Sunday, April 25, 2021

'Packed' Court Spurns Juvenile Offenders

Brett Jones was a 15-year-old boy with a troubled childhood and a possibly pregnant girlfriend when he killed his grandfather on August 9, 2004. Jones had come to live with his grandparents in northeastern Mississippi a few months earlier just after his abusive stepfather had kicked him out of his childhood Florida.

Jones’ grandfather provoked the fatal argument with his grandson after finding the boy with his girlfriend in his bedroom. Jones claimed self-defense in his later trial, but the jury convicted him of murder.

The judge in the case sentenced Jones to spend the rest of his life behind bars under the then-mandatory life-without-parole sentence for murder in Mississippi. Seven years later, however the Supreme Court outlawed mandatory life-without-parole sentences for juvenile offenders in a 5-4 decision known as Miller v. Alabama. Jones cited that decision when he got a resentencing hearing in 2015 before the same judge who had sentenced him 10 years earlier.

Predictably perhaps, Judge Thomas Gardner imposed the same sentence and again sentenced Jones to die behind bars even while claiming to be following the Supreme Court precedent

Jones, who has a good prison record after spending half of his life behind bars, managed to get the Supreme Court to consider his case during its current term. Jones’ lawyers argued simply that the Court’s earlier ruling required a sentencing judge to find a juvenile offender permanently incorrigible before imposing a life-without-parole (LWOP) sentence.

The Supreme Court that heard Jones’ case is much different from the Court that envisioned nine years ago that LWOP sentences for juvenile offenders should be rare and should be imposed only if the teenager’s crime reflected “irreparable corruption.”

Instead of enforcing its precedent on the incorrigible Mississippi judge, however, the Court reversed course last week [April 22] and found no need for judges to make specific findings before imposing a life-without-parole sentence on a juvenile offender.

The Court’s 6-3 decision against Jones was the product of Court packing by a Republican president, Donald J. Trump, and a Republican-majority Senate. Three of the justices in the new majority had dissented from the earlier decision; and the three other votes came from Trump’s justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Those three justices would not be on the Court today but for a change in Senate rules allowing Supreme Court confirmations with fewer than sixty votes. Kentucky’s Mitch McConnell, the Senate Republican leader who blocked Merrick Garland’s nomination in 2016, engineered the rules change in 2017 to thwart Democrats’ opposition to Trump’s nomination of Gorsuch to the seat earlier intended for Garland.

Gorsuch, Kavanaugh, and Barrett all won confirmation by historically narrow margins, all but completely on the strength of Republican votes. Three Democrats voted with 51 Republicans to confirm Gorsuch; Kavanaugh’s 50-48 confirmation came with only one Democrat voting for him; and Barrett’s 52-48 confirmation came solely on the strength of Republican votes, making her the first justice since 1881 to win confirmation without a single vote from senators of the opposite party.

In an ironic coincidence, the writing of the Jones decision fell to Kavanaugh, who as a beer-guzzling, party-loving teenager had his own episodes of immaturity. Kavanaugh won confirmation partly on the strength of his plea that he be judged on his later career rather than his wild oats-sowing days in high school and college.

In writing the decision in Jones’ case, Kavanaugh insisted that he was faithfully following the Court’s precedent in Miller. But he softened the blow by noting that Jones has several state avenues for “sentencing relief” that will remain open to him for years to come.

In a lengthy dissent for three liberal justices, however, Justice Sonia Sotomayor scoffed at Kavanaugh’s claimed respect for precedent. “The Court is fooling no one,” she wrote. The decision, she said, amounted to “an abrupt break with precedent,” with none of the usual justifications cited for reversing prior rulings.

The same Republicans who so effectively packed the Court with ideological conservatives are now complaining that a Democratic bill to add four seats to the Court to correct the current imbalance would amount to Court packing. The GOP’s hypocrisy is so thick that it can be cut with a knife.

The prospects for such legislation in the evenly divided Senate are, at best, cloudy. But Democrats are correct in warning that the Trump-packed Court, with its lopsided 6-3 majority, represents a serious threat to democracy as Republican-controlled legislatures are considering various voter suppression measures and bills to put local election supervisors under control of partisan officeholders.

Admittedly, Chief Justice John Roberts has disappointed conservatives with some of his votes and with apparent foot-dragging on such conservative initiatives as expanding gun rights and limiting abortion rights.

But Roberts has been consistent in upholding Republican-backed measures to make voting more difficult and seems likely to lead his conservative colleagues in voting to uphold whatever legislation vote-suppressing Republicans may enact.

Monday, April 19, 2021

Across Nation, Cops Still Behaving Badly

            George Floyd’s death under the weight of Derek Chauvin’s knee ought to have been a teaching moment for police officers all around the country to rethink their reflexive resort to force in unruly encounters with civilians, but apparently not. Even with saturation coverage of Chauvin’s trial over the past three weeks, deadly run-ins between police and civilians have continued unabated, according to a compilation by The New York Times.

            At least sixty-four people have died at the hands of police officers nationwide since testimony began in Chauvin’s trial on March 29, according to the Times’ double-bylined article by reporters John Eligon and Shawn Huber in the newspaper’s April 18 print edition. More than half of the victims were Black or Latino,  The deaths testify, according to the reporters, to “the split-second choices and missteps by members of law enforcement that can escalate workaday arrests into fatalities.”

            Too often, as Floyd’s death on May 25, 2020, shows, the cop’ instinctive resort to lethal force has little if anything to do with keeping the people of their communities safe. Floyd posed no threat to public safety in the Twin Cities, but he did pose a threat to Derek Chauvin’s authority. As Chauvin told a police dispatcher while forcing Floyd onto the ground, “We’ve got to control this guy.”

            Caron Nazario, a uniformed U.S. Army officer, was a victim of the same sort of bullying behavior by cops on December 5 when two Windsor, Virginia, police officers stopped him for a supposed traffic violation and pepper sprayed him as he sat, unarmed, in his vehicle. Nazario drove for a mile toward a well-lit area with the officers flashing their vehicle’s lights behind him. The officers grow increasingly angry with Nazario as the in-uniform second lieutenant explains that he fears for his safety.

            Body-camera video of the episode showing that the officers pointed weapons at Nazario emerged three months later and went viral as Chauvin’s trial  continued in Minneapolis.The video shows Nazario insistently asking for an explanation of the traffic stop and pleading with the officers to calm down as their tempers are evidently flaring.

 Nazario is shown with his hands, empty, raised in compliance with the officers’ demands. R.D. Riddle, police chief in the tiny town in southeastern Virginia, is blaming the entire episode on Nazario’s supposed failure to comply with the officers’ instructions but also crediting the officers with de-escalating the confrontation by holstering their firearms in favor of their tasers.

            Riddle has confirmed that an internal investigationi was instituted after the incident and one of the officers, Jose Gutierrez, was fired after the review was completed. The second officer, Daniel Crocker, is still on the job. Nazario has sued both of the officers in federal court for $1 million in compensatory damages for allegedly violating his First and Fourth Amendment rights.

            A somewhat similar traffic stop in a Minneapolis suburb ended tragically last week [April 11] with the shooting death of the unarmed driver, twenty-year-old Duante Wright, at the hands of the veteran Brooklyn Center police officer Kim Potter. Potter and two other officers had stopped Wright for expired registration tags and for an air freshener hanging from his car’s rearview mirror. After checking, the officers learned that Wright, who was Black, had an arrest warrant pending for an attempted armed robbery charge two years earlier.

            Body camera video of the encounter shows a scuffle between Wright and the officers as he attempted to get back into his car. Potter can be heard to say, “I’m going to tase you.” All but inexplicably,  Potter, a 26-year veteran of the force, draws and fires her firearm instead of her taser—a mistake, as she later explained. “Oh, shit,” Potter is heard to exclaim. “I shot him.”

Later news coverage showed that the two weapons differ by weight, appearance, and material, but even so some news organizations uncovered evidence of more than a dozen similar mistakes over several years. The Brooklyn Center police chief also told reporters that protocol calls for officers to carry their firearm on their dominant side and their taser on the opposite side.

Potter, who is white, resigned after the episode; so did the police chief. A state court grand jury indicted Potter three days later [April 14] for second-degree involuntary manslaughter, defined in Minnesota law as a homicide resulting from “culpable negligence.” The indictment came after three days of tense demonstrations in the mostly white suburb.

 The debate over police use of force intensified after video emerged The of the March 29 shooting death of a Black Chicago teenager, Adam Toledo, at the hands of a Chicago police officer, Eric Stillman. The video shows the officer chasing the 13-year-old boy down an alley and ordering him to stop and show his hands. The video appears to show the boy tossing a handgun onto the ground and raising his hands as instructed just as the officer fires a fatal shot into the boy’s chest.

Stillman, who had a record of several use-of-force complaints without discipline, has been placed on administrative leave pending a full investigation into the episode. Criminal charges would be difficult, if not impossible, legal observers appeared to agree, even as law enforcement-minded commentators defended Stillman’s decision to shoot as he confronted a split-second decision about his own safety.

            With the broad national debate ongoing, Derek Chauvin’s trial reaches a critical juncture today [April 19] as lawyers present closing arguments before the case is turned over to the racially mixed jury. Legal experts generally credit the prosecution with a well-presented case showing that Floyd died from asphyxiation and that Chauvin’s restraint technique went against police policies. Chauvin’s defense attorney, Eric Nelson, has fulfilled his ethical obligation by challenging the prosecution on both premises, but overall the prosecution’s case appears mostly unshaken.         


Sunday, April 11, 2021

At Harvard Law, Breyer's Farewell Address?

            Supreme Court Justice Stephen Breyer might or might not be contemplating his eventual retirement these days, but he delivered a lecture at Harvard Law School last week [April 6] that could well serve as his farewell address after twenty-seven years on the Supreme Court. Breyer used the two-hour lecture, the video available via YouTube, to warm against “the perils of politics” that threaten the Court’s authority and public confidence in the Court.

At age 82, Breyer is now the oldest of the nine current justices and the tenth oldest justice in history. He has no known health issues that interfere with his work or that might force him to step down in the near future. His questions to lawyers during the current term’s oral arguments have been unaffected by advancing age. He also demonstrated his mastery of legal craftsmanship by leading the Court’s 6-2 majority last week [April 5] in a factually complex decision that cleared Google of copyright infringement for copying parts of the Java platform when it set up the Android platform for smartphones beginning in 2005.

             Breyer, it must be remembered, was confirmed by an 87-9 Senate vote in 1994 based on his reputation for bipartisanship as a Senate committee staffer and as a judicial moderate on the federal appeals court in Boston. He has been a moderate liberal on the Supreme Court, siding with conservatives for example in some Fourth Amendment decisions favoring law enforcement over suspects or defendants.

            The speculation that Breyer might or perhaps should retire soon has increased with the election of an ideologically compatible president in the White House and Democrats in control of the Senate. Breyer made no reference to possible retirement in the Harvard lecture and has had no public comment since a liberal law professor called for his early retirement last month [March 15] in an op-ed in The New York Times.

The University of Colorado’s Paul Campos warned in the article that Democrats could lose control of the Senate if any one of the fifty Democratic senator were to die or retire and be succeeded by a Republican appointee. Under present circumstances, Campos wrote, “it would be a travesty if the Supreme Court seat occupied by Justice Breyer was not filled by a replacement chosen by Democrats.”

Breyer’s longtime colleague, Ruth Bader Ginsburg, responded to questions about her own tenure over the years by vowing to stay on the job as long as she was able to do the work. Her death last fall gave President Trump the chance to create a lopsided conservative majority on the Court, with the liberal bloc reduced from four to three justices. Breyer has been mum about possible retirement even to the point of avoiding any assurance that he is still up to the job and plans to stay as long as he is.

            In his lecture, Breyer noted that despite the political attacks of the past half-century the Court continues to do well in public opinion polls that show it has higher approval ratings than Congress. Public confidence in the Court, Breyer explained, was neither automatic nor foreordained. He relates the history of political conflicts with presidents—for example, between Jefferson and the Marshall Court, Jackson and the late Marshall Court, and FDR and the conservative Court Roosevelt inherited from Republican ascendancy in the 1920s.

            Recalling this history, Breyer appears to be pleading with whatever audience the lecture may gain to set aside their view of justices as politicians in robes. Judges, he acknowledges, take the bench with political views and legal philosophies well formed and shaped by their personal backgrounds. “I cannot jump out of my own skin,” he explains. “No one can.”

            Breyer’s pleading, unfortunately, will fall on deaf ears on the political right. Five Republican presidents – Nixon, Reagan, Bush 41, Bush43, and Trump – have pushed the ideological envelope in appointments to the Court and conditioned political partisans to view Democratic-appointed justices as activists even as conservative justices  have crafted new constitutional doctrines or overruled precedents to throw out laws enacted by Congress.

            True to his warnings against politics, Breyer cautioned against one of the Supreme Court reform proposals that has gained favor among some Democrats and many liberal Court watchers. Expanding the Court to ten justices, he warned, would feed the public perception that decisions are driven not by law, but by politics. Breyer’s opposition may well be moot., however As candidate and as president, Biden has not endorsed expanding the Court’s membership and any such proposal would be all but impossible to win filibuster-proof support in the 50-50 Senate.

            As for other Supreme Court reform proposals, the Washington Post editorial board weighted in this weekend [April 11] by arguing that term limits for justices would be more important than Court packing and more politically palatable as well. Those proposals too face an uphill road in the face of constitutional doubts and intricate questions about how to apply term limits to sitting justices.


Sunday, April 4, 2021

In Derek Chauvin's Trial, Lessons for All to See

            Two of the three major cable news channels have performed a valuable public service by providing live, daily coverage of the murder trial of former Minneapolis police office Derek Chauvin for the death of George Floyd. The five days of testimony that began on Monday [March 29] showed, painfully and wrenchingly, the degree of Chauvin’s malice and recklessness in pinning Floyd’s neck to the ground until after an agonizing nine minutes Floyd lay lifeless, with no pulse found by on-scene paramedics.

            By the time the trial began, ten months after Floyd’s death, the people of Minneapolis and all Americans had seen excerpts of the bystander’s video from that day, with Chauvin’s three colleagues standing by mute and the protesting onlookers pleading with Chauvin to let up. But the airing of the full nine-minute video from Chauvin’s body camera is, as the lawyers might say, the best evidence of what happened that day—not just for the multiracial jury, but for all Americans to judge as well.

            In an odd bit of journalistic rivalry, Tucker Carlson used his Fox News commentary one night last week to complain that the other news channels, CNN and MSNBC, were treating the trial as though it were the Super Bowl—seemingly to gain audience share and, in Carlson’s view, knowingly to further divide public opinion on the “Black Lives Matter” movement and the need to reform police policies and practices.

            Carlson appeared to be bragging that Fox was staying away from coverage of the trial, perhaps the first time in journalistic history that a news organization has bragged about failing to cover one of the most important events of the day. But Carlson may understand that the public viewing of the trial supports the central thesis of the Black Lives Matter movement on the need to redress racist stereotypes held by too many white police officers and the need to adopt and enforce strict policies on the use of force.

            This mini-debate on coverage of the trial brought to mind, for me, Chief Justice Warren Burger’s explanation of the importance of public criminal trials in an important decision four decades ago. Writing the main opinion in Richmond Newspapers v. Virginia  (1980), Burger reinforced the tradition of open criminal trials by citing as benefits “the significant community therapeutic value of public trials” and a public trial’s role in “providing an outlet for community concern, hostility, and emotion.”

            The people of Minneapolis need that outlet and so do the millions of Americans who sympathize with the Black Lives Matter movement, whether or not the Fox News opinion-mongers do. With the jury’s verdict necessarily uncertain, coverage of the trial may help Americans accept the eventual outcome of the trial as a legal judgment based on the evidence and the law rather than a political statement one way or the other.

            Viewers who stayed with the trial as the week continued had the opportunity to hear for themselves testimony from Chauvin’s superiors that his conduct was, whether or not criminal, out of line with best police practices. Testifying on Friday [April 2], Lt. Richard Zimmerman, the longest serving officer on the Minneapolis police department, testified bluntly for the prosecution that Chauvin’s knee on Floyd’s neck was “totally unnecessary.”

“Pulling him down to the ground facedown and putting your knee on a neck for that amount of time, it’s just uncalled for,” Zimmerman testified, after viewing the video in the courtroom. The veteran officer also answered any fear that Chauvin might have had of Floyd.  “Once a person is handcuffed,” Zimmerman went on to say, “the threat level goes down all  the way. They’re cuffed: how can they really hurt you?”

            Chauvin had been the subject of twenty-two complaints – eight of them involving use of force against arrestees -- in his nineteen-year career before he was fired within days after Floyd’s death on May 25, 2020. Only one of the complaints resulted in discipline: city records quoted in news coverage show that only a small fraction of adjudicated complaints against Minneapolis officers over the past decade resulted in discipline.

The prosecution wanted to introduce evidence of eight of those incidents, but Hennepin County District Judge Peter Cahill allowed only two of them. Whether or not the incidents were admissible in a criminal trial, Chauvin’s history raises the question of whether the department should have kept him on the force or, in any event, allowed him to assume a supervisory role over younger officers – like the three officers who deferred to Chauvin’s seniority as they watched him continue to kneel on Floyd’s neck even as Floyd pleaded, “I can’t breathe.”

            Chauvin is charged with second-degree murder and manslaughter, The other three ex-officers  at the scene – J. Alexander Kueng, Thomas K. Lane, and Tou Thao – face criminal charges themselves and are scheduled to stand trial on aiding-and-abetting charges beginning on Aug. 23. Cahill ordered a separate trial for the trial, over the objection of State Attorney General Keith Ellison, whose office is prosecuting the cases. Cahill voiced concern that a joint trial could be a superspreading coronavirus event, while Ellison contended that a second trial would be retraumatizing for the witnesses in the two cases.

            By week’s end, the trial was seen as ahead of schedule, with a second week of testimony set to begin on Monday [April 5]. Whatever the eventual verdict may be, police administrators around the country must take the lessons from Chauvin’s trial needed to prevent unnecessary deaths like Floyd’s in the future.