Topic: Law and Civil Liberties

Jeff Sessions Continues to Hint at Escalating the Drug War

As a candidate, Donald Trump held a relatively moderate line on drug prohibition, often arguing that issues like marijuana legalization should be left to state governments. His selection of Jeff Sessions as Attorney General, however, sent an entirely different message. Sessions is a long-time champion of the federal drug war, and since taking over the Justice Department he has continued to make statements that hint at a return to a much harsher federal approach to drug prohibition.

The Washington Post ran a story this weekend detailing some of the shifts taking place at the Department of Justice, including a green light for federal prosecutors to step up prosecutions for low-level offenses and to rely on heavy mandatory minimums to leverage plea deals. 

Sessions is also expected to take a harder line on the punishment for using and distributing marijuana, a drug he has long abhorred. His crime task force will review existing marijuana policy, according to a memo he wrote prosecutors last week.

The Post story also highlights the central role of Steven H. Cook, a former police officer and federal prosecutor, within the Sessions Department of Justice. Cook has been traveling with Sessions as the Attorney General makes the case for a return to the “tough-on-crime” posture of the 80s and 90s, arguing that efforts to treat even low-level drug offenses as anything less than violent crimes are misguided and “soft.”

Kevin Ring, president of Families Against Mandatory Minimums, expressed his alarm to the Post:

“If there was a flickering candle of hope that remained for sentencing reform, Cook’s appointment was a fire hose. There simply aren’t enough backhoes to build all the prisons it would take to realize Steve Cook’s vision for America.”

Cook, like Sessions, believes that the drug market is inherently violent and therefore the only response is to crack down:

“Drug trafficking is inherently violent. Drug traffickers are dealing in a heavy cash business. They can’t resolve disputes in court. They resolve the disputes on the street, and they resolve them through violence.”

It’s true that the black market for drugs relies on cash transactions and violence, but Cook and Sessions ignore the obvious implication. The drug market has to rely on cash transfers and violence because drugs are illegal. Drug market violence is a function of the market’s illegality, not of the drugs themselves. The same was true of alcohol distributors under prohibition. In 2017 if two alcohol distributors have a dispute, they settle it in court. If two alcohol distributors in 1929 had a dispute, they settled it on the street corner with Tommy guns and Molotov cocktails.  

Drug trafficking isn’t inherently violent; drug prohibition is.

The Trump Administration has yet to announce much in the way of concrete policy changes, but the personnel choices and the drug warrior rhetoric coming from the new administration are causes for concern looking forward.  

Sessions Wants to Escalate the Drug War

Attorney General Jeff Sessions apparently plans to entrust criminal justice “reform” to Steven H. Cook,

a former street cop [turned] … federal prosecutor … [who] saw nothing wrong with … life sentences for drug charges [or] … the huge growth of the prison population. 

This news is not surprising given Sessions’ views on the drug war (“good people don’t smoke marijuana”). But the Sessions/Cook perspective is still depressing:

Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.

The “silver” lining is that Sessions’s position–drug users are bad people–makes the issue as stark as possible: do we, as a society, believe in individual liberty or not? Much opposition to the drug war (e.g., campaigns against mandatory minimums) avoids that question.

Mandatory minimums are misguided, but mainly because drug trafficking and possession should not be crimes in the first place.  

The Drug War will end only when opponents focus on the fundamental issue: drug use is an individual decision, and government has no right to interfere.

A New Generation On the Court

By a vote of 54-45, the Senate today concluded the long, bruising battle to confirm President Donald Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court. Chief Justice John Roberts is scheduled to swear Judge Gorsuch in at 9:00 a.m. on Monday morning. We can now look forward to the Court’s return to its normal practices, taking and deciding cases without the prospect of 4-4 decisions hanging over it.

Judge Gorsuch has often been likened to Justice Antonin Scalia, whose seat he will assume, and for good reason, for he too is a textualist and an originalist in his approach to constitutional and statutory interpretation. But he comes from a later generation, one immersed in the debates between liberals, conservatives, and classical liberals over the proper interpretation of the Constitution and the role of judges under it. During his confirmation hearings, for example, Judge Gorsuch spoke favorably of the Court’s decisions in cases like Meyer v. Nebraska and Pierce v. Society of Sisters, where the Court upheld parental rights not expressly found in the Constitution. That bodes well for his appreciation for the rich moral, political, and legal theory that stands behind and informs the often broad language of the Constitution, as his own graduate study at Oxford in natural law would suggest.

Speaking of generational change, an interesting historical note was just brought to my attention by a personal friend with whom I served in the Reagan administration, Chicago attorney Joseph A. Morris. As a law clerk for Justice Anthony Kennedy, Justice Gorsuch will be the first U.S. Supreme Court justice ever to serve on the bench alongside the justice for whom he clerked. The play between them will be fun to watch! Congratulations Judge, soon to be Justice, Neil Gorsuch.

Congratulations, Justice Gorsuch

Congratulations to Neil Gorsuch, who will be sworn in Monday as the newest Supreme Court justice. Gorsuch’s mentor, Justice Byron White, liked to say that each new justice makes for a new court, and I look forward to the breath of fresh air, intellectual rigor, collegiality, and constitutional seriousness that Justice Gorsuch will bring. I’m also glad that our nation’s political debate can move beyond this toxic episode and that we won’t ever have to discuss nuclear options with regard to judges ever again. 

Nuclear Option Restores Senate Normalcy

Today’s removal of the filibuster – a parliamentary tool effectively requiring 60 votes to proceed with a vote on a matter – for Supreme Court nominees is the long overdue denouement of a process that began not with Senate Republicans’ refusal to vote on Merrick Garland, or even Harry Reid’s elimination of the filibuster for lower-court nominees in 2013, but with Reid’s unprecedented partisan filibusters in 2003. Recall especially the record 7 failed votes to end the filibuster of Miguel Estrada, who was blocked primarily because Democrats didn’t want President Bush to appoint the first Hispanic Supreme Court justice.

The Senate is now restored to the status quo ante, such that any judicial nominee with majority support will be confirmed. That’s a good thing.

RIP Partisan Filibuster (2003-2017)

Poor Defendants Should Get to Choose Their Lawyers Too

Americans may take for granted that if they’re ever accused of a crime, they can choose their own attorney to represent them. The Supreme Court has ruled that Americans have a right to counsel in serious criminal cases, and nobody seriously argues that the government should make that important decision for us.  

Yet that is exactly what happens across the country when defendants are too poor to hire their own attorneys.  While other countries such as the United Kingdom have long allowed indigent defendants to choose their own lawyers, American jurisdictions historically restrict that choice to either a court-appointed lawyer or an assigned public defender. 

In 2010, the Cato Institute published a study, Reforming Indigent Defense, which proposed a client choice model where poor persons accused of crimes would be able to choose their own attorney to represent them in court. If the accused opted for the public defender, he could make that choice, but if he wanted to explore other options, he could do that also.  The Texas Indigent Defense Commission became aware of the Cato report and decided to give it a try with a pilot program in Comal County, near San Antonio. The program went into operation in 2015.  

Today, the Justice Management Institute released an evaluation based on two years of data from the Comal Client Choice program.  The report, called The Power of Choice: The Implications of a System Where Indigent Defendants Choose Their Own Counsel, suggests that the program is working as well or better than the old system across a variety of metrics.  

The JMI study looks at four factors to assess the viability of the Comal program:

  • Does the model impact the quality of representation?  
  • Does the model produce a higher level of satisfaction and procedural justice?
  • Does the model impact case outcomes?
  • What is the impact of the model on overall cost and efficiency?

The study compares the results of Client Choice participants with the representations of defendants who chose to use the pre-existing court-appointment system.

While some aspects of representation were the same for both groups (for instance, client assessments of how hard their lawyers worked were not statistically distinguishable), participants in the Client Choice program were able to meet with their lawyers more quickly, had a stronger sense of fairness, and were more likely to either plead to lesser charges or exercise their right to trial than their peers.  The report also finds that the Client Choice program did not increase costs in the system.

Perhaps as important as any objective metric, a majority of defendants who were offered the ability to choose their own attorney opted to do so, suggesting that giving indigent defendants some agency in their choice of representation has a value in itself.  Freedom of choice matters to people.  

In too many jurisdictions, indigent criminal defense is in a state of crisis. Texas is in the vanguard with its Client Choice program. Hopefully these promising results will encourage more jurisdictions to consider injecting choice and market principles into their indigent defense systems.

 

Sessions to Review Federal Monitoring of Local Police Agencies

Yesterday, Attorney General Jeff Sessions ordered a review of existing federal consent decrees with respect to troubled police departments.  Sessions’s legal memorandum is right that primary responsibility for dysfunctional police agencies resides with local officials–mayors, police chiefs, and city councils.  Those officials too often deflect criticism of their oversight failures with loud calls for a “federal investigation.”  When the feds announce their intervention, attention shifts to what the federal findings and recommendations may be later on.  For example, Mayor Rahm Emanuel was under heavy fire after the video of the Laquan McDonald shooting was disclosed.  By agreeing to a federal investigation, Emanuel survived, at least temporarily.

Some on the right mistakenly believe that the Obama administration was “anti-police” and that the DOJ investigations exhibited some sort of bias against law enforcement.  Not true.  Sessions is making a grave mistake if he thinks previous DOJ investigations did not uncover severe problems in American policing.  The problems are there.  The real question is how to address them.  In the education area, teacher unions are the main obstacles to reform.  Police unions are the major obstacle to sensible accountability measures for police organizations.  But over the long run, local mayors and city councils must make a sustained commitment to proper oversight of police.  It is unrealistic to expect the Attorney General or a federal monitor to do their jobs.

For related Cato work, go here and here.