seeks money to compensate for losses and, in cases of willful and malicious misconduct, for "punitive damages."

19. Torts and Tort Reform The Movement for Tort Reform in Texas –The increase in the number of tort lawsuits and the publicity attending large jury awards in seemingly frivolous cases have created a public perception that the tort system is out of control and needs reform. –Business has claimed for years that it is stifled by unjustified litigation and doctors joined business leaders in complaining that awards in malpractice suits had forced many physicians to stop treating patients. –Reform leaders believe that the judicial system is dominated by the wrong values so that power must be taken out of the hands of judges and juries. –Lawyers and consumer groups argue that there is no “litigation crisis” and that the tort reform movement is the result of a business-physician alliance that is misleading the public. –Politically, the tort reform coalition was increasingly able to enact legislation as Republicans took over Texas government in 1994. –The "tort reform" movement in Texas targeted four aspects of the state's civil liability laws for change: Limits on both the determination and the amount of punitive damages. The elimination of joint and several liability. Restrictions on filings to the venue in which the injury occurred. Limits on the state's Deceptive Trade Practices Act.

20. Torts and Tort Reform The Outcome –What emerged from the 1995 legislature was a compromise. –The following are among the highlights of the new laws passed in 1995: Punitive damages were limited to the greater of $200,000 or the sum of two times economic damages, plus $750,000. The joint and several liability rule was changed so that a defendant would have to be more than 50 percent responsible to be held liable for all damages. The eliminate venue shopping, a business can be sued only in the county where an injury occurred or in a county where it has a principal office. Judges were given more power to punish plaintiffs who file frivolous suits. Plaintiffs who sue doctors or hospitals were required to post a $5,000 bond; if the claim proves baseless, the plaintiff forfeits the bond.

21. Torts and Tort Reform The Outcome, cont. –Republicans finished revamping tort laws in 2003 by limiting citizens’ ability to file class-action suits, conferring immunity from suits on certain companies, establishing penalties for plaintiffs who reject settlements, and capping “pain and suffering” awards in medical malpractice suits. –As a result of the tort reform movement, Texas civil courts are markedly less important and have much less freedom of choice and diminished authority. –Evaluations of the reform followed ideological lines. –Like other controversial issues in the areas of civil liberties and civil rights, the disagreement over the value of tort reform will never die, but because tort law does not involve constitutionally- protected rights the federal courts will likely leave this subject to the Texas legislature, governor, and courts which are now hostile to “frivolous” lawsuits.