The Dreadful Failure of Lethal Injection

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on the decomposition of the legal injection paradigm over the past few decades, since it was first adopted in Oklahoma in 1999. Professor Sarat observes the evolution of the procedure over time and points out that none of the changes has resolved lethal injection’s fate or repaired its vexing problems.

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Let’s Talk About Sex, Baby: State Representative Ana-Maria Ramos Introduces Bill to Repeal Parental Consent Requirement for Birth Control

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on a Texas bill that would allow teens to access birth control without parental involvement. Professor Grossman describes the current state of reproductive health laws and policies in Texas and explains why the proposed bill is so important.

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Atkins v. CB&I, LLC

Docket: 20-30004

Opinion Date: March 22, 2021

Judge: Gregg Costa

Areas of Law: Civil Procedure, ERISA, Labor & Employment Law

Plaintiffs, five former employees of CB&I who worked as laborers on a construction project in Louisiana, quit before the project ended and thus made them ineligible to receive the Project Completion Incentive under the term of that plan. Plaintiffs filed suit in state court seeking the bonus for the period they did work, arguing that making such employees ineligible for bonuses amounts to an illegal wage forfeiture agreement under the Louisiana Wage Payment Act. LA. STAT.ANN. 23:631, 23:632, 23:634. After removal to federal court, the district court concluded that the incentive program was an Employee Retirement Income Security Act (ERISA) plan because it required ongoing discretion and administration in determining whether a qualifying termination took place. The Fifth Circuit concluded that the employee benefit at issue—a bonus for completing the project—is not an employee benefit plan under ERISA. The court explained that the plan involves a single and simple payment; determining eligibility might require the exercise of some discretion, but not much; and the plan lacks the complexity and longevity that result in the type of "ongoing administrative scheme" ERISA covers. Therefore, there is no federal jurisdiction over this action. The court vacated and remanded for the case to be returned to state court.

Newbury v. City of Windcrest

Docket: 20-50067

Opinion Date: March 22, 2021

Judge: Jerry E. Smith

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

The Fifth Circuit affirmed the district court's grant of summary judgment in favor of defendants in an action brought by plaintiff, a former police officer, alleging claims of sex discrimination, retaliation, and constructive discharge under Title VII and Texas law, as well as a 42 U.S.C. 1983 claim and a claim for intentional infliction of emotional distress. In this case, plaintiff worked as an officer for the Windcrest Police Department but resigned during her first, probationary year. In this same-sex sexual harassment case, the court conducted a two-step inquiry pursuant to E.E.O.C. v. Boh Brothers Constr. Co., 731 F.3d 444, 453 (5th Cir. 2013) (en banc). The court concluded that plaintiff's claim failed at the first prong of the inquiry where the alleged conduct was not sex discrimination. The court explained that plaintiff did not allege that another officer's conduct was motivated by sexual desire nor does plaintiff otherwise contend that the conduct was sexual in nature or a display of explicit sexual animus. As for plaintiff's contention that the other officer treated women worse than men, these allegations are highly speculative. Therefore, the district court properly granted summary judgment on the sex discrimination claim. The court also concluded that plaintiff's constructive discharge, retaliation, and sex discrimination claims also failed. In regard to the section 1983 claim, the court rejected plaintiff's contention that the city violated her privacy by surreptitiously activating her police body camera when she was off duty and filming her inside her apartment. The court explained that plaintiff failed to present any evidence showing that the city has a policy or practice of furtively recording employees off duty, even if she was recorded remotely.

Alejos-Perez v. Garland

Docket: 19-60256

Opinion Date: March 22, 2021

Judge: Jerry E. Smith

Areas of Law: Criminal Law, Immigration Law

The Fifth Circuit granted a petition for review of the BIA's decision upholding the IJ's conclusion that one of petitioner's three convictions rendered petitioner removeable. At issue is petitioner's 2018 conviction for knowingly possessing a controlled substance listed in Penalty Group 2-A, in violation of Texas Health & Safety Code 481.1161(a). In this case petitioner possessed MMB-Fubinaca, which, he agrees, is a federally controlled substance. However, Penalty Group 2-A also includes at least one substance that is not federally controlled. The court concluded that petitioner's 2018 conviction did not render him removeable under 8 U.S.C. 1227(a)(2)(B)(i). The court explained that the government failed to show that Penalty Group 2-A is divisible. Applying the categorical approach, the court concluded that Penalty Group 2-A is broader than the federal statute, and "there is no categorical match" between Penalty Group 2-A and its federal counterpart. Here, the parties agree that Penalty Group 2-A criminalizes possession of at least one substance—naphthoylindane—that the federal statute does not mention. The panel declined to terminate petitioner's removal proceedings. Instead, the court remanded for consideration of whether petitioner has shown a realistic probability that Texas would prosecute conduct that falls outside the relevant federal statute. The panel also remanded for consideration of whether petitioner's 2009 and 2013 convictions render him removable, in the event that petitioner succeeds on the realistic-probability inquiry.

United States v. Brune

Docket: 19-11360

Opinion Date: March 22, 2021

Judge: Jerry E. Smith

Areas of Law: Criminal Law

Defendant was charged with conspiracy to violate 21 U.S.C. 841(a)(l) and (b)(l)(C), namely to possess with intent to distribute a mixture and substance containing more than 50 grams of methamphetamine. However, the information cited the wrong part of section 841(b)(1): Subparagraph B—not C—criminalizes possession of a substance containing more than 50 grams of meth. In this case, the parties agree that subparagraph C is a lesser-included offense of subparagraph B. Despite that initial error and without any plea agreement, defendant pleaded guilty to subparagraph B, referencing it nine times. The Fifth Circuit concluded that jeopardy does not always attach upon acceptance of a guilty plea; explained the framework for analyzing attachment under Ohio v. Johnson, 467 U.S. 493 (1984); and concluded that there was no double jeopardy violation in this case. The court explained that Johnson abrogated United States v. Sanchez's, 609 F.2d 761, 762 (5th Cir. 1980), statement about attachment; defendant's counterarguments are not persuasive; and the rule of orderliness does not preclude that conclusion. Furthermore, defendant's finality interest is low and there is no evidence of prosecutorial overreach. Therefore, jeopardy did not attach upon the district court's acceptance of defendant's guilty plea and there is no violation. Finally, the court concluded that the district court did not clearly err in applying a sentencing enhancement under USSG 2D1.1(b)(5) for an offense involving the importation of methamphetamine.