When an Amish farmer claimed religious objections to paying Social Security taxes for his employees back in the 1980s, the Supreme Court had little difficulty in ruling against him. “When followers of a particular sect enter into commercial activity as a matter of choice,” Chief Justice Warren E. Burger wrote for a unanimous court in United States v. Lee (1982), “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.”
Three decades later, the same issue is before the Supreme Court, but in a very different political context. The government program at issue in the current cases is not Social Security — a long established and popular success — but one provision in President Obama’s Affordable Care Act, which is new and unpopular. And the religious belief at issue is not the idiosyncratic Amish opposition to government assistance, but the widely shared opposition among religious conservatives to contraception, especially the so-called Plan B emergency contraceptive, which some view as a drug to induce an abortion.
The legal context has also changed. Under a law passed by Congress in 1993 — the Religious Freedom Restoration Act (RFRA) — the federal government cannot abridge a person’s free exercise of religion except to serve a compelling government interest in the least restrictive manner possible — the so-called “strict scrutiny” test.
Despite the change in law, however, make no mistake: the cases that reached the court last week are politically driven and the outcome as likely as not to be determined by political as much as by legal considerations. Congress had sound reasons to require employers to include free coverage of contraceptives in their employee health plans. Those reasons would satisfy the strict-scrutiny test but for the political opposition to the Affordable Care Act found not only among politicians and the public but also within the federal judiciary, including at the Supreme Court.
The two cases before the court both involve companies formed as closely held corporations by families whose members are opposed to abortion and to emergency contraception on religious grounds. The Mennonite Kahn family in Lancaster County, Pa., own a woodworking company, Conestoga Wood Specialities, with about 950 employees. David Green and his family, evangelical Christians, own (through a trust arrangement) the Oklahoma-based Hobby Lobby Stores, a chain of some 500 arts and crafts marts with 13,000 employees all told.
The corporate status of the two companies raises a preliminary but potentially determinative issue that has divided the federal courts of appeals to rule on these cases so far: Does a secular, for-profit corporation have a constitutionally protected right to free exercise of religion? In the Conestoga case, the Third U.S. Circuit Court of Appeals said no. The free exercise right is “purely personal,” the court ruled in a 2-1 decision. The Sixth Circuit agreed in a decision issued last week [Sept. 17]. In the Hobby Lobby case, however, the Tenth U.S. Circuit Court of Appeals cited precedents recognizing free-exercise rights for churches organized as corporations and found no basis for treating for-profit corporations differently.
The government and the administration’s supporters in the legal blogosphere are investing a lot of capital on this issue. Corporations, they note, do not enjoy all of the protections listed in the Bill of Rights. A corporation, for example, has no Fifth Amendment privilege against self-incrimination. But the five justices who found a broad right of political speech for corporations in the Citizens United case may see no reason not to recognize a corporation’s right to religious expression as well, especially since all five have been sensitive to free exercise claims in other contexts.
So the administration needs to invest equally in defending the contraception mandate on the merits if the court agrees to hear the case (as seems likely) after considering the separate petitions filed by Conestoga and by the government in the Hobby Lobby case. And on the merits the Supreme Court’s reasoning in rejecting the Amish farmer’s case 30 years ago directly applies to the current issue.
The tax system could not function, Burger wrote, if people could challenge it because tax payments were spent in a manner that violated their religious beliefs. Given the importance of maintaining a sound tax system, he concluded, “religious belief in conflict with the payment of taxes affords no basis for resisting the tax.”
In enacting the Affordable Care Act, Congress and the president decided that the government has a strong interest as well in a health care system that, among other things, ensures adequate insurance coverage for preventive services, including contraception. Increased access to contraceptive services is important, the government argues in the Hobby Lobby case, because lack of contraceptive use can have “negative health consequences for both women and children.” The government also has a separate interest in ensuring equal access to health care for women, who pay more than men out of pocket for health care.
Accommodating the Kahns, the Greens, and others like them would deny the employees of their companies the benefits of this government policy. It would also invite other exceptions, the government notes — for example, religious-based objections to immunizations. These are strong legal arguments, but they may not be enough for the five Roberts Court justices who have already shown themselves to be deeply skeptical of the Affordable Care Act’s major premises.
Monday, September 23, 2013
Sunday, September 15, 2013
For Justice Kennedy, the Power of Being Earnest
Supreme Court Justice Anthony M. Kennedy was at his most serious and most earnest as the keynote speaker at the annual meeting of the American Bar Association (ABA) in San Francisco last month [Aug. 10]. Greeting his audience as “fellow adherents to the rule of law,” Kennedy devoted the first half of a 26-minute speech to the national crisis in prison crowding before turning in the second half to the importance of civic education for young people.
Kennedy had all the usual statistics about overincarceration in the United States: 2.1 million prisoners nationwide, including 160,000 in his home state of California — an imprisonment rate seven times greater than in England, France, or Germany. But he quoted as well from the Gospels — “I was in prison and ye came unto me” — to stress the bar’s responsibility to address the crisis. Despite the prisoner’s offense, Kennedy concluded, “he or she is part of the family of humankind.”
Kennedy was, if anything, even more didactic as he talked about instilling in young people a proper appreciation for “the meaning of freedom and its history.” “You cannot preserve what you have not studied,” the one-time constitutional law professor said. “You cannot protect what you do not comprehend. You cannot defend what you do not know.”
Some in the press corps have been known to roll their eyes as Kennedy waxes lyrical in his speeches. His conservative critics — including his fellow justice, Antonin Scalia — sneer more pointedly when Kennedy veers into grandiloquence in his opinion. As one example, they cite Kennedy’s opening paean to the “transcendent dimensions” of individual liberty in his opinion for the court in Lawrence v. Texas (2003) striking down laws against gay sex.
But make no mistake: Kennedy’s tendencies toward pomposity are nothing to be trifled with. Today, after a quarter-century on the court, Kennedy is clearly its most powerful individual member. Year after year, he is the justice with the fewest number of dissenting votes. “It’s the Roberts Court,” NBC’s Supreme Court correspondent remarked in his end-of-term wrap-up in June. “But Anthony Kennedy is the president and chief executive officer.”
Kennedy is in fact more powerful than his former swing-vote colleague, Sandra Day O’Connor, who was given the title of “most influential justice” in Joan Biskupic’s biography a few years back. O’Connor’s tendency was to cast her often decisive vote in favor of splitting the difference between opposing views. Kennedy, by contrast, comes down hard on one side or the other: no muddled compromises in his majority opinions in closely divided decisions. Instead, as in Lawrence, Kennedy sets out explicit holdings, black-letter law for judges to follow with little of the case-by-case weighing that O’Connor often favored.
As a result, Kennedy’s judicial legacy is of real, unmistakable consequence. And he has made his mark in areas that one might not have expected.
Gay rights is the most recent and most obvious example. Kennedy authored the 5-4 decision in June, United States v. Windsor, that struck down the federal Defense of Marriage Act (DOMA), which barred marriage-based benefits to married gay and lesbian couples. He also wrote the court’s two previous gay rights landmarks: Lawrence and the earlier decision, Romer v. Evans (1996), that struck down a Colorado initiative barring the enactment of anti-gay discrimination laws.
Gay rights advocates opposed Kennedy when he was nominated to the court in 1987, noting that he had ruled against gay rights plaintiffs in five cases while on the federal appeals court in California. With a keener eye, they might have recognized a gay rights supporter waiting to come out. In the first of the cases, Beller v. Middendorf (1981), Kennedy upheld the military’s policy of discharging homosexuals but only after acknowledging that “the choice to engage in homosexual action” might be “a fundamental right” entitled to “full protection as an aspect of the individual’s right to privacy.”
Kennedy has also made his mark on sentencing issues. He has been the pivotal vote in a series of decisions beginning in 2002 that bar the death penalty for mentally retarded defendants, for juveniles, or in child rape cases. Kennedy also wrote the 2010 decision barring life without parole sentences for juveniles in non-homicide cases and led the follow-on decision to bar mandatory life without parole terms for juvenile murderers.
As the court’s most consistent First Amendment supporter, Kennedy can also take credit for the string of rulings under Chief Justice John G. Roberts Jr. generally backing freedom of speech. Indeed, according to insider accounts, it was Kennedy who prevailed on Roberts in the campaign finance case, Citizens United v. Federal Election Commission (2010), to turn a narrow ruling into a broad guarantee of political speech rights for corporations.
On the bench as in his writing, Kennedy is always in earnest. Other justices engage in an occasional joke or witticism, but Kennedy hardly ever if at all. He came to the court as a safe choice after the Senate rejected the combative conservative, Robert Bork, as outside the mainstream. Instinctively mild of manner, Kennedy might have been expected to recede to the background. Instead, with the court about to begin a new term, he once again is the justice that lawyers focus on as they fashion their arguments and the justice that court watchers watch as they handicap the term’s cases.
Kennedy had all the usual statistics about overincarceration in the United States: 2.1 million prisoners nationwide, including 160,000 in his home state of California — an imprisonment rate seven times greater than in England, France, or Germany. But he quoted as well from the Gospels — “I was in prison and ye came unto me” — to stress the bar’s responsibility to address the crisis. Despite the prisoner’s offense, Kennedy concluded, “he or she is part of the family of humankind.”
Kennedy was, if anything, even more didactic as he talked about instilling in young people a proper appreciation for “the meaning of freedom and its history.” “You cannot preserve what you have not studied,” the one-time constitutional law professor said. “You cannot protect what you do not comprehend. You cannot defend what you do not know.”
Some in the press corps have been known to roll their eyes as Kennedy waxes lyrical in his speeches. His conservative critics — including his fellow justice, Antonin Scalia — sneer more pointedly when Kennedy veers into grandiloquence in his opinion. As one example, they cite Kennedy’s opening paean to the “transcendent dimensions” of individual liberty in his opinion for the court in Lawrence v. Texas (2003) striking down laws against gay sex.
But make no mistake: Kennedy’s tendencies toward pomposity are nothing to be trifled with. Today, after a quarter-century on the court, Kennedy is clearly its most powerful individual member. Year after year, he is the justice with the fewest number of dissenting votes. “It’s the Roberts Court,” NBC’s Supreme Court correspondent remarked in his end-of-term wrap-up in June. “But Anthony Kennedy is the president and chief executive officer.”
Kennedy is in fact more powerful than his former swing-vote colleague, Sandra Day O’Connor, who was given the title of “most influential justice” in Joan Biskupic’s biography a few years back. O’Connor’s tendency was to cast her often decisive vote in favor of splitting the difference between opposing views. Kennedy, by contrast, comes down hard on one side or the other: no muddled compromises in his majority opinions in closely divided decisions. Instead, as in Lawrence, Kennedy sets out explicit holdings, black-letter law for judges to follow with little of the case-by-case weighing that O’Connor often favored.
As a result, Kennedy’s judicial legacy is of real, unmistakable consequence. And he has made his mark in areas that one might not have expected.
Gay rights is the most recent and most obvious example. Kennedy authored the 5-4 decision in June, United States v. Windsor, that struck down the federal Defense of Marriage Act (DOMA), which barred marriage-based benefits to married gay and lesbian couples. He also wrote the court’s two previous gay rights landmarks: Lawrence and the earlier decision, Romer v. Evans (1996), that struck down a Colorado initiative barring the enactment of anti-gay discrimination laws.
Gay rights advocates opposed Kennedy when he was nominated to the court in 1987, noting that he had ruled against gay rights plaintiffs in five cases while on the federal appeals court in California. With a keener eye, they might have recognized a gay rights supporter waiting to come out. In the first of the cases, Beller v. Middendorf (1981), Kennedy upheld the military’s policy of discharging homosexuals but only after acknowledging that “the choice to engage in homosexual action” might be “a fundamental right” entitled to “full protection as an aspect of the individual’s right to privacy.”
Kennedy has also made his mark on sentencing issues. He has been the pivotal vote in a series of decisions beginning in 2002 that bar the death penalty for mentally retarded defendants, for juveniles, or in child rape cases. Kennedy also wrote the 2010 decision barring life without parole sentences for juveniles in non-homicide cases and led the follow-on decision to bar mandatory life without parole terms for juvenile murderers.
As the court’s most consistent First Amendment supporter, Kennedy can also take credit for the string of rulings under Chief Justice John G. Roberts Jr. generally backing freedom of speech. Indeed, according to insider accounts, it was Kennedy who prevailed on Roberts in the campaign finance case, Citizens United v. Federal Election Commission (2010), to turn a narrow ruling into a broad guarantee of political speech rights for corporations.
On the bench as in his writing, Kennedy is always in earnest. Other justices engage in an occasional joke or witticism, but Kennedy hardly ever if at all. He came to the court as a safe choice after the Senate rejected the combative conservative, Robert Bork, as outside the mainstream. Instinctively mild of manner, Kennedy might have been expected to recede to the background. Instead, with the court about to begin a new term, he once again is the justice that lawyers focus on as they fashion their arguments and the justice that court watchers watch as they handicap the term’s cases.
Sunday, September 8, 2013
Syria, International Law, and Humanitarian Intervention
As long ago as the mid-19th century, the British philosopher and uber-ethicist John Stuart Mill saw the need for a doctrine of humanitarian intervention in international law. It was “grave error,” Mill wrote, to assume that the same doctrine of non-intervention applicable to civilized nations also applies in relations between “civilized nations” and “barbarians.”
Mill’s formulation provided a convenient rationalization for British and French imperialism and for the United States’ turn-of-the-century war of conquest against Spain. But a doctrine can be misused without being wrong. The 20th century’s history of humanitarian violations teaches the need to accept the doctrine as part of customary international law — and for the United States, as the dominant global power, to play its part in putting the doctrine into practice even without formal multilateral support.
On that view, President Obama’s proposed strikes against Syria for its use of chemical weapons in its civil war passes international law muster, notwithstanding the United Nations Charter’s seeming limitations on the use of force. Just as the U.S. Constitution is not a suicide pact, the U.N. Charter cannot be interpreted as a one-sided disarmament pact by civilized nations against modern-day barbarians such as Syria’s Bashar al-Assad.
International law is not the only or the most important issue for Congress to consider as it takes up a proposed resolution authorizing use of military force in Syria. President Obama owes it to members of Congress, not to mention the American public, to use his TV interviews and televised address this week to lay out in detail the evidence supporting the accusation that Assad’s regime launched a chemical weapons attack on Aug. 21 against rebel strongholds in the Damascus suburbs. As part of that evidence dump, the administration should explain its casualty count — 1,429 deaths — that is not only implausibly precise but also significantly higher than estimates from other, western sources.
Most important, the administration needs to do a better job than it has thus far of showing that it has a strategy other than teaching Assad a lesson. Without putting boots on the ground, the administration still must show that some number of cruise missile strikes against Syrian military targets, combined with other U.S. actions, help the stated goal of replacing a dictatorial regime with a more representative, more inclusive government. And it needs to show that no other steps — such as economic sanctions or resort to the International Criminal Court, as advocated by New York Times columnist Thomas Friedman — would be effective.
In addressing these issues, however, Congress can rest comfortably with the United States’ obligations toward international law. True, the simplest legal answer for this and other humanitarian crises would be to fall back on the U.N. Charter’s Chapter VII, which permits the use of force when authorized by the Security Council (Article 42) or in individual or collective self-defense (Article 51). Almost 70 years later, however, the U.N. Charter cannot bear the full weight of addressing modern-day humanitarian crises.
The United Nations was founded, after all, by the victorious powers in a world war against nations that were committing both aggression and humanitarian violations on unprecedented scales. The five major powers, allies in that war, were each granted the power to veto any actions by the U.N. Security Council, the enforcement arm created to distinguish the new international organization from the toothless League of Nations.
Wars of aggression have gone almost out of style since then, but genocide has become more common: think Cambodia, Rwanda, Serbia. At the same time, the World War II allies divided first into ideological camps and now into geostrategic rivalries. President Obama is correct to point out that, “for a whole host of reasons,” those divisions leave the Security Council “paralyzed” in many situations. “And yet,” he adds, “we’ve got all these international norms that we’re interested in upholding.”
One of the clearest of those norms is the prohibition against the use of chemical weapons that dates from the Geneva Protocol on Gas Warfare, adopted in 1925. Obama is correct to say that this is the world’s “red line,” not his. Obama’s critics are correct to question his failure to take more decisive action toward Syria up to now. The mistakes of the past, however, will not be corrected by another.
The critics are also right to question the precedential effect of the United States’ acting without the formal approval of the Security Council or a regional body such as NATO or the Arab League. Secretary of State John Kerry was right to answer, however, that the Arab League is, for various reasons, as paralyzed as the Security Council and that the United States does have support of individual nations with more direct interests. As for precedents, Rwanda shows the costs of inaction, Kosovo its potential benefits.
The other precedent being established — seeking congressional approval for humanitarian intervention against actions that do not immediately threaten U.S. national security — has benefits as well. The president’s need to make the case to Congress strongly enough to overcome the public’s residual isolationism guards against too-easy resort to a doctrine that, for the good of international law, must be carefully cabined. The coming debates on Capitol Hill will test whether Obama can make that case and whether Congress can judge it, free of partisanship, with an eye to the United States’ interest in a better international order.
Mill’s formulation provided a convenient rationalization for British and French imperialism and for the United States’ turn-of-the-century war of conquest against Spain. But a doctrine can be misused without being wrong. The 20th century’s history of humanitarian violations teaches the need to accept the doctrine as part of customary international law — and for the United States, as the dominant global power, to play its part in putting the doctrine into practice even without formal multilateral support.
On that view, President Obama’s proposed strikes against Syria for its use of chemical weapons in its civil war passes international law muster, notwithstanding the United Nations Charter’s seeming limitations on the use of force. Just as the U.S. Constitution is not a suicide pact, the U.N. Charter cannot be interpreted as a one-sided disarmament pact by civilized nations against modern-day barbarians such as Syria’s Bashar al-Assad.
International law is not the only or the most important issue for Congress to consider as it takes up a proposed resolution authorizing use of military force in Syria. President Obama owes it to members of Congress, not to mention the American public, to use his TV interviews and televised address this week to lay out in detail the evidence supporting the accusation that Assad’s regime launched a chemical weapons attack on Aug. 21 against rebel strongholds in the Damascus suburbs. As part of that evidence dump, the administration should explain its casualty count — 1,429 deaths — that is not only implausibly precise but also significantly higher than estimates from other, western sources.
Most important, the administration needs to do a better job than it has thus far of showing that it has a strategy other than teaching Assad a lesson. Without putting boots on the ground, the administration still must show that some number of cruise missile strikes against Syrian military targets, combined with other U.S. actions, help the stated goal of replacing a dictatorial regime with a more representative, more inclusive government. And it needs to show that no other steps — such as economic sanctions or resort to the International Criminal Court, as advocated by New York Times columnist Thomas Friedman — would be effective.
In addressing these issues, however, Congress can rest comfortably with the United States’ obligations toward international law. True, the simplest legal answer for this and other humanitarian crises would be to fall back on the U.N. Charter’s Chapter VII, which permits the use of force when authorized by the Security Council (Article 42) or in individual or collective self-defense (Article 51). Almost 70 years later, however, the U.N. Charter cannot bear the full weight of addressing modern-day humanitarian crises.
The United Nations was founded, after all, by the victorious powers in a world war against nations that were committing both aggression and humanitarian violations on unprecedented scales. The five major powers, allies in that war, were each granted the power to veto any actions by the U.N. Security Council, the enforcement arm created to distinguish the new international organization from the toothless League of Nations.
Wars of aggression have gone almost out of style since then, but genocide has become more common: think Cambodia, Rwanda, Serbia. At the same time, the World War II allies divided first into ideological camps and now into geostrategic rivalries. President Obama is correct to point out that, “for a whole host of reasons,” those divisions leave the Security Council “paralyzed” in many situations. “And yet,” he adds, “we’ve got all these international norms that we’re interested in upholding.”
One of the clearest of those norms is the prohibition against the use of chemical weapons that dates from the Geneva Protocol on Gas Warfare, adopted in 1925. Obama is correct to say that this is the world’s “red line,” not his. Obama’s critics are correct to question his failure to take more decisive action toward Syria up to now. The mistakes of the past, however, will not be corrected by another.
The critics are also right to question the precedential effect of the United States’ acting without the formal approval of the Security Council or a regional body such as NATO or the Arab League. Secretary of State John Kerry was right to answer, however, that the Arab League is, for various reasons, as paralyzed as the Security Council and that the United States does have support of individual nations with more direct interests. As for precedents, Rwanda shows the costs of inaction, Kosovo its potential benefits.
The other precedent being established — seeking congressional approval for humanitarian intervention against actions that do not immediately threaten U.S. national security — has benefits as well. The president’s need to make the case to Congress strongly enough to overcome the public’s residual isolationism guards against too-easy resort to a doctrine that, for the good of international law, must be carefully cabined. The coming debates on Capitol Hill will test whether Obama can make that case and whether Congress can judge it, free of partisanship, with an eye to the United States’ interest in a better international order.
Tuesday, September 3, 2013
Ginsburg’s Unseemly Attack on “Activist” Court
Politicians speak hyperbole as their native tongue, but Supreme Court justices are normally more careful with their facts and opinions. Over the past two months, however, Justice Ruth Bader Ginsburg has behaved more like a politician than a judge with an exaggerated attack on the Roberts Court as “one of the most activist” in history.
Ginsburg made the criticism in a succession of media interviews over the past two months. The accusation is unsupported by the numbers and is all the more unseemly because Ginsburg paired it with a vow to stay on the Court, in effect as the leader of the opposition, as long as her physical and mental health hold up.
“Activist” is an inherently imprecise term, but Ginsburg provided an objective metric: laws overturned. “If you take activism to mean readiness to strike down laws passed by Congress, I think the current Court will go down in history as one of the most active courts in that regard,” Ginsburg told USA Today’s Richard Wolf.
By that criterion, the Roberts Court thus far has been less activist than the previous Rehnquist and Burger Courts. In eight terms, the Roberts Court has explicitly ruled federal laws unconstitutional in 12 cases — or one-and-a-half per term. A compilation by the Library of Congress shows that the Rehnquist Court overturned 38 laws in Rehnquist’s 19 terms as chief justice: two per term. The Burger Court, in 17 terms, overturned federal laws in 31 cases — just shy of two per term.
No doubt, the Roberts Court has more than a touch of judicial activism. With little respect for Congress or precedent, the Court in 2010 invalidated the federal ban on corporate and labor union spending in political campaigns, narrowed the Medicaid enforcement provision of President Obama’s Affordable Care Act in 2012, and nullified part of the Voting Rights Act as the 2012-2013 term ended in June.
Three of the other Roberts Court decisions overturning federal laws, however, apply straightforward First Amendment principles in striking down free-speech restrictions. Ginsburg joined all three. Two others, barely noticed in general news media, struck down provisions dating from the 1980s that in one case expanded federal bankruptcy jurisdiction and in another limited the evidence for federal judges to consider in criminal sentencing. Ginsburg dissented in the former and joined the latter.
Ginsburg also joined two more newsworthy Roberts Court decisions striking down federal laws: the 2008 decision to eliminate restrictions on habeas corpus rights for Guantanamo prisoners and this year’s decision to strike down the Defense of Marriage Act (DOMA). Ginsburg did not write separately in either case. But in oral arguments in the DOMA case Ginsburg made absolutely clear that she would vote to strike it down as unconstitutional discrimination against same-sex couples despite its nearly unanimous enactment by Congress.
In all, Ginsburg joined six of the 12 Roberts Court decisions striking down federal laws. And Ginsburg would have nullified one federal law that the Court, in 2007, upheld: the federal ban on so-called partial birth abortions.
In terms of state laws ruled unconstitutional, the Roberts Court pales in comparison to the two previous courts, according to a compilation by the legal web site Justia.com. The Rehnquist Court ruled state laws unconstitutional in 87 cases — more than four rulings per term; the Burger Court count is 235 – or nearly 14 per term. The Roberts Court has overturned state laws so far only in 11 decisions — fewer than one-and-a-half per term. Ginsburg joined five of those rulings, dissented in six.
Raw numbers are not the only measure of the Court’s activism. Even with relatively few decisions, the Supreme Court engaged in strikingly bold bursts of activism by striking down the post-Civil War civil rights laws in the 19th century, nullifying the federal income tax and other progressive legislation in the late 19th and early 20th centuries, and overturning major New Deal programs in a three-year span in the mid-1930s. The Warren Court’s statistics on laws overturned — 17 federal laws, 128 state statutes— understate the profound impact of its decisions outlawing racial segregation, mandating legislative reapportionment, and revolutionizing criminal procedure.
Ginsburg would have dissented from those early bursts of activism, but she surely would have joined the celebrated Warren Court rulings. And, tellingly, Ginsburg first came to national prominence by crafting the legal strategy that led the Court to strike down federal and state laws that discriminated on the basis of sex.
Ginsburg’s media offensive began with an interview to Reuters’ veteran Supreme Court watcher Joan Biskupic, in which the 80-year-old justice signaled her intention to stay on the Court despite any pressure from liberals to step aside to allow Obama to appoint a like-minded successor. She repeated that vow along with the criticism of the Roberts Court’s activism in successive interviews with USA Today, the Associated Press, the New York Times, and Bloomberg News.
By preempting talk of retirement, Ginsburg appears to be trying to make herself the indispensable justice for the liberal wing. But playing the outside game seems ill designed to gain influence with justices in the other bloc, especially Anthony M. Kennedy — the only justice in the majority in all of the Roberts Court rulings striking down federal or state laws. With life tenure, however, Ginsburg is accountable only to herself and her own sense of how history will judge her two-decades-and-counting as a Supreme Court justice.
Ginsburg made the criticism in a succession of media interviews over the past two months. The accusation is unsupported by the numbers and is all the more unseemly because Ginsburg paired it with a vow to stay on the Court, in effect as the leader of the opposition, as long as her physical and mental health hold up.
“Activist” is an inherently imprecise term, but Ginsburg provided an objective metric: laws overturned. “If you take activism to mean readiness to strike down laws passed by Congress, I think the current Court will go down in history as one of the most active courts in that regard,” Ginsburg told USA Today’s Richard Wolf.
By that criterion, the Roberts Court thus far has been less activist than the previous Rehnquist and Burger Courts. In eight terms, the Roberts Court has explicitly ruled federal laws unconstitutional in 12 cases — or one-and-a-half per term. A compilation by the Library of Congress shows that the Rehnquist Court overturned 38 laws in Rehnquist’s 19 terms as chief justice: two per term. The Burger Court, in 17 terms, overturned federal laws in 31 cases — just shy of two per term.
No doubt, the Roberts Court has more than a touch of judicial activism. With little respect for Congress or precedent, the Court in 2010 invalidated the federal ban on corporate and labor union spending in political campaigns, narrowed the Medicaid enforcement provision of President Obama’s Affordable Care Act in 2012, and nullified part of the Voting Rights Act as the 2012-2013 term ended in June.
Three of the other Roberts Court decisions overturning federal laws, however, apply straightforward First Amendment principles in striking down free-speech restrictions. Ginsburg joined all three. Two others, barely noticed in general news media, struck down provisions dating from the 1980s that in one case expanded federal bankruptcy jurisdiction and in another limited the evidence for federal judges to consider in criminal sentencing. Ginsburg dissented in the former and joined the latter.
Ginsburg also joined two more newsworthy Roberts Court decisions striking down federal laws: the 2008 decision to eliminate restrictions on habeas corpus rights for Guantanamo prisoners and this year’s decision to strike down the Defense of Marriage Act (DOMA). Ginsburg did not write separately in either case. But in oral arguments in the DOMA case Ginsburg made absolutely clear that she would vote to strike it down as unconstitutional discrimination against same-sex couples despite its nearly unanimous enactment by Congress.
In all, Ginsburg joined six of the 12 Roberts Court decisions striking down federal laws. And Ginsburg would have nullified one federal law that the Court, in 2007, upheld: the federal ban on so-called partial birth abortions.
In terms of state laws ruled unconstitutional, the Roberts Court pales in comparison to the two previous courts, according to a compilation by the legal web site Justia.com. The Rehnquist Court ruled state laws unconstitutional in 87 cases — more than four rulings per term; the Burger Court count is 235 – or nearly 14 per term. The Roberts Court has overturned state laws so far only in 11 decisions — fewer than one-and-a-half per term. Ginsburg joined five of those rulings, dissented in six.
Raw numbers are not the only measure of the Court’s activism. Even with relatively few decisions, the Supreme Court engaged in strikingly bold bursts of activism by striking down the post-Civil War civil rights laws in the 19th century, nullifying the federal income tax and other progressive legislation in the late 19th and early 20th centuries, and overturning major New Deal programs in a three-year span in the mid-1930s. The Warren Court’s statistics on laws overturned — 17 federal laws, 128 state statutes— understate the profound impact of its decisions outlawing racial segregation, mandating legislative reapportionment, and revolutionizing criminal procedure.
Ginsburg would have dissented from those early bursts of activism, but she surely would have joined the celebrated Warren Court rulings. And, tellingly, Ginsburg first came to national prominence by crafting the legal strategy that led the Court to strike down federal and state laws that discriminated on the basis of sex.
Ginsburg’s media offensive began with an interview to Reuters’ veteran Supreme Court watcher Joan Biskupic, in which the 80-year-old justice signaled her intention to stay on the Court despite any pressure from liberals to step aside to allow Obama to appoint a like-minded successor. She repeated that vow along with the criticism of the Roberts Court’s activism in successive interviews with USA Today, the Associated Press, the New York Times, and Bloomberg News.
By preempting talk of retirement, Ginsburg appears to be trying to make herself the indispensable justice for the liberal wing. But playing the outside game seems ill designed to gain influence with justices in the other bloc, especially Anthony M. Kennedy — the only justice in the majority in all of the Roberts Court rulings striking down federal or state laws. With life tenure, however, Ginsburg is accountable only to herself and her own sense of how history will judge her two-decades-and-counting as a Supreme Court justice.
Sunday, August 25, 2013
Manning's Sentence Is Strong Signal to Whistleblowers
When the Nixon administration tried to stop the New York Times and Washington Post from publishing the Pentagon Papers, government lawyers argued that the information “could” or “might” prejudice national security. The Supreme Court rightly said that was not enough to justify the unprecedented step of ordering the newspapers, in effect, to stop the presses.
Four decades later, the government had a much easier case in prosecuting then-Pfc. Bradley Manning for leaking hundreds of thousands of classified, computerized documents to Wikileaks. As in the Pentagon Papers case, however, the government lawyers have yet to show — at least on the public record — that the publication of this classified information has actually harmed the United States.
The findings that U.S. Army Judge Denise Lind set out after having convicted Manning of multiple counts are silent on any actual harm to U.S. interests from Manning’s leaks. Here, complete with legal verbiage, is Manning’s most serious offense: “Wrongfully and Wantonly Causing Publication of Intelligence Belonging to the United States on the Internet Knowing the Intelligence is Accessible to the Enemy to the Prejudice of Good Order and Discipline in the Armed Forces or of a Nature to Bring Discredit Upon the Armed Forces.”
On that so-called espionage count, Lind found that Manning “had reason to believe” that the information “could be used to the injury of the United States or the advantage of any foreign nation.” But, she added, “the government is not required to prove that the information was actually used to injure the United States.” None of Manning’s other offenses — conversion, transmitting defense information, computer fraud, and violation of a “lawful general regulation” — required such proof either. Lind rejected the government’s most serious charge: aiding the enemy.
Manning, who now identifies as a woman and calls herself “Chelsea,” apologized during the sentencing hearing for her actions and acknowledged they were wrong. “I’m sorry that my actions hurt people,” Manning testified in a three-minute, unsworn statement from the witness stand. “I’m sorry that they hurt the United States.”
Manning’s contrition before a judge with the power to sentence her to up to 90 years’ imprisonment made perfect sense as a legal strategy. But, as Manning supporter Rainey Reitman points out in an article for the Freedom of the Press Foundation, Manning is actually contradicting earlier statements by current and former government officials that the information was not damaging U.S. interests.
Back when Wikileaks was publishing the fruits of Manning’s data dump, officials up to and including Vice President Joe Biden pooh-poohed any fears that the leaks were causing harm. “I don’t think there is any substantive damage, no,” Biden told MSNBC in an interview on Dec. 16, 2010.
Publicly, the State Department at the time was claiming “substantial damage” from the disclosures of the cables. But Reuters quoted congressional sources as saying that State Department briefers had privately described the leak just as Biden had: embarrassing but not damaging. The stronger public statements, the congressional sources explained, were needed to bolster legal efforts to shut down the Wikileaks web site and/or prosecute the leakers.
Manning had been identified by then as the leaker — fingered in May 2010 by an ex-hacker, Adrian Lamo, who feared Manning’s disclosures were putting Americans’ lives at risk. Manning, dealing with his own emotional difficulties while stationed in Iraq, had sought out Lamo through cyberspace as a fellow sufferer of Asperger’s disorder. In their computer exchanges, Manning took credit for Wikileaks’ disclosure of an indiscriminate U.S. helicopter airstrike in suburban Baghdad in July 2007 that took 12 lives, including two Reuters news agency employees.
Lamo, the self-confessed hacker of the New York Times’s computer system, had no information, only a layperson’s intuition, about the potential risk of Manning’s disclosures. Three years later, the government has yet to produce any evidence that the leaks resulted in any loss of life. Indeed, as Rainey points out, now retired Brig. Gen. Robert Carr, who had headed the Wikileaks “mitigation” effort, acknowledged during Manning’s sentencing hearing that he knew of no one killed as a result of having been identified in the so-called Afghan War Logs that Manning had leaked.
Weighed against what former Secretary of Defense Donald Rumsfeld candidly described as the “overwrought” reaction to the Wikileaks disclosures are the benefits to the public’s right to know. The so-called Iraqi War Logs, for example, indicate that the United States undercounted civilian deaths in post-Saddam Iraq and failed to investigate reports of abuse, torture, rape, and even murder by Iraqi police. The State Department cables have been “at least partially successful” in providing more “transparency” to international politics, according to Joshua Keating, associate editor of Foreign Policy.
Lind may or may not have taken all this into consideration in sentencing Manning to 35 years’ imprisonment [Aug. 21]; she said nothing to explain her reasons. The sentence was less than the 60 years the government had asked for — and less, according to Manning’s attorney, David Coombs, than the government had offered in a plea bargain. Still, it is the stiffest sentence ever for releasing classified documents. That will send a powerful warning against any future whistleblower who, like Manning, might think that exposing possible government wrongdoing will help make the world a better place.
Four decades later, the government had a much easier case in prosecuting then-Pfc. Bradley Manning for leaking hundreds of thousands of classified, computerized documents to Wikileaks. As in the Pentagon Papers case, however, the government lawyers have yet to show — at least on the public record — that the publication of this classified information has actually harmed the United States.
The findings that U.S. Army Judge Denise Lind set out after having convicted Manning of multiple counts are silent on any actual harm to U.S. interests from Manning’s leaks. Here, complete with legal verbiage, is Manning’s most serious offense: “Wrongfully and Wantonly Causing Publication of Intelligence Belonging to the United States on the Internet Knowing the Intelligence is Accessible to the Enemy to the Prejudice of Good Order and Discipline in the Armed Forces or of a Nature to Bring Discredit Upon the Armed Forces.”
On that so-called espionage count, Lind found that Manning “had reason to believe” that the information “could be used to the injury of the United States or the advantage of any foreign nation.” But, she added, “the government is not required to prove that the information was actually used to injure the United States.” None of Manning’s other offenses — conversion, transmitting defense information, computer fraud, and violation of a “lawful general regulation” — required such proof either. Lind rejected the government’s most serious charge: aiding the enemy.
Manning, who now identifies as a woman and calls herself “Chelsea,” apologized during the sentencing hearing for her actions and acknowledged they were wrong. “I’m sorry that my actions hurt people,” Manning testified in a three-minute, unsworn statement from the witness stand. “I’m sorry that they hurt the United States.”
Manning’s contrition before a judge with the power to sentence her to up to 90 years’ imprisonment made perfect sense as a legal strategy. But, as Manning supporter Rainey Reitman points out in an article for the Freedom of the Press Foundation, Manning is actually contradicting earlier statements by current and former government officials that the information was not damaging U.S. interests.
Back when Wikileaks was publishing the fruits of Manning’s data dump, officials up to and including Vice President Joe Biden pooh-poohed any fears that the leaks were causing harm. “I don’t think there is any substantive damage, no,” Biden told MSNBC in an interview on Dec. 16, 2010.
Publicly, the State Department at the time was claiming “substantial damage” from the disclosures of the cables. But Reuters quoted congressional sources as saying that State Department briefers had privately described the leak just as Biden had: embarrassing but not damaging. The stronger public statements, the congressional sources explained, were needed to bolster legal efforts to shut down the Wikileaks web site and/or prosecute the leakers.
Manning had been identified by then as the leaker — fingered in May 2010 by an ex-hacker, Adrian Lamo, who feared Manning’s disclosures were putting Americans’ lives at risk. Manning, dealing with his own emotional difficulties while stationed in Iraq, had sought out Lamo through cyberspace as a fellow sufferer of Asperger’s disorder. In their computer exchanges, Manning took credit for Wikileaks’ disclosure of an indiscriminate U.S. helicopter airstrike in suburban Baghdad in July 2007 that took 12 lives, including two Reuters news agency employees.
Lamo, the self-confessed hacker of the New York Times’s computer system, had no information, only a layperson’s intuition, about the potential risk of Manning’s disclosures. Three years later, the government has yet to produce any evidence that the leaks resulted in any loss of life. Indeed, as Rainey points out, now retired Brig. Gen. Robert Carr, who had headed the Wikileaks “mitigation” effort, acknowledged during Manning’s sentencing hearing that he knew of no one killed as a result of having been identified in the so-called Afghan War Logs that Manning had leaked.
Weighed against what former Secretary of Defense Donald Rumsfeld candidly described as the “overwrought” reaction to the Wikileaks disclosures are the benefits to the public’s right to know. The so-called Iraqi War Logs, for example, indicate that the United States undercounted civilian deaths in post-Saddam Iraq and failed to investigate reports of abuse, torture, rape, and even murder by Iraqi police. The State Department cables have been “at least partially successful” in providing more “transparency” to international politics, according to Joshua Keating, associate editor of Foreign Policy.
Lind may or may not have taken all this into consideration in sentencing Manning to 35 years’ imprisonment [Aug. 21]; she said nothing to explain her reasons. The sentence was less than the 60 years the government had asked for — and less, according to Manning’s attorney, David Coombs, than the government had offered in a plea bargain. Still, it is the stiffest sentence ever for releasing classified documents. That will send a powerful warning against any future whistleblower who, like Manning, might think that exposing possible government wrongdoing will help make the world a better place.
Monday, August 19, 2013
Policing Stop-and-Frisk in New York City
A Cleveland police officer, patrolling his regular beat, observed two men walking up and down in front of a store window a dozen times, conferring with each other after each of the walk-bys. The officer, suspecting the two men were “casing the joint,” stopped to question them and, after patting them down, discovered that both of the men, John Terry and Richard Chilton, were carrying weapons. Terry appealed his subsequent weapons conviction to the U.S. Supreme Court, which in Terry v. Ohio (1968) upheld the conviction after concluding that the officer had reasonable grounds for the initial “stop and frisk.”
Thus was born the Terry stop: the Supreme Court-approved practice of stopping an individual if an officer has a reasonable suspicion of criminal activity and frisking the individual if the officer has a reasonable fear the individual could be armed.
Four decades later, three New York City police officers stopped David Floyd as he was walking from the subway toward home in the Bronx. The officers asked Floyd for identification and, fearful after he reached inside a pants pocket for his cell phone, patted him down for weapons. No weapon was found, and no charge was filed. Floyd asked for the officers’ names and badge numbers, but they gave only their last names and badge numbers that did not match the names given.
Floyd’s encounter with the NYPD in April 2007 was one of more than 4.4 million stops that New York City police officers conducted in an eight-year period under an aggressive policy initiated by Police Commissioner Raymond Kelly and supported and now vigorously defended by Mayor Michael Bloomberg. As in Floyd’s case, the vast majority of the stops — almost 90 percent — resulted in no charges whatsoever. In about half of the stops, police also conducted a “frisk,” but weapons were found in only 1.5 percent of the patdowns.
Those are the statistics that a federal judge, Shira Scheindlin, relied on last week [Aug. 12] in a 195-page ruling in a class action brought in Floyd’s name, Floyd v. New York, that declared the NYPD’s stop-and-frisk practices unconstitutional. The numbers speak for themselves. “How reasonable is it if 90 percent of the time you’re wrong?” Wall Street Journal reporter Devlin Barrett asked rhetorically in an appearance on the public radio program To the Point.
The numbers are even more telling when broken down by race. More than half of the stops – 52 percent – involved African Americans, in a city where blacks make up about one-fourth of the total population. Hispanics were stopped in 31 percent of the encounters; they comprise about 29 percent of the city’s population. As Scheindlin found, the statistics indicate a pattern of racial profiling by the police.
Bloomberg, in the final months of his 12-year tenure, has defended the police department’s policies — what he calls “stop, question, and frisk” — as helping make New York the safest big city in the country. New York in fact has a low rate of homicides or other violent crimes compared to many big cities, but Bloomberg is taking credit for lowering the city’s crime rate in a decade when the rate was declining nationwide. Moreover, Scheindlin found no reason to believe that the stop-and-frisk policies were responsible for reducing crime. Instead, she said the policies may be counterproductive by reducing citizen cooperation with police, especially in the minority neighborhoods singled out for the tactic.
Bloomberg also has defended the city’s policies by stressing the supposedly detailed reports required for all stops — proof, he suggests, that the city has nothing to hide or be ashamed of. But Scheindlin was unimpressed after her examination of the reports: UF-250’s, in police department parlance. First, as in Floyd’s case, some number of stops are never documented at all. Moreover, the information in the UF-250’s is often limited. Instead of providing a narrative, officers typically simply check off boxes to indicate the reason for the stop; “furtive movements” and “high crime areas” are the ones most frequently given. And even though Terry requires police have reason to suspect criminal activity, Scheindlin found that officers failed to specify any suspected crime in slightly over one-third of the reports.
Along with her ruling on the city’s liability, Scheindlin issued a companion 39-page remedial order that designated Peter Zimroth, a private lawyer who was formerly the city’s corporation counsel and a chief assistant district attorney, as a monitor to help institute and oversee reforms. She left most of the details to be worked out, but as one immediate step she ordered that officers in one precinct in each of New York’s five boroughs to be equipped with body cameras to record all police encounters with civilians. Scheindlin said she will weigh later whether the benefits in reducing unconstitutional stops outweigh any financial or administrative hardships.
The city is vowing to appeal. Scheindlin is aptly described in her Wikipedia biography as an “aggressive” judge, and she has been reversed in several high-profile decisions. But several of the candidates vying to succeed Bloomberg responded last week by embracing the need to reform stop-and-frisk policies. Scheindlin stressed that she was not prohibiting stop-and-frisk, only insisting that the tactic be employed within constitutional limits. Bloomberg could serve his city better by cooperating toward that goal instead of defending a policy that, on close examination, seems to have gone beyond constitutional limits.
Thus was born the Terry stop: the Supreme Court-approved practice of stopping an individual if an officer has a reasonable suspicion of criminal activity and frisking the individual if the officer has a reasonable fear the individual could be armed.
Four decades later, three New York City police officers stopped David Floyd as he was walking from the subway toward home in the Bronx. The officers asked Floyd for identification and, fearful after he reached inside a pants pocket for his cell phone, patted him down for weapons. No weapon was found, and no charge was filed. Floyd asked for the officers’ names and badge numbers, but they gave only their last names and badge numbers that did not match the names given.
Floyd’s encounter with the NYPD in April 2007 was one of more than 4.4 million stops that New York City police officers conducted in an eight-year period under an aggressive policy initiated by Police Commissioner Raymond Kelly and supported and now vigorously defended by Mayor Michael Bloomberg. As in Floyd’s case, the vast majority of the stops — almost 90 percent — resulted in no charges whatsoever. In about half of the stops, police also conducted a “frisk,” but weapons were found in only 1.5 percent of the patdowns.
Those are the statistics that a federal judge, Shira Scheindlin, relied on last week [Aug. 12] in a 195-page ruling in a class action brought in Floyd’s name, Floyd v. New York, that declared the NYPD’s stop-and-frisk practices unconstitutional. The numbers speak for themselves. “How reasonable is it if 90 percent of the time you’re wrong?” Wall Street Journal reporter Devlin Barrett asked rhetorically in an appearance on the public radio program To the Point.
The numbers are even more telling when broken down by race. More than half of the stops – 52 percent – involved African Americans, in a city where blacks make up about one-fourth of the total population. Hispanics were stopped in 31 percent of the encounters; they comprise about 29 percent of the city’s population. As Scheindlin found, the statistics indicate a pattern of racial profiling by the police.
Bloomberg, in the final months of his 12-year tenure, has defended the police department’s policies — what he calls “stop, question, and frisk” — as helping make New York the safest big city in the country. New York in fact has a low rate of homicides or other violent crimes compared to many big cities, but Bloomberg is taking credit for lowering the city’s crime rate in a decade when the rate was declining nationwide. Moreover, Scheindlin found no reason to believe that the stop-and-frisk policies were responsible for reducing crime. Instead, she said the policies may be counterproductive by reducing citizen cooperation with police, especially in the minority neighborhoods singled out for the tactic.
Bloomberg also has defended the city’s policies by stressing the supposedly detailed reports required for all stops — proof, he suggests, that the city has nothing to hide or be ashamed of. But Scheindlin was unimpressed after her examination of the reports: UF-250’s, in police department parlance. First, as in Floyd’s case, some number of stops are never documented at all. Moreover, the information in the UF-250’s is often limited. Instead of providing a narrative, officers typically simply check off boxes to indicate the reason for the stop; “furtive movements” and “high crime areas” are the ones most frequently given. And even though Terry requires police have reason to suspect criminal activity, Scheindlin found that officers failed to specify any suspected crime in slightly over one-third of the reports.
Along with her ruling on the city’s liability, Scheindlin issued a companion 39-page remedial order that designated Peter Zimroth, a private lawyer who was formerly the city’s corporation counsel and a chief assistant district attorney, as a monitor to help institute and oversee reforms. She left most of the details to be worked out, but as one immediate step she ordered that officers in one precinct in each of New York’s five boroughs to be equipped with body cameras to record all police encounters with civilians. Scheindlin said she will weigh later whether the benefits in reducing unconstitutional stops outweigh any financial or administrative hardships.
The city is vowing to appeal. Scheindlin is aptly described in her Wikipedia biography as an “aggressive” judge, and she has been reversed in several high-profile decisions. But several of the candidates vying to succeed Bloomberg responded last week by embracing the need to reform stop-and-frisk policies. Scheindlin stressed that she was not prohibiting stop-and-frisk, only insisting that the tactic be employed within constitutional limits. Bloomberg could serve his city better by cooperating toward that goal instead of defending a policy that, on close examination, seems to have gone beyond constitutional limits.
Monday, August 12, 2013
Holder Wants to Accomplish More Before Leaving
Attorney General Eric Holder appears to have served notice to his critics that he is not going anywhere soon by announcing a laundry list of criminal justice reforms in a speech to the American Bar Association (ABA) on Monday [Aug. 12]. At the top of the list is a sensible but likely controversial move to combat prison overcrowding by limiting the impact of harsh mandatory sentence provisions in run-of-the-mill federal drug cases.
In an address to the ABA’s House of Delegates, Holder correctly noted the expensive and counterproductive practice of overincarceration in the United States — at the federal level and in many states. As Holder put it, the United States is “coldly efficient” at putting criminals behind bars and keeping them there. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said.
With the highest incarceration rate of any country, the United States houses almost one-fourth of the world’s prisoners but has only one-twentieth of the world’s population, Holder noted. The federal prison population has increased 800 percent since 1980 while the country’s population has increased only about one-third. The 219,000 federal inmates fill federal prisons 40 percent beyond their intended capacity.
Speaking in San Francisco, Holder passed over — at least in his prepared text — specific mention of California’s own severe prison crisis. Two years ago, the Supreme Court upheld a well-documented order by a three-judge federal court that the state reduce prison population to 110,000 — or merely 30 percent above capacity. California Gov. Jerry Brown, once a liberal Democrat, insists the state has done enough by bringing the population down to 120,000. But the federal court refused to change its order and the Supreme Court earlier this month [Aug. 2] turned down the state’s appeal.
As Holder aptly noted, federal prison overcrowding has been driven by an increase in federal drug prosecutions and in particular by the long mandatory minimum sentences enacted by Congress in the 1980s and ’90s. Drug offenders comprise about half the federal prison population: some are in for serious drug trafficking, but many — probably most — are not. But the mandatory sentencing laws give judges little leeway for tempering the excesses that Congress has enacted.
Congress cannot repeal prosecutorial discretion, however. So Holder is moving to ease the sentencing law by directing U.S. attorneys in most cases to omit from formal charges the specific quantity of drug seized or sold and thus to avoid triggering the mandatory minimum prescribed for specified quantities. That policy, he said, will apply to low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels.
Holder said the Justice Department is also revising its policies for considering compassionate release for inmates who pose no threat to the public. The Bureau of Prisons already in April expanded compassionate release for medical reasons. Holder announced a further expansion for elderly inmates who did not commit violent crimes and who have served “significant portions” of their sentences. In addition, the Justice Department is looking into expanding diversion programs such as drug treatment or community service programs that serve as effective alternatives to incarceration.
Fittingly, Holder, the first African American to serve as attorney general, also addressed the continuing racial disparity in sentencing between white and black inmates. He cited one report, released in February, that indicates black male offenders in recent years have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. “This isn’t just unacceptable,” Holder said. “It is shameful.” For now, the only reform is to direct a group of U.S. attorneys to examine the disparities and develop recommendations on how to address them.
Holder has been a political lightning rod, as almost any attorney general is bound to be. He reportedly considered leaving at the end of Obama’s first term, but agreed to the president’s request to stay. White House aides have grumbled, anonymously, that Holder has a political tin ear. As one example, Holder retreated in the face of overwhelming political opposition from his decision in November 2010 to try the accused 9/11 mastermind Khalid Sheikh Mohammed in a federal court in New York City. More recently, Holder antagonized the news media by allowing the Justice Department to issue an intrusive subpoena against the Associated Press in a leak investigation.
In announcing the criminal justice initiatives, however, Holder signaled that he and Obama are tied at the hip on the issues. Holder recalled Obama’s work on such issues as a community organizer and in the Illinois legislature. He also noted the administration’s successful efforts in Obama’s first term to reduce the racial disparity in sentencing for crack versus powdered cocaine. And he made clear that “the president and I” had discussed and decided on the actions being taken and the proposals being studied.
The inside-the-beltway speculation about Obama’s tenure resurfaced in the spring in, among other places, a long article in The New York Times [June 4]. Unnamed West Wing aides were described in the story as wishing that Holder would go. But his former spokeswoman Tracy Schmaler told the Times that Holder is determined to stay long enough to “accomplish what he would like to do so that he could leave on his own terms.”
In an address to the ABA’s House of Delegates, Holder correctly noted the expensive and counterproductive practice of overincarceration in the United States — at the federal level and in many states. As Holder put it, the United States is “coldly efficient” at putting criminals behind bars and keeping them there. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said.
With the highest incarceration rate of any country, the United States houses almost one-fourth of the world’s prisoners but has only one-twentieth of the world’s population, Holder noted. The federal prison population has increased 800 percent since 1980 while the country’s population has increased only about one-third. The 219,000 federal inmates fill federal prisons 40 percent beyond their intended capacity.
Speaking in San Francisco, Holder passed over — at least in his prepared text — specific mention of California’s own severe prison crisis. Two years ago, the Supreme Court upheld a well-documented order by a three-judge federal court that the state reduce prison population to 110,000 — or merely 30 percent above capacity. California Gov. Jerry Brown, once a liberal Democrat, insists the state has done enough by bringing the population down to 120,000. But the federal court refused to change its order and the Supreme Court earlier this month [Aug. 2] turned down the state’s appeal.
As Holder aptly noted, federal prison overcrowding has been driven by an increase in federal drug prosecutions and in particular by the long mandatory minimum sentences enacted by Congress in the 1980s and ’90s. Drug offenders comprise about half the federal prison population: some are in for serious drug trafficking, but many — probably most — are not. But the mandatory sentencing laws give judges little leeway for tempering the excesses that Congress has enacted.
Congress cannot repeal prosecutorial discretion, however. So Holder is moving to ease the sentencing law by directing U.S. attorneys in most cases to omit from formal charges the specific quantity of drug seized or sold and thus to avoid triggering the mandatory minimum prescribed for specified quantities. That policy, he said, will apply to low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels.
Holder said the Justice Department is also revising its policies for considering compassionate release for inmates who pose no threat to the public. The Bureau of Prisons already in April expanded compassionate release for medical reasons. Holder announced a further expansion for elderly inmates who did not commit violent crimes and who have served “significant portions” of their sentences. In addition, the Justice Department is looking into expanding diversion programs such as drug treatment or community service programs that serve as effective alternatives to incarceration.
Fittingly, Holder, the first African American to serve as attorney general, also addressed the continuing racial disparity in sentencing between white and black inmates. He cited one report, released in February, that indicates black male offenders in recent years have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. “This isn’t just unacceptable,” Holder said. “It is shameful.” For now, the only reform is to direct a group of U.S. attorneys to examine the disparities and develop recommendations on how to address them.
Holder has been a political lightning rod, as almost any attorney general is bound to be. He reportedly considered leaving at the end of Obama’s first term, but agreed to the president’s request to stay. White House aides have grumbled, anonymously, that Holder has a political tin ear. As one example, Holder retreated in the face of overwhelming political opposition from his decision in November 2010 to try the accused 9/11 mastermind Khalid Sheikh Mohammed in a federal court in New York City. More recently, Holder antagonized the news media by allowing the Justice Department to issue an intrusive subpoena against the Associated Press in a leak investigation.
In announcing the criminal justice initiatives, however, Holder signaled that he and Obama are tied at the hip on the issues. Holder recalled Obama’s work on such issues as a community organizer and in the Illinois legislature. He also noted the administration’s successful efforts in Obama’s first term to reduce the racial disparity in sentencing for crack versus powdered cocaine. And he made clear that “the president and I” had discussed and decided on the actions being taken and the proposals being studied.
The inside-the-beltway speculation about Obama’s tenure resurfaced in the spring in, among other places, a long article in The New York Times [June 4]. Unnamed West Wing aides were described in the story as wishing that Holder would go. But his former spokeswoman Tracy Schmaler told the Times that Holder is determined to stay long enough to “accomplish what he would like to do so that he could leave on his own terms.”
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