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St. Louis Police Are Now Under Federal Investigation for Violating Protesters’ Civil Rights

Wed, 22 Nov 2017 14:00 -0500

The St. Louis police department’s record of police brutality has led to increasing scrutiny and widespread calls for reform. This week, the FBI and the Justice Department opened investigations into the conduct of St. Louis Metropolitan Police Department officers for unconstitutional actions during protests in September. The federal investigation is just the latest in a string of actions by courts and community leaders to hold the St. Louis police accountable for its systemic abuses of power. The federal investigation centers on allegations of civil rights violations by law enforcement officers when the community expressed its outrage, pain, and grief in protests after the September acquittal of police officer Jason Stockley in the killing of Anthony Lamar Smith. Police pepper-sprayed protestors and bystanders without warning, even spraying some people in the face when they were sitting on the ground with their hands zip-tied. Officers interfered with people recording police activities in photos and on video. Police also unlawfully detained people during a kettling incident in downtown St. Louis. The ACLU of Missouri sued the city for this police misconduct. In our suit, we asked for the court to protect the people whose rights were violated and whose rights could be violated again. It took three days of testimony and 18 witnesses to tell the stories of what hundreds of people at protests experienced on the streets of St. Louis: systemic constitutional violations and retaliatory actions by police officers. In a win for the people of St. Louis and for the First Amendment, a federal judge granted our preliminary injunction on Nov. 15, requiring police to immediately adopt protocols to prevent mass deprivation of people’s constitutional rights. Under the protocols, the city of St. Louis cannot declare an “unlawful assembly” unless there is an imminent threat of violence. It also cannot declare an “unlawful assembly” for the purpose of punishing people for exercising their First Amendment rights. And police may not use chemical agents against nonviolent protestors in the absence of probable cause for an arrest or use chemical agents to disperse protestors or as punishment for protesting. This is a win for the constitutional rights of the people of St. Louis, particularly communities of color. St. Louis is one of the nation’s most racially segregated cities, where ZIP codes separated by only a few miles can mean an 18-year difference in life expectancy. The city’s residents also confront the deadliest police force in the United States. St. Louis police kill people at a higher rate than any police department among the nation’s 100 most populous cities, according to data gathered from January 2013 to June 2017. In an unusual move for this stage of the case, after issuing her preliminary ruling the judge also ordered the St. Louis Metropolitan Police Department and the ACLU to mediation — so that the case potentially can get resolved quickly without going to trial. While it’s important that the federal government investigates these systemic violations of civil rights, the city of St. Louis should now work with the community to develop a collaborative policing model that protects constitutional rights and promotes public safety. We believe the court saw a need — and opportunity — for real change through collaboration. The St. Louis police department doesn’t need to look far for a model of how to change its culture of policing. The U.S. Department of Justice’s consent decree with the nearby Ferguson Police Department provided many common-sense solutions for police interactions with protestors and the community after the fatal police shooting of Michael Brown. Much of what the judge granted in our preliminary injunction came from this well-thought-out model. There are community-wide reform efforts as well. The Ferguson Commission, a group of leaders tasked by the Missouri governor to study the reasons for the systemic inequalities in the St. Louis region, also outlined recommendations for collaborative[...]



The Drag Show Must Go On!

Wed, 22 Nov 2017 12:30 -0500

The aldermen of Portland, Tennessee, ran into the First Amendment when they tried to ban drag shows from their town. On Monday night, the attempt by the town of Portland, Tennessee, to ban drag shows came to an end. For months, the town’s aldermen have been searching for a way to regulate drag shows out of existence. But the First Amendment got in their way. It all started in August, when performers with Elite Productions put on a drag show at Envy Restaurant Bar & Grill in downtown Portland. The show was sold out, and the performers went on to hold several more successful performances. Though popular with the public, the show became a target for the Portland board of aldermen, which has spent much of the past several months trying to find a way to ban drag shows. In September, board members introduced an ordinance that sought to classify drag shows as “adult cabaret,” which the town described as a form of “adult-oriented business” that “may be erotic [in] nature.” The ordinance would have allowed Portland to zone the drag show into oblivion. The problem with the proposed ordinance is that Elite’s shows aren’t erotic – they include fully-clothed impersonators singing, dancing and performing comedy bits. (The aldermen admitted that they had never been to the show.) Male and female impersonation is a time-honored tradition in artistic works, going back to Shakespeare’s “Twelfth Night” and “Merchant of Venice,” “Yentl,” “Tootsie,” the Academy-award-winning “Victor Victoria,” and many more. As the ACLU of Tennessee, on behalf of Elite Productions, explained to the town  in multiple letters, female and male impersonation is a form of artistic expression protected by the First Amendment. It is not inherently sexual or erotic in nature, so Elite Production’s drag shows cannot be regulated like an adult-oriented business. Nonetheless, the aldermen hired legal counsel at taxpayer expense to advance their quest. They drafted new language that again attempted to define male or female impersonation as inherently erotic in order to regulate it as adult entertainment. The new ordinance also added language about the “secondary effects” of adult-oriented businesses, such as an impact on property values in the area, to justify regulating drag performances. True adult-oriented businesses may indeed have secondary effects and courts have held that government can impose some reasonable restrictions on adult entertainment. However, Elite Productions’ shows are not erotic in nature. Not one of the studies cited by the board of aldermen connects the type of performance that Elite stages to any secondary effect that would justify such regulation. In fact, Portland’s own high school has a tradition of an annual “womanless beauty pageant” fundraiser in which male students dress in gowns and crowns. Portland’s American Cancer Society chapter has also held “womanless beauty pageants” in the past. There has been no evidence presented that any of these performances have increased crime or brought property values down. In the end, there was just no way around the First Amendment. The version of the ordinance that ultimately passed on Monday night mirrors the definition of “adult cabaret” found in Tennessee state law, which clarifies that adult cabarets are businesses that offer erotic entertainment with the performers exposing certain anatomical areas. Since those criteria do not apply to the Elite shows, our clients are free to perform without government interference. As the town’s aldermen learned, just because they don’t like a particular kind of speech does not give them the power to shut it down. [...]



Let Them Buy Cake

Wed, 22 Nov 2017 10:15 -0500

The fact that a business’s products may be expressive does not give it the right to discriminate.

This piece originally appeared at The New York Review of Books

When David Mullins and Charlie Craig walked into Masterpiece Cakeshop, a bakery in Denver, Colorado, five years ago, they had no inkling that the encounter would take them to the United States Supreme Court. All they wanted was a wedding cake. But as soon as Jack Phillips, the bakery’s owner, realized that the marriage they were celebrating was their own, he cut off the conversation, explaining that he would not make any cake for a same-sex wedding. They never even discussed what the cake would look like or say, because Phillips made it clear that his policy was absolute. The bakery has turned away several other same-sex couples on the same grounds, including a lesbian couple who wanted to buy cupcakes for a commitment ceremony. Phillips claims that because he objects to same-sex unions on religious grounds, and because his cakes are a form of expression, he has a First Amendment right to refuse to sell them to gay couples for their wedding receptions.

When they were turned away, Mullins and Craig brought a complaint before the Colorado Civil Rights Commission, which enforces the state’s public accommodations law. That law, which dates back to 1885, requires businesses open to the public to treat their customers equally. (Forty-five states have a similar law, as does the federal government.) Since 2008, Colorado has specifically prohibited businesses from discriminating against customers on the basis of sexual orientation, in addition to disability, race, creed, color, sex, marital status, national origin, and ancestry. The commission found that by selling wedding cakes to straight couples but refusing to sell them to gay couples, the bakery had violated the public accommodations law. The Colorado courts upheld that decision, rejecting the bakery’s First Amendment objections—as have courts hearing similar cases involving florists, banquet halls, photographers, and videographers. In June, however, despite the unanimity among the lower courts, the Supreme Court agreed to hear the bakery’s appeal.

To continue reading, "Let Them Buy Cake," click here




How a Racially Polarized New York School District Is Violating Voting Rights Law

Wed, 22 Nov 2017 10:00 -0500

In East Ramapo, a white voting bloc has taken control of the school board and shut out public school supporters. Even if your school district isn't as deeply troubled as the East Ramapo Central School District in the Lower Hudson Valley, it might very well be suffering from the same Voting Rights Act violation. East Ramapo is a racially diverse district -- a little less than half of the residents in the district are people of color -- but it has a very segregated school system. Ninety-six percent of the district's public school students are children of color, while 99 percent of its private school students are white. But because of a very common method of electing school board members, the entire East Ramapo Board of Education consists of candidates preferred by the district's white voters. The district uses at-large elections, which means that board members are elected by all the voters of the school district, rather than voters from individual geographic areas. Extreme racial polarization in the school system is reflected in racially-polarized voting in district elections. The white majority tends to vote as a bloc to support candidates who favor low taxes and high investment in private school services, while black and Latino voters tend to support candidates who favor investment in the public schools. As a result, candidates supporting the public schools and backed by minority voters have not won a contested election for a seat on the school board since 2007. Out of the past 33 elections for board seats, candidates supported by public school advocates have won only four contests -- and in each of those races, that candidate was unopposed. The upshot is that candidates preferred by communities of color can only win elections when the white voting bloc lets them win, effectively exercising a veto over any candidates. At-large elections, with racially-polarized voting, and segregated schools are common features in school districts nationwide. When these circumstances combine to deny racial minorities an equal opportunity to translate their voting strength into representation on the board of education, the Voting Rights Act may be violated. If this sounds like your community or one nearby, that's not surprising. Minorities are under-represented on school boards, city councils, and other local government bodies across the country. The electoral history of East Ramapo and its consequences for the district’s public school students are unusually stark. Only 22 percent of students in grades 3-8 are proficient in English, and only 19 percent are proficient in math. In 2016, Spring Valley High School and Ramapo High School had the lowest graduation rates and highest dropout rates of all public high schools in Rockland County, New York. The precipitous decline of East Ramapo’s public schools coincide with huge spending cuts resulting from the board's fiscal mismanagement of the district, which was once one of the academic crown jewels of New York State. A 2014 State Education Department report found that between 2009 and 2014, over 445 positions in the district were eliminated, including 200 teachers, as well as a raft of social workers, guidance counselors, and assistant principals among others. Full-day kindergarten was cut to a half-day, courses for English language learners were reduced, summer school was eliminated and athletics and extra-curricular activities were cut by more than half. Meanwhile, the board did not make any meaningful cuts to expensive services that disproportionately benefit private school students, including busing without mileage limitations (state law does not require busing for students who live less than 2 miles from school) and gender-segregated busing. The state has put monitors in the district since 2014 and also appropriated supplemental funds to restore some of the cuts, but many cuts have yet to be restored, and future funding is uncertain. Regardless of the state's involvement, minority voters are entitled to[...]



A Privacy Case Before the Supreme Court Is About Press Freedom, Too

Tue, 21 Nov 2017 16:15 -0500

If the government can access cellphone location records without a warrant, journalism suffers. So does democracy. For today’s journalists, cellphones are mobile newsrooms that go where a reporter goes. They’re used to contact sources, record interviews, write notes and articles, take photos and videos, share work on social media, follow breaking news, and more. So when the government can access — without a warrant — cellphone location records that could be used to reconstruct a person’s movements over time, it not only infringes upon the public’s Fourth Amendment right to privacy, but also threatens reporters’ ability to maintain the confidentiality of their sources and gather the news without being surveilled. That’s why the Reporters Committee for Freedom of the Press and 19 other media organizations are urging the Supreme Court of the United States to overturn an appeals court ruling in Carpenter v. United States and require the government to obtain a warrant to acquire cellphone location data. On the surface, Carpenter, which the Supreme Court will hear next week, is a Fourth Amendment privacy case about whether law enforcement should be granted warrantless access to records showing where a cellphone has traveled. But when the records sought are those of a journalist, this practice threatens First Amendment freedoms, too. If the court accepts the government’s argument in Carpenter, this would make it easier for the government to obtain cellphone location records and track where reporters have traveled. This, in turn, can reveal reporters’ newsgathering processes and sources. For example, a journalist’s visits to a government building could indicate that she is working on a piece about a specific agency. This could put the agency on alert and make it more difficult to gather necessary facts. For reporters, leaving a cellphone behind to avoid this scenario is not an option — doing so would hinder their ability to effectively report a story. Additionally, location data that places a reporter and her anonymous source in the same place over several hours, days, or even months before a story based on anonymous sourcing is published could expose the identity of the source. Confidentiality is key to reporter-source relationships, and effective newsgathering — especially for investigative reporting — depends on communicating confidentially with sources who wish to remain anonymous. Good reporters know that unmasking an anonymous source can have serious repercussions and put jobs and lives at risk, so they go to great lengths to protect sources. Given the many other forms of electronic surveillance at the government’s disposal, reporters widely consider in-person meetings to be the most secure form of communication with sources. Location tracking imperils this kind of communication and leaves the journalist with no adequate alternatives. It is not an overstatement to say that maintaining reporter-source confidentiality is critical to democracy. Despite skepticism from some toward anonymously sourced reporting — seen in comments by the president and accusations of “fake news” levied against legitimate news organizations — the fact remains that many groundbreaking stories about the U.S. government have depended on anonymous sources. Without anonymous sources, the public may have never learned about the Watergate scandal, the CIA’s use of secret prisons for terrorism suspects, the NSA’s illegal wiretapping program and, more recently, foreign threats to the 2016 presidential election. Although best practices call on journalists to identify sources whenever possible, anonymous sourcing can be a necessary feature of the most hard-hitting journalism. This link between the First and Fourth Amendments is not new. The Fourth Amendment arose in the colonial era in response to English practices targeting printers and publishers of dissenting papers. In two famous English cases in the mid[...]



Police Assault on Black Students in Kentucky Sparks Calls for Reform

Tue, 21 Nov 2017 15:15 -0500

Police in schools criminalize students and don’t make anyone safer. They’ve got to go. Families in Louisville, Kentucky, are rightly calling for an end to police in schools following the recent assault on two Black students perpetrated by law enforcement at a local high school that was caught on camera. Before the video begins, two students at Jeffersontown High School were said to have been in a fight over a pair of headphones when a police officer intervened. He reportedly called for additional officers after being attacked by the student. The video clip shows three police officers on top of a teenager. One officer presses the teen’s head into the linoleum floor while another holds his legs, and the third can be seen kicking him multiple times. As students look on, some crying out for the police to stop, an officer waves what appears to be a stun gun at the onlookers. The stun gun had reportedly been used on the detained student. As the video comes to an end, someone can be heard telling the student to turn off the recording. Outrage at the incident started within the community and was then shared widely on social media after activists posted video of the disturbing incident on Twitter. This assault on students of color at a high school by police represents the latest evidence that police do not belong in our schools. Videos have allowed the public to witness the reality of police conduct behind school doors — and to see that all too often it takes the form of misconduct and assault. Sadly, the brutality at Jeffersontown High School is not an isolated incident or a new phenomenon. To the contrary, police have a longstanding history of using force against students who went to class for an education but instead received a harsh lesson on racial injustice and police brutality. This history includes incidents leading to ACLU lawsuits. In 2015, the ACLU sued the Kenton County Kentucky Sheriff’s Office after video captured officers shackling elementary school students with disabilities. The same year, video captured a school police officer violently assaulting a student at Spring Valley High School in South Carolina — an incident at issue in another ACLU lawsuit. Following these incidents, the Advancement Project searched for similar incidents and recorded 20 such assaults since 2015. Recently, the ACLU identified 141 public complaints of police use of force in schools from 2014 to 2016. When police are placed in schools, as the ACLU of Kentucky recognizes, “they are looking at everything through a police-first lens, so they are looking at every minor infraction or any incident as a crime first." As the saying goes, if you’re a hammer, everything looks like a nail. Police see perpetrators, and that includes students.And just as with adults, there are racial and disability disparities in the way police engage in enforcement in schools. Accordingly, students of color, students with disabilities, and students of color with disabilitiesare more likely to be funneled into the criminal justice system for behavior that may warrant supportive interventions or a trip to the principal’s office, not a criminal record. And this has grave consequences for students’ futures. Youth who are criminalized by police in schools are more likely to drop out of school and to be sucked back into the maze of the criminal justice system as adults. In this way, the school-to-prison pipeline, the practice of funneling children from school into the criminal justice system, undermines the goals of education and can derail a young person for life. But communities and educators are demanding change and the removal of police from schools. Following this latest incident, the Louisville community has called for an end to the district’s contract with the police department. Community leader Barbara Boyd reflected, “We send our kids to school to become useful citizens, not to be controlled through brute[...]



The Justice Department Continues to Roll Back Civil Rights Protections

Mon, 20 Nov 2017 15:45 -0500

In a speech on Friday, the attorney general signaled that he will rescind more civil rights guidance from the Obama era. On Friday, Attorney General Jeff Sessions strongly hinted that he isn’t done trying to roll back the civil rights gains made during the Obama administration. In a speech before the conservative Federalist Society's National Lawyers Convention, Sessions described an internal Justice Department memo he signed prohibiting his department from issuing “improper” guidance documents. According to the document, “Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments). The document also stated the Justice Department will no longer issue guidance that “effectively bind private parties without undergoing the rulemaking process.” Behind this bureaucratic language is an attack on the civil rights legacy of the Obama-era Justice Department. Throughout the Obama administration, the Department of Justice worked with state and local governments to protect civil rights and liberties by suggesting practical ways, for example, to eliminate gender bias in policing, legally enforce fines and fees, and dismantle the school to prison pipeline. Sessions has indicated that he may “repeal and replace” these policies, which will roll back important efforts to ensure equal protection for all under the law.Sessions’ repudiation of the Obama-era guidances isn’t shocking. After his confirmation, Sessions quickly rescinded Obama-era guidances on issues such as federal contracts with private prisons, federal prosecutors abusing their discretion in drug cases, and treatment of transgender students. Put simply: Expect more rescissions of Obama-era guidance. Here are the ones we believe are in Sessions’ crosshairs. Racial profiling The ACLU worked for many years with the Obama administration to issue new guidance to curb racial profiling by law enforcement agencies. That guidance, announced in 2014, addressed the use of other characteristics as well, including national origin, gender, gender identity, religion, and sexual orientation. Although it was a step in right direction, it did not fully respond to the crisis of racial profiling in America. Now, even this modest guidance is in jeopardy. Gender-biased policing With advocacy from the ACLU’s Women’s Rights Project, the Obama administration made significant strides in helping state and local law enforcement agencies address gender bias in their response to sexual assault and domestic violence. A Justice Department guidance issued in 2015 highlighted the need for clear policies, robust training, and responsive accountability systems so that women and men will not end up like our client Jessica Lenahan.Jessica’s estranged husband, Simon Gonzales, kidnapped their three daughters from the front yard in Castle Rock, Colorado, in violation of a domestic violence order of protection. Jessica called and met with the police numerous times in the immediate hours after the kidnapping, but they told her to call back later if the children hadn’t come home. Early the next morning, Simon drove up to the police station and started shooting. The police fired back, killing him and later discovered Jessica’ three daughters dead in the cab of his truck. This work to advise local police departments on how to improve domestic violence investigations, treatment of survivors, and accountability for officers who commit domestic violence and sexual assault may no longer be supported by Sessions’ Justice Department. Fines and fees After the death of Michael Brown in Ferguson, Missouri, the Justice Department launched a six-month investigation and found a “pattern or practice” of police misconduct in Ferguson that violated the First, Fourth, [...]



Remembrance Brings Trans History to Life

Mon, 20 Nov 2017 15:30 -0500

On this Transgender Day of Remembrance, take time to reflect on the rich history of trans resistance.

Every year, the transgender, gender nonconforming, and non-binary communities come together on November 20 to remember and honor lives lost to anti-trans violence.

Each year, the number of deaths increases.

Each year, it is mostly brown and Black trans women and femmes who are taken from us.

Transgender Day of Remembrance has historically focused on the stories of those killed in individually-perpetrated violence — the kind of violence in which the attacker can be prosecuted. This is the type of violence that even Jeff Sessions can condemn. But as we watch so many in the trans community suffer and die from homelessness, family rejection, incarceration, unemployment, and suicide, remembrance should reverberate across the stories of deaths less often told.

Our community remembers not only the young Black women killed in the street, but also the young students lost to suicide, the incarcerated bodies cut off from health care, the elders struggling to maintain their housing and preserve their histories, the many lost from neglect in a society unwilling to include, serve, and abide us.

While Transgender Day of Remembrance is a day for grief, it can also be a day to reflect on the rich history of trans resistance, a history that lives on in our storytelling and in the hearts of trans elders who witnessed that history.

One of these elders, Flawless Sabrina, died early Saturday morning. Mother Flawless was an iconic drag queen and guide to generations of young LGBTQ people, many of whom found family and purpose in the bright path of her life and safe shelter in her apartment on Manhattan’s East Side.

Unlike so many we mourn today, Flawless lived 78 full years. She saw, inspired, and lifted up LGBTQ people around the world. She cried for those lost and devoted her life and soul to this community and taught so many of us to hold fast to our truths.

“Life is a learning situation...,” Flawless once recounted in an interview. “I think my grandmother was right, in that you can walk down Madison Avenue with a cow on your head if you do it with confidence. Accentuate the positive, illuminate the negative, and don’t mess with mystery in between. You’re the boss applesauce, believe in yourself without question.”

In memory of Flawless and many others now gone, remembrance can be a step toward building a future from the paths they illuminated.




What the Founders Would Say About Cellphone Surveillance

Fri, 17 Nov 2017 13:45 -0500

Government cell phone tracking clearly jeopardizes the security of the people against unreasonable searches and seizures. On Nov. 29, the Supreme Court will hear oral argument in an important case called Carpenter v. United States. Although the question in the case may feel very modern — whether government agents can obtain the location data generated by cellphones without a warrant — history can tell us a lot about how the court should answer that question. The Fourth Amendment of the U.S. Constitution guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The amendment arose from the Founders’ concern that the newly constituted federal government would try to expand its powers and undermine rights that were guaranteed to Americans by the common law and their state constitutions. Based on experience, they knew that equipping government officers with unfettered discretion to search and seize would be a formidable means of oppressing “the people.” Prior to the American Revolution, British subjects in the colonies and in England had lived with threats posed by “general warrants.” Unlike contemporary search warrants — which require probable cause, judicial approval, and limits on the place to be searched and the things to be seized — general warrants gave government agents license to search wherever they pleased, no matter their reasons, with impunity. And because the king’s ministers could issue general warrants on their own authority, these devices also opened the door to unchecked executive power. This, of course, was a recipe for abuse.Under the authority of general warrants, the king’s agents used the power to search and seize as a tool of oppression, targeting disfavored religious minorities and political opponents, such as those who published pamphlets criticizing the government. Some even used their powers to settle personal vendettas. In a series of mid-18th-century cases, courts in England put a stop to this madness, holding that general warrants violated basic principles of English law and were therefore unreasonable. These courts stressed that the very existence of general warrants made everyone vulnerable to the threat of unreasonable searches and seizures. For example, one influential decision condemned general warrants as “totally subversive of the liberty of the subject” because they gave officers “a discretionary power … to search wherever their suspicions may chance to fall.” Another warned that “the secret cabinets and bureaus of every subject in this kingdom will be thrown open” if general warrants were not forbidden. Across the Atlantic, James Otis, the Boston lawyer who popularized the slogan “taxation without representation is tyranny,” denounced general warrants, which British authorities were increasingly using to find smuggled goods on which taxes had not been paid. In a legendary speech, he derided them as “the worst instrument of arbitrary power,” which placed “the liberty of every man in the hands of every petty officer.” John Adams later called Otis’s speech “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” The Founders recognized that giving the state arbitrary search power harms “the people” in ways that go beyond the indignity of specific trespasses. After splitting from Britain, many states adopted constitutions that guarded against oppressive searches and seizures, and the Fourth Amendment was later modeled on those protections. Read in this historical context, the Fourth Amendment is aimed at denying executive agents the unfettered discretion to conduct searches because of the pervasive insecurity that such di[...]



Too Old and Too Sick to Execute? No Such Thing in Ohio.

Fri, 17 Nov 2017 13:45 -0500

Ohio’s bungled execution of an elderly man shows that the death penalty is broken and barbaric. The famous appellate judge Richard Posner once wrote, “A civilized society locks up [criminals] until age makes them harmless, but it does not keep them in prison until they die.” The state of Ohio apparently hasn’t heard of Judge Posner, as they went one step further and tried to execute an elderly Alva Campbell and failed. Ohio’s lethal injection team spent more than 30 minutes poking Alva Campbell’s decrepit body in search of any decent vein into which they could inject their lethal cocktail to no avail. They finally relented — but only temporarily. Hours later, Gov. John Kasich announced not a commutation — or a plan to investigate what went wrong — but that Campbell’s execution would be rescheduled for 2019. It’s a travesty of justice that Ohio’s bungled attempt at executing Alva Campbell was both predictable and avoidable. Campbell’s attorneys had in fact informed the governor and courts that their client’s abysmal health made him a uniquely poor candidate for lethal injection. Campbell has severe chronic obstructive pulmonary disorder, uses a walker, relies on an external colostomy bag, requires four breathing treatments a day, and may have lung cancer. In a medical examination of Campbell before the execution attempt, doctors failed to “find veins suitable for inserting an IV on either of Campbell’s arms.” Ohio’s only answer to the concerns of Campbell’s lawyers was to give Campbell a “wedged shape pillow” to keep him slightly upright through the execution. It was predictable and avoidable not only because of information furnished to the state by the defense, but because Ohio had already committed a similar bungle in 2009 when it failed to find a suitable vein to execute Rommell Broom after sticking him with needles for over two hours. The ability to find a suitable vein is basic to lethal injection. When it cannot be done — because of lack of training and qualifications of the lethal-injection team or the health of the prisoner — the process becomes impossible and the risk of a failure or botch undeniable. Ohio has earned its execution infamy over time.The state’s lethal-injection team’s inability to find a suitable vein led to the botched execution of Joseph Clark in 2006, who raised his head from the gurney during the execution to say, “It don’t work. It don’t work.” Ohio persisted, working for another 30 minutes to find another vein before resuming the execution. Media witnesses heard “moaning, crying, and guttural noises” before the deed was finally done 90 minutes after it had begun. The botched two-hour execution of Christopher Newton in 2007 also stemmed from the execution team’s inability to access a suitable vein. The state’s botched execution of Dennis McGuire in 2014 has been attributed to the use of midazolam — great if you need a sedative for a medical procedure but unsuitable for executions. The takeaway should be clear. Ohio cannot be trusted to use the death penalty, as time and time again the state fails and causes needless pain and unconstitutional torture. But Ohio is forging ahead. The state’s schedule of more than two dozen lethal-injections through 2022 gives Ohio the dubious distinction of maintaining the longest list of upcoming executions in the nation. A second attempt to take Campbell’s life is now set for 2019, while Rommell Broom’s new date is in 2020. Last year, a divided Ohio Supreme Court ruled that Ohio could attempt to execute Broom, yet again, over a powerful dissent pointing out that the U.S. Supreme Court more than a century ago made clear that executions involving “torture or lingering death” would violate the Eighth Amendment. With its record of three bo[...]