Did the Execution of Cecil Clayton Violate the 8th Amendment?

Cecil Clayton, 74, was killed by lethal injection Tuesday night at a Missouri prison. He was convicted of murdering a police officer in 1996, and was given the death penalty by the jury. This case may seem like a typical “murderer gets put on death row” scenario, but Clayton is an exception. It’s possible the Missouri Supreme Court violated his fundamental right of protection from cruel and unusual punishment due to his mental condition.

Cecil Clayton ExecutedIn 1972, when Clayton was 32, he suffered from an extremely serious work accident. He was working on a sawmill when a piece of wood shot out and impaled him in his skull. In order for the doctors to remove the piece of wood, they also had to remove 20% of his brain. The part they extracted was from the frontal lobe, which controls impulse control, basic judgment, memory, social behavior, and other important function.

Before the accident, Clayton was a happy, sober, married man, who was a hard worker with a clean record. After the accident, he was diagnosed with chronic brain syndrome, paranoia, schizophrenia, and depression.

Last month, a psychiatrist evaluated Clayton and deemed him incompetent to be eligible for execution due to his mental state. His lawyers made many attempts to halt the execution, even bringing the case to the Supreme Court. But in a 4 to 3 vote, the Missouri Supreme Court ruled that Clayton did not meet the requirements to be considered incompetent and therefore an execution was lawful.

According to the Eighth Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. In 2002, the case Atkins v Virginia determined that death to a mentally disabled person was unconstitutional. Executing an inmate who is intellectually disabled directly violates the Eighth Amendment. An inmate must be aware of their impending death, and fully understand why they are being executed.

Clayton was neither aware nor understood. He not only suffers from the mental illnesses described above, but he is also intellectually disabled; having an IQ of only 71. This qualifies Clayton as mentally disabled and he should not have been executed due to his fundamental protection from cruel and unusual punishment.

Oklahoma’s Fraternity Scandal and the First Amendment

A recent video of members of the University Of Oklahoma fraternity Sigma Alpha Epsilon (SAE) chanting racial slurs has recently exploded on the media throughout the country. The chants were not only undisputedly racist, but especially violent in nature. Specifically they chanted “There will never be a ni**** SAE. You can hang him from a tree, but he can never sign with me.”

oklahoma racism scandalThe University of Oklahoma promptly expelled both students who appeared to be leading the chant in the video. Parker Rice, a 19 year old freshman coming right from Jesuit College Preparatory School was the leader of the chant. Another student, Levi Pettit, was also expelled. Both families have apologized profusely. However, Rice is the only involved student who personally apologized.

Were the Students Protected by the First Amendment?

As shocking as this story is, there are several First Amendment Rights that come into question. Were these boys exercising their First Amendment right to free speech? And if so, was the speech protected and therefore not subjected to any legal action, including expulsion from a public university?

A potential lawsuit has been threatened by SAE against the University of Oklahoma for expelling the students. SAE contends that the two students’ immediate expulsion “runs contrary to due process” and that the university has no right to censor speech, despite its hateful content. Other organizations have joined the bandwagon to “protect” the students’ First Amendment rights, including The Foundation for Individual Rights in Education, which is a civil liberties nonprofit. This organization has stated that, as a public university, the University of Oklahoma has no right to punish students solely because of offensive speech.

The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” However, if it does not meet this test, the speech is protected under the First Amendment. For example, the Supreme Court struck down a criminal conviction of the white supremacy group, the Ku Klux Klan, for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence. One could argue the same for the SAE incident which occurred on a bus full of only SAE kids who mostly shared the same views. Additionally, the factors which would be taken into consideration by a court, when deciding whether the speech was intended to incite violence, are that the video was only seconds long and privately recorded. The ruling essentially does not criminalize “mere advocacy.”

Hate speech is actually protected by the Constitution despite being offensive. If the speech is chanted in a private space, as in this incident, amongst people of similar views, it is protected. However, if directed toward African Americans, then if it was extreme enough to incite violence or imminent lawless action, then there would be no constitutional protection. However, the view of courts that have considered campus speech codes and other campus speech restrictions to be subject to first amendment protections. This is also true for fraternity speech, racist or not.

Unfortunately, the critics of the expulsion are legally correct. The students did have a right to free speech in the context in which they expressed it and, although there is an exception for “inciting violence” according to the legal standard, it likely would not apply to this busload of ignorant, drunk, privileged, white college students. Therefore, the public university likely did not have the legal right to expel them. It cannot punish the fraternity members solely for the content of their expression. With that said, both students would have be wise to leave on their own.

Will Racism Ever Stop Plaguing America?

America likes to think as a whole that we are past racism because overt acts such as these are abhorred by the majority. However, this story clearly shows that racism is still present in our society.

I have noticed that in the last few days the Oklahoma story has digressed from the racist video portrayal to the story of the poor frat boys whose lives are ruined. The media will always frame things the way they choose, which is often influenced by the pressure of institutions. But the community’s voice should always remain on point. In this case, it should be emphasized that the student’s actions were clearly wrong and highly offensive, regardless of whether or not First Amendment protections apply.

Obama Proposes Relaxing Bankruptcy Restrictions for Student Debt

For more than a decade, bankruptcy was not really an option for student debt. Back in 1998, government loans to students were rendered non-dischargeable unless paying off the loans would be a severe hardship for the student. In 2005, private student loans were also rendered non-dischargeable absent a severe hardship. In 2015, President Obama has decided to make student loans the last major policy change of his presidency.

student loan debt bankruptcyLast week, the White House rolled out a plan called “A Student Aid Bill of Rights.” The bill has four parts: (1) a state-of-the-art complaint system to ensure quality service and accountability for the Department of Education, its contractors, and colleges, (2) a series of steps to help students responsibly repay their loans including help setting affordable monthly payments, (3) creation of affordable repayment plans based on student debt trends, and (4) every borrower has the right to quality customer service, reliable information, and fair treatment, even if they struggle to repay their loans. 

The White House’s “bill of rights” mostly talks about consumer protection for repayment of debts. The language of the proposed student bill of rights mirrors the stated goals of mortgage reform after the 2008 housing crisis. Mortgage reform focused on bank honesty and mortgage accuracy rather than homeowner forgiveness. Congress is also in the hands of the Republican Party and there’s no way on earth that the Republicans would simply forgive a majority of student debt. Assuming President Obama is actually serious about passing student loan reform and not just trying to frame the debate for the 2016 elections, than loan repayment has to be the agenda.

I highly doubt that making student loans dischargeable through bankruptcy would actually result in more student loans being discharged. The reason is simple and it’s not merely politics: the federal government holds 90% of all student loans, which amounts to $1 trillion of the $1.2 trillion dollar student debt in the United States! Since $1 trillion is too much money even for Washington D.C. to throw away, the goal of all this student loan reform must be loan repayment rather than loan forgiveness.

Bankruptcy Helps Both Creditors and Debtors

So how would discharging student loans help students repay student loans? Since the current restrictions on student loan discharge are rather harsh, few student loan debtors file for bankruptcy. Fewer than 1,000 people every year try to discharge their loans through bankruptcy.

This is unfortunate because bankruptcy is not solely for debtors. Don’t get me wrong, the main purpose of bankruptcy is to give honest debtors a fresh start. However, bankruptcy judges don’t discharge debts for free. Debtors either have to sell their assets or restructure their debts. Either way, debtors have to repay as much of their debt as they can afford before the bankruptcy court will discharge their debts.

In other words, some creditors might actually get paid during bankruptcy. Many people believe that a debtor repays all their debts or the debtor files for bankruptcy and pays nothing. The reality is that if a debtor is struggling to repay loans, the creditors might not be repaid even if the debtor doesn’t file for bankruptcy. It’s a better deal for creditors to receive half of what they are owed in bankruptcy rather than receive nothing outside of bankruptcy.

Making student loans dischargeable through bankruptcy probably wouldn’t automatically result in more student loans being discharged. The best way to guarantee that student debts aren’t simply erased without repayment is to give student loan creditors a higher priority in creditor repayment. If student loan creditors are first in line, than student loan creditors will be repaid before the debtor’s assets or income runs out.

Even if student loan creditors aren’t given a high priority in repayment, student loan creditors might still get repaid. Bankruptcy is expensive for everybody involved. Bankruptcy courts, like must civil courts, would prefer that cases be settled before they get to the court room. Since student loans were non-dischargeable, student loan creditors had very little incentive to actually talk with debtors other than ask for the money owed.

If student loans were dischargeable, the federal government might actually have to talk to, and negotiate with, student debtors. If private banks are required to negotiate with debtors about their debt, we should expect the federal government to do the same.

Will Robert Durst Finally Go to Prison?

Robert Durst, subject of HBO’S The Jinx and heir to one of New York City’s wealthiest real estate families, has been arrested for multiple murders. Durst, 71, allegedly killed his former wife in 1982, Susan Berman in 2000, and Morris Black in 2001.

robert durstThe arrest came just one day before the series finale of the documentary, in which audio is played of Durst seemingly confessing to the crime. After he was shown two letters that revealed evidence linked to the crimes by director Andrew Jarecki, he took a bathroom break in which he still had the microphone attached to him. While in the bathroom, Durst is heard on the audio saying, “There it is. You’re caught…what the hell did I do? Killed them all, of course.”

This seems like pretty damning evidence. But, many questions concerning the audio’s legitimacy to use as evidence arise.

First, the question of reasonable expectation of privacy comes up. Did Durst know he was being recorded while in the bathroom? If he expected privacy, when one usually does when in the bathroom, could the evidence by deemed as faulty? Most likely, this reasoning will not be upheld in court. Durst was well aware he was wearing a microphone, and did not request for it to be taken off before going into the restroom.

A second defense Durst could use is that the film crew for the HBO series acted as agents of law enforcement, therefore violating the Fourth Amendment’s restrictions on proper search and seizure procedures. Jarecki said he handed over the audio evidence of Durst to authorities months ago. The arrest did come suspiciously close to the series finale that showcased his supposed confession though. But, any type of evidence found by citizens and handed over to authorities may be used as liable evidence. Therefore, this argument will not work either.

A third question comes up. The audio recording of Durst occurred in April 2012. Jarecki and his team did not find the recording until June 2014. Who knows if Jarecki is telling the truth. In a two year time period, the audio could have been tampered with or altered. Although not likely, the court could find the recording insufficient because of the amount of time the recording was in Jarecki’s hands.

A final and fourth possible defense is uncovered. The recording could be perceived as a type of monologue. Durst could have been fantasizing, or wondering out loud what he will say to the camera. These do not count as confessions, and in turn could be a valid defense for Durst’s legal team. But again, this argument is rather unlikely to succeed in court.

The written evidence and audio recording will absolutely be used in court to finally land Durst in jail. He has been escaping the law ever since 1982, and it’s about time he’s put in prison for good.

Fan Made Power Rangers Film Shows the Limit of Copyright Law

power rangers fan film and copyright law

Anybody remember the Power Rangers?

Power Rangers was one of the biggest children’s shows during the 1990s. The popular franchise was about a group of teens who protected the earth from alien invaders. Although Saban Brands had licensed footage from Super Sentai, a popular Japanese show, Power Rangers created original material to attract an American audience. The show was a huge hit and it continues its popularity even today. With over twenty seasons, Power Rangers is one of the most profitable children’s franchises ever made.

Although Power Rangers is primarily a children’s show, it has adult fans. One of those fans is Joseph Kahn, a long-time music video director. Kahn recently tried to pay homage to Power Rangers by creating an R-rated short film version.

Kahn’s vision of Power Rangers depicts the original teens as adults who suffer from PTSD.  The film uses professional actors including James Van Der Beek and Katee Sackhoff. The tone is dramatically darker, with sex, drugs, and guns prominently featured. Kahn uploaded his film onto YouTube and Vimeo, where you can view the short film here.

Kahn’s R-Rated Power Rangers quickly gained Internet press. Saban Brands condemned the short film as a violation of its copyright. Response from the cast of Power Rangers was mixed; some of the actors thought the short was well-made while other cast members cringed as Kahn’s film drifted from the children friendly atmosphere of the franchise. YouTube and Vimeo removed the short film at Saban Brands request.

After Internet outrage and Kahn’s insistence that his film was fair use, Saban Brands negotiated an agreement with Kahn. The short film is back online, but it now comes with a warning that the video is not connected to Power Rangers and is intended for a mature audience.

Fan Fiction That Adopts Too Much of the Original Violates Copyright

Internet users largely supported Joseph Kahn, calling the copyright restrictions a violation of Kahn’s free speech rights. Kahn himself defended the film as an exercise of fair use. Although Kahn and Saban Brands have already settled, the dispute has raised questions about professional directors and actors making fan fiction of copyrighted works.

First, Kahn doesn’t have a free speech defense to alleged copyright violations. The Constitution is only a restriction on government action. Private companies are not bound by the First Amendment and Saban Brands, YouTube, and Vimeo are certainly private entities. Kahn doesn’t have a right to advertise his R-Rated Power Rangers film more than Saban Brands has a right to protect the image of their copyright franchise.

Since it’s established that Kahn doesn’t have a protected free speech right here, we only have to determine whether Kahn’s R-Rated Power Rangers was a fair use of Saban Brand’s property. The fair use question involves balancing a number of different factors, including the purpose and character of the work, the proportion of the use of the copyrighted material, economical impact, and the intent and motive of the defendant.

On one hand, the short film is very distinct from Saban Brands in tone. The film is extremely dark and gritty, with the characters suffering from PTSD, where the Power Rangers were always light and family orientated (if you ignore the violence). All the material in the film is original. Kahn produced all the scenes on his own, without any footage from Saban Brand. Kahn hasn’t outright taken any work from Saban Brands; the only issue is the use of the characters and the brand name.

However, a reasonable person could believe Kahn’s film was a product of Saban Brands based on the character of the short film, even though the tone is dramatically different. The film uses the same characters and costumes. The short film was produced by a professional director and cast by professional actors. Kahn’s work preserves some of the cheesiness of the franchise, including the over-the-top acting. Although the acting is over the top, the film takes itself very seriously. It’s difficult to classify the work as a parody. All these facts could lead a person, without any background knowledge, to believe the Kahn’s work was intended to be a continuity and thus a reproduction of the original Power Rangers.

The Reality of Our Legal System

I just went through a rather long drawn out discussion about fair use, but Saban Brands and Kahn have already settled their dispute. This case never went to court. It’s important to note that one of the factors was intent and motive of the defendant. A prolonged court battle would have damaged Kahn’s reputation with producers. A protracted court battle would have drained Saban Brand’s resources.

The reality of our civil legal system is that trial is rarely the correct answer. Although lawsuits are always being filed, most of them never make it before a jury. It’s ironic that a dispute over a franchise that portrays violence to children is ended merely by talking things out.