Sunday, June 16, 2019

For Criminal Justice Reform, Go Local

      Voters in two suburban counties outside Washington, D.C., joined the growing criminal justice reform movement last week [June 11] by ousting two longtime prosecutors in favor of candidates who promised if elected to make fundamental changes in prosecutorial policies. Subject to Virginia's off-year general elections in November, Parisa Dehghani-Tafti and Steve Descano will join the growing number of criminal justice reformers elected around the nation as local prosecutors, notably in such major metropolitan areas as Chicago, Philadelphia, and Orlando, Fla.
      Dehghani-Tafti, a former public defender who had worked on exoneration cases for the Mid-Atlantic Innocence Project, won 52 percent of the vote in defeating two-term incumbent Theo Stamos for the Democratic nomination for commonwealth attorney in the close-in suburban jurisdiction of Arlington County. Steve Descano, a former federal prosecutor, won 51 percent of the vote to oust three-term incumbent Ray Morrogh in the well-to-do outer suburban jurisdiction of Fairfax County.
      Campaigning in Democratic strongholds, neither Stamos nor Morrogh presented themselves as old-style, law-and-order prosecutors. Stamos took credit for reducing the incarceration rate in Arlington County, while Morrogh campaigned under the slogan: "Effective. Fair. Progressive." Still, the Washington Post's story viewed the results as bellwethers: "Voters endorse new mandate on criminal justice," the headline read.
      Miriam Krinsky, executive director of the Los Angeles-based advocacy group Fair and Just Prosecution, estimates that more than three dozen reform-minded prosecutors have been elected in recent years. In comments to the Post, Krinsky described the election results as evidence of "a growing new normal in the world of prosecutions." More and more communities and more and more voters are "tired about the old thinking in the criminal justice system," Krinsky explained.
      Andrew Cohen, a senior fellow at the Brennan Center for Justice who also edits the daily report on criminal justice for the Marshall Project, similarly sees a trend in favor of reformers in local prosecutor races. "Clearly, a big part of the criminal justice reform movement over the past five years has been directed at these races as people realize how powerful local prosecutors have become at the local and state levels," Cohen says.
       Cohen cautions, however, that elections cannot guarantee thoroughgoing reform of themselves. Several of the high-profile reform-minded prosecutors, such as Larry Krasner in Philadelphia, Kimberly Foxx in Chicago, and Aramis Ayala in Orlando, encountered opposition as they sought in office to turn away from punitive, sentence-maximizing prosecution policies.
       Ayala, who is African American, declared her opposition to the death penalty upon taking office in 2017 after ousting the incumbent state's attorney in Florida's fifth most populous county the previous year. Florida's Republican governor, Rick Scott, responded by reassigning capital cases from Ayala's office to another state prosecutor — a move that the Florida Supreme Court upheld on a 5-2 vote. Politically battered, Ayala announced late last month [May 28] that she will not seek re-election in 2020.
       Krasner, a former federal public defender and longtime criminal defense and civil rights lawyer, won election as district attorney in Philadelphia in 2017 in a campaign that drew opposition from the city's police union. In office, Krasner stopped prosecuting marijuana possession cases and instructed prosecutors to stop seeking cash bail for defendants arrested for misdemeanors or nonviolent felonies. Some judges overruled some sentence recommendations as too lenient and resisted Krasner's initiative to shorten probation sentences.
       Kimberly Foxx, who is African American, won election as Cook County state's attorney in 2016 after having helped craft a criminal justice reform agenda as chief of staff to the Cook County Board president. In office, she has promoted bail reform by instructing prosecutors to agree to release on recognizance where appropriate and has raised the threshold for prosecuting theft offenses as felonies. The local police union has criticized Foxx's policies as soft on crime.
      With more than 2,400 local and state prosecutors nationwide, the three dozen or so reformers elected in recent years according to Krinsky are far outnumbered when district attorneys gather for conventions and training sessions. But Krinsky's group is promoting a comprehensive reform agenda under the title "21 Principles for 21st Century Prosecutors" that calls for, among other changes, de-escalating charging policies, making plea bargaining more transparent, and reducing use of cash bail.
      Krinsky acknowledges that the agenda "hasn't taken hold everywhere," but she believes that a "new paradigm" is beginning to form. "We are seeing candidates commit to the principles and commit to implementing them in office," she says.
      Listed twelfth among the 21 principle is an exhortation to "address racial disparity," which the report says "exists at every stage of the justice system." The audience for that recommendation is overwhelmingly white, according to a recent study. Among 2,437 elected local and state prosecutors in office in 2014, fewer than 5 percent were African American, according to the study.
       African Americans are also underrepresented among federal prosecutors, according to my review of the current officeholders. Among 93 U.S. attorneys nationwide, Louis Franklin, U.S. attorney for the middle district of Alabama, appears to be the only African American; my count found four Asian Americans and three Hispanics, all the others white.
       Congress and President Trump are also on board the criminal justice reform movement, at least to some extent. Trump was taking unwarranted credit last week [June 13] for the First Step Act, the federal sentence-reducing law he signed in December 2018 after it moved through Congress with bipartisan support. Among other provisions, the law retroactively reduced crack-related sentences for 1,150 offenders: a significant even if modest step toward moving away from "Incarceration Nation."

Sunday, June 9, 2019

On Supreme Court Reform, No Consensus

      Credit law professors Daniel Epps and Ganesh Sitaraman with thinking outside the box to try to save the Supreme Court from the historically unprecedented degree of politicization of the past several decades. But their offsetting proposals to depoliticize the Court are respectively needlessly complex or mind-bendingly unsettling in comparison to a potentially workable solution already adopted in many states.
      Epps, an associate professor at Washington University in St. Louis, and Sitaraman, a professor at Vanderbilt University in my former home town of Nashville, Tenn., have gained wide attention by detailing their two proposals in an article for the Yale Law Journal now being circulated on-line in draft form. Epps and Sitaraman go way beyond the other pending reform proposals, such as adding justices to restore balance on the Court and enacting term politics to de-politicize confirmations. Instead, they open their article with a blunt demand for "a complete rethinking of how the Court works and how the Justices are chosen."
      The two professors call their proposals, respectively, the Balanced Court and the Lottery Solution. The first of the proposals borrows the requirement for political balance in appointments to federal regulatory agencies: the Supreme Court, under this proposal, would consist of 10 justices, five from each of the two major political parties, who would then select by unanimous or supermajority vote five more from the pool of federal appellate judges to sit with them two years later for a period of one year.
      The Lottery Solution would go one step further by creating the "one Supreme Court" as specified in the Constitution by randomly selecting nine justices from the pool of federal appellate judges to sit for two-week periods. For good measure, the professors pair this proposal with the oft-discussed idea of a supermajority requirement to overturn a federal statute  not by a 6-3 vote as generally proposed in the past but by an even stronger 7-2 vote.
      These proposals were among others discussed in an opening plenary session when legal progressives gathered in Washington last week [May 7] for the annual convention of the American Constitution Society (ACS). Attendees were greeted outside the Capital Hilton by earnest ACS members handing out cards with the printed message: "It's Time to Unite Around Supreme Court Reform." The card listed the three narrower reforms: expanding the Court, enacting term limits, and adopting a code of ethics for the justices.
      Before considering the various proposals, it is necessary to explain how what is widely described as the Supreme Court's crisis of legitimacy has come to pass. Epps and Sitaraman list several factors, but the most important and chronologically the first is the overt politicization of the Court by a succession of Republican presidents and over time the Republican Party writ large.
      For the last half century, five Republican presidents — all except Gerald Ford  have used Supreme Court appointments deliberately to politicize the Court, unsettle precedent, and pursue a partisan conservative agenda. Democratic presidents, Bill Clinton and Barack Obama, have not responded in kind.
      To be sure, the four Democratic-appointed justices  Ginsburg, Breyer, Sotomayor, and Kagan — can all be described as liberals or progressives. But all of them with the possible exception of Sotomayor commanded wide support in legal and judicial circles before their appointments as consensus seekers rather than doctrinaire ideologues.
      Ginsburg and Breyer won Senate confirmation with 96 and 87 votes respectively, Sotomayor and Kagan each with more than 60. Compare that to the under-60 vote confirmations of Thomas, Alito, Gorsuch, and Kavanaugh. In a fair process, President Obama's blocked nominee Merrick Garland would likely have won confirmation  thus, McConnell's decision to deny him any hearing whatsoever.
      Indeed, Supreme Court watchers who do the numbers have shown that none of the four current Democratic justices is as "liberal" as the most "conservative" of the Republican appointees: notably, Rehnquist, Scalia, Thomas, and now Alito. The two Trump appointees, Gorsuch and Kavanaugh, can be expected to be equally conservative after being blessed as Supreme Court nominees by the ultraconservative Federalist Society.
      Epps and Sitaraman define the current crisis as "the rise of a Court polarized on party lines." They cite as additional factors the deeply divided political environment and the rise of competing schools of legal thought  think, originalists versus living constitutionalists  with opposing views corresponding to the two major political parties. The combination of these factors, in effect, lead Epps and Sitaraman to despair of any possible reforms other than a complete transformation of the Court as we know it.
      Thus, they give no consideration to the kind of nonpartisan merit selection systems adopted in a number of states, including my home state of Tennessee. At the federal level, one reform  outlined here for the first time as far as I know  could be the creation of a nine-member Supreme Court nominating commission, with two members each appointed by the party leaders in the House and the Senate and perhaps a ninth by the president.
      The president, under this plan of mine, could nominate as justice only a candidate deemed qualified by a two-thirds supermajority of the commission on the basis of professional qualifications, judicial temperament, and legal views. Epps and Sitaraman, I suppose, would view this idea as ineffective in reducing the now hard-wired politicization of the Supreme Court confirmation process.
      The ACS panel produced no consensus around any of the reform proposals. Epps and Sitaraman reject expanding the Court as inviting a tit-for-tat response in the future; they reject term limits as more likely to increase rather than reduce the politicization of the confirmation process. The lack of consensus on the legal left likely dooms any of the reforms, especially if Republicans think they will continue to have the upper hand in these debates. Thus, the message for Democrats and legal progressives is simple and direct: Elections have consequences; the path to Supreme Court reform begins and ends at the ballot box.

Sunday, June 2, 2019

At Harvard, Defending Truth in Age of Trump

      Angela Merkel, chancellor of Germany and leader of the Free World since President Donald Trump abdicated that role, came to Harvard University last week [May 30] to accept an honorary degree and to plead with Americans to rededicate ourselves to among other principles "the maxim of truth."
      Harvard's founders adopted truth — in Latin, Veritas — as the school's motto in 1640, four years after Pilgrim settlers founded the college in a former cow yard in a sylvan wilderness. The Harvard shield, with the letters of veritas superimposed on three opened books, adorns interior and exterior walls throughout the campus in what is now the 21st century metropolis of Cambridge, Massachusetts.
      Truth was on the minds of several of the speakers during Harvard's week-long "festival rites," to borrow the phrasing from Fair Harvard. Trump, a member of Harvard's extended family through his government major son-in-law, Jared Kushner, A.B. 2003, was not in Cambridge, but he was the unnamed target of thinly veiled swipes from Merkel and several other speakers for his ongoing war against truth.
      Merkel, in her 14th year as chancellor but politically battered by immigration politics, embraced global multilateralism in a 35-minute speech that would have been welcomed by any of the previous post-World War II American presidents but not by the "America First" Trump. "More than ever, our way of thinking and our actions have to be multilateral rather than unilateral, global rather than national, outward-looking rather than isolationist," Merkel declared. "In short, we have to work together, rather than alone.”
      Seventy years earlier, in a very different country from today's United States, the American secretary of state George Marshall had spoken from the same spot on Harvard's campus to propose what became the Marshall Plan: the $13 billion rebuilding of war-torn Europe by a prosperous and victorious United States. Merkel listed the benefits of what she called "a transatlantic partnership based on values such as democracy and human rights," specifically "an era of peace and prosperity, of benefit to all sides, which has lasted for more than 70 years now."
      Merkel received standing ovations at several points in her speech, perhaps the longest when she called on her audience "not to describe lies as truth and truth as lies." Calling on the audience to "be honest with ourselves," the former research chemist declared, "What better place to begin than here in this place, where so many young people from all over the world come to learn, to research, and to discuss the issues of our time under the maxim of ‘truth.'”
      Two days earlier, former vice president Al Gore had the importance of truth on his mind too as he delivered a 28-minute speech to graduating seniors and their families on Class Day [May 28]. Gore, participating in his 50th class reunion along with me and 500 other class of '69 classmates, used part of the speech to preach the importance of addressing what he labeled the "existential crisis" posed by climate change caused by dumping billions of tons of carbon dioxide into the atmosphere as though it is an open sewer.
      Without mentioning Trump by name, Gore also turned to domestic politics and what he saw as the threat to democracy in the age of Trump. "Veritas— truth — is not only Harvard’s motto," Gore declared, "but it is also democracy’s shield. And the right to pursue truth is the most fundamental right of them all, and that right is now at risk."
      "And as a result," Gore went on, "freedom itself is at risk, more so now than it was 50 years ago. The system of checks and balances that has protected the integrity of our American system for more than two centuries has already been dangerously eroded.”
      Truth was also on the mind of another classmate, Robert Post, professor and former dean of a certain unnamed law school in southern Connecticut, as he reflected in a speech to former classmates on the unrest and rebellion that marks the class of '69 in history and Harvard lore. That rebellion, Post recalled, was "infused with a constructive appreciation of the authority of disciplined thought and expertise." But today, he went on, contemporary populism in the United States and elsewhere comes with "profound disdain for the authority of knowledge."
      "Apparently the infinite gush of information now cheaply and easily available on the internet has made every person an authority on every possible subject," Post said. "The upshot is that truth is no longer the product of patient inquiry and disciplinary craft. It is instead merely the opinion produced in the echo-chambers of like-minded partisans."
      Post acknowledged the reasons for the growing distrust of elite centers of knowledge such as Harvard: for example, the growing economic inequality in the United States and the loss of upward economic mobility. The distrust, he went on, can be seen in "the refusal to credit scientific judgment" in matters such as climate change and vaccinations and in the "utter disrespect of economic theories in controversies like Brexit" — or, he might have mentioned, Trump's trade wars.
      Truth, it has often been said, is "the first casualty in war." And thus it is in the uncivil war between red state Trump supporters and blue state opponents. But this son of Harvard left the campus with renewed hope for what Fair Harvard describes in closing as, "Calm rising through change and through storm."