Topic: Law and Civil Liberties

Obama’s Clemency Project

Today, James Cole, Deputy Attorney General of the United States, announced a new “Clemency Initiative.”  The gist is that the Obama administration is soliciting more clemency petitions as a part of its “Smart on Crime” plan to address our “vastly overcrowded prison population.”

According to Cole, Obama is anxious to commute more prison sentences, but something has been amiss thus far.  To respond to Obama’s new directive, Cole tells us that a new team of lawyers will be taking over the Office of the Pardon Attorney within the Department of Justice and the new team is going to expedite clemency applications for Obama’s consideration.

The new initiative is aimed at inmates who meet the following criteria:

1.  Presently serving time federal prison.  (Inmates in state prison ineligible).

2.  Would have received a lesser sentence if current sentencing rules had been in place when they were sentenced way back when.

3.  No significant ties to gangs, cartels, or mafia families.  “Low-level” offenders.

4.  No significant criminal history.

5.  Record of good conduct while in prison.

6.  No history of violence prior to, or during, prison stay.

7.  Must have already served 10 years of prison sentence.

The administration is really hyping this initiative and raising expectations about dramatic moves by Obama as this gets underway. I remain skeptical for a few reasons.  First, I question the narrative that it has only recently occured to Obama that there ought to be more meritorious clemency petitions on his desk. 

Second, I note that the administration is expecting to receive thousands of petitions and applications.  That language is important.  Later on, Obama’s people may say, “As expected, we received thousands of applications! We never said there would be hundreds or thousands of commutations.” 

Third, there’s just no way of telling how the criteria are going to applied.  What are “significant ties” to gangs?  “Significant” criminal history?  A “history” of violence?  For example, maybe there is a guy who was caught driving a truck full of marijuana.  Maybe he was sentenced to 20 years in prison because of the amount of drugs.  Suppose he had no real ties to any gang or cartel and suppose he has already served 12 years for the non-violent offense.  Good candidate?  Wait, there’s a problem.  While in prison, he was disciplined a few times for fighting with other inmates.  (The prison authorities couldn’t tell whether the candidate was only defending himself, as he claimed, or not.)  According to a strict reading of the criteria, the candidate’s petition will fail #5 and #6 above.  But is it wise to keep a person like this locked up?

Obama deserves some credit for turning his attention to clemency.  But we will have to await his actions.  For many non-violent drug offenders, the wait has already been too long. 

For related Cato work, go here and here.  More background at the PardonPower blog.

Reflections on Schuette v. Coalition to Defend Affirmative Action

Right on cue, the New York Times editorialized this morning against yesterday’s Supreme Court decision upholding the right of Michigan’s citizens to amend their constitution to prohibit the state from engaging in affirmative action, which they did in 2006 by passing, by a large margin, a proposition prohibiting racial, gender, ethnic, and national origin preferences in public employment, education, and contracting. The Times was not alone, of course. NPR’s lament this morning was a solo interview of Lee Bollinger, president of my undergraduate alma mater, Columbia University, and the defendant in the 2003 Gratz and Grutter affirmative action decisions when he was president of the University of Michigan.

It was a bad day for affirmative action, but a good day for the Constitution. Yet neither of those commentaries, nor any of the five opinions that issued from this split decision, came to terms with the discrimination that is inherent and hence inescapable in government undertakings as such, and is at the core of this problem today.

Among other things, the editorialists at the Times note that “the justices disagreed about whose rights were at issue: the minorities who would be affected by the ban or the majority of the state’s voters who passed it.” Justice Kennedy, writing for a three-judge plurality, sided with the voters, taking no position on the constitutionally of race-conscious public practices. Justice Sotomayor, joined by Justice Ginsburg in dissent, wrote that “Our Constitution places limits on what a majority of the people may do,” such as when they pass laws that “oppress minorities,” the Times adds.

School Choice Lawsuit Explained

Last week, the New Hampshire Supreme Court heard oral arguments in Duncan v. New Hampshire, concerning the constitutionality of the “Live Free or Die” state’s trailblazing scholarship tax credit program. The Cato Institute filed an amicus brief in support of the program. Over at the Friedman Foundation’s blog, I summarize the law’s history and the primary legal arguments on each side, including legal standing, public versus private money, and the use of public funds at religious schools. I conclude by outlining four possible outcomes:

1. The court rules that the plaintiffs lack standing. In this case, the trial court’s opinion would be overturned and scholarship students would be able to attend the school of their choice, religious or secular.

2. The court rules in favor of the program on the merits. That would mean either the court holds that tax credits are private money or that public money may be spent at a religious school so long as it reaches the schools in a manner that is indirect and incidental to the choices of parents. As in the first scenario, scholarship students would be able to attend the school of their choice, religious or secular.

3. The court upholds the trial court’s decision. In this case, the tax-credit scholarship program would continue as it has in the last year. The trial court forbid the use of scholarships at religious schools but allowed their use at secular private schools, out-of-district public schools, and homeschool environments. In this scenario, the Institute for Justice likely would challenge the decision in federal court for violating the Free Exercise clause of the First Amendment since such a decision would require legislative hostility toward religion rather than neutrality.

4. The court rules against the program and rejects the severability clause. The trial court found that the severability clause that the legislature had added was valid, therefore the program could continue for parents selecting secular schools or homeschooling. The state supreme court could reach the same conclusion on the merits, but reject the severability clause. This would be the most devastating outcome for educational choice in New Hampshire, as it would completely obliterate the tax-credit scholarship program.

Ideally, New Hampshire’s Supreme Court will follow the precedent of the U.S. Supreme Court and the Arizona Supreme Court by holding that taxpayers’ money is their own until it reaches the tax collector’s hand.

It’s Constitutional for Voters to Stop Their Government from Discriminating Based on Race

Today the Supreme Court finally ruled on Schuette v. Coalition to Defend Affirmative Action, in which Cato filed a brief last summer. This is the case involving a challenge to a voter-approved Michigan state constitutional amendment that bans racial discrimination (including racial preferences) in higher education. The U.S. Court of Appeals for the Sixth Circuit had somehow manage to conclude that such a law violates the Fourteenth Amendment’s Equal Protection Clause, which … requires that state governments treat everyone equally, regardless of race. The ruling was fractured – six justices voted to reverse the lower court, but for three separate reasons, plus a separate concurrence from Chief Justice John Roberts to respond to the two-justice dissent – but ultimately achieved the correct result: Michigan’s Proposal 2 stands.

But really Schuette is a much easier case than the above description might indicate. Indeed, it’s no surprise that six justices found that a state constitutional provision prohibiting racial discrimination complies with the federal constitutional provision that prohibits state racial discrimination. To hold otherwise would be to torture the English language to the point where constitutional text is absolutely meaningless. The only surprise – or, rather, the lamentable pity – is that Justices Sonia Sotomayor and Ruth Bader Ginsburg somehow agreed with the lower court’s confused determination that the Constitution requires what it barely tolerates (racial preferences in university admissions).

To quote the conclusion of Justice Antonin Scalia’s concurring opinion, for himself and Justice Clarence Thomas:

As Justice Harlan observed nearly a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.

This case was so easy precisely because it didn’t involve the fraught question of whether states can pursue race-conscious measures in order to achieve (some mythical) diversity. Instead, it was about the democratic process and whether voters can rein in the powers of their state government. The answer to that question, like the answer to the question of whether the Equal Protection Clause mandates racial preferences, is self-evident. 

Here’s the full decision, which begins with a plurality opinion by Justice Anthony Kennedy, for himself, the chief justice, and Justice Samuel Alito.

Justice Scalia on Anonymous 911 Tipsters

Today, the Supreme Court decided Prado Navarette v. California, a Fourth Amendment search case.  The Fourth Amendment limits the government’s power to stop and search people and the question in this case was whether the police overstepped their authority.

Highway patrol pulled over a pick-up truck and the police smelled, and then found, marijuana.  The men arrested later challenged the legality of the stop in court.  If the stop was illegal, the marijuana would not be admitted into evidence, and the men would probably go free.

The police said the stop was proper.  They received an anonymous 911 call from a woman who said a pickup had almost run her off the road.  The dispatcher took her information and the description of the truck.  The police found a pickup that matched the description, and then followed it for five minutes, and finally pulled it over.  Marijuana discovered, men arrested, case starts moving its way thru the courts. 

By a 5-4 vote, the Supreme Court upheld the legality of the stop.  Interestingly, the case scrambled the usual right-left split among the justices.  Justice Breyer joined Thomas, Kennedy, Roberts and Alito for the majority.  Justice Scalia joined Ginsburg, Kagan, and Sotomayor in dissent.

Here is an excerpt from Scalia’s dissenting opinion:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and

(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

Freedom of Association in the Docket

I’ve got a piece just up at the Daily Caller, drawing on two brief stories earlier today that capture nicely the growing intolerance of the Left for people and groups holding views with which they disagree. One arises from a decision by Yale’s Social Justice Network (SJN) of Dwight Hall to deny membership to the school’s Choose Life at Yale (CLAY) group.The second concerns a prosed California ban on judges affiliated with the Boy Scouts. Both illustrate how a bedrock American principle, freedom of association, is increasingly being gutted by the Left’s anti-discrimination agenda.

The Yale case is straightforward. As blogger Katherine Timpf writes, although CLAY was provisionally admitted to the network over the past year, during which its members did voluntary work with a local non-profit organization helping pregnant women, CLAY was voted out last week because, said the chair of the Yale chapter of the ACLU (itself a member), admitting CLAY would “divert funds away from groups that do important work pursuing actual social justice.”

That’s par for the course on today’s campuses. It’s training for the real world, as seen in the California case. Here, blogger Patrick Howley writes:

The California Supreme Court Advisory Committee on The Code of Judicial Ethics has proposed to classify the Boy Scouts as practicing “invidious discrimination” against gays, which would end the group’s exemption to anti-discriminatory ethics rules and would prohibit judges from being affiliated with the group.

Such a change in status could not be limited to the Boy Scouts, of course, but it’s a good start. That point was made in a letter to the committee from Catherine Short, legal director of the pro-life group Life Legal Defense Foundation. The Girl Scouts, numerous pro-life and religious groups, even the military practice “discrimination” of one kind or another, she wrote.

Years ago, when I was a scout leader as my son was growing up, I read a lengthy insert in the handbook meant for leaders. It concerned sexual exploitation and the need for scout leaders to take it seriously, prompted doubtless by experience. Given the nature of scouting activities, often isolated in the wild, and the need to assure both boys and their parents concerning the potential for abuse, even if the BSA had never taken an express position on sexual orientation, its decision to disallow gay scout leaders would not be gratuitous.

Go to the Daily Caller piece for a fuller discussion of the principles at stake here and a glimpse at how the distinction between private and public and the further distinction between reasonable and unreasonable discrimination are being undermined by a political agenda that has the freedom of private association as its ultimate target.

Federal Judge Says Thousands of Innocent Americans Behind Bars

Judge Jed Rakoff delivers a lecture.Federal Judge Jed Rakoff:

“The criminal justice system is nothing like you see on TV — it has become a system of plea bargaining,” Rakoff said.

Today, only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury. As a result, accepting a deal from prosecutors — despite one’s guilt or innocence — has become a common choice for individuals accused of a crime.

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today” …

Until extraordinary action is taken, Rakoff said little will change.

“We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”

For related Cato work, go here.