As the fall-out continues from the Supreme Court’s affirmative action decision earlier this week—see, in order, Ilya’s, my, and Wally’s Cato@Liberty comments—I was invited late yesterday to expand, very briefly, on my earlier reflections at a site called “2paragraphs”—in particular, to discuss, in two paragraphs, how public higher education transfers wealth from the lower to the upper classes of society, and how affirmative action actually harms those it’s meant to help. You’ll find that brief discussion here.
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Police Recruiting Video
The Springdale (Ark.) Police Department put together a recruitment video for new officers. The video is getting some attention—for its militarism. Take a look:
![Media Name: police-recruiting-video-ghillie.jpg](/sites/cato.org/files/styles/pubs_2x/public/wp-content/uploads/police-recruiting-video-ghillie.jpg?itok=F_zuaxQQ)
The video shows armored vehicles, flash bang grenades, and (at the 2:30 min. mark) officers dressed in ghillie suits.
The over-the-top nature of militarized policing is getting more attention. I was interviewed about another police recruiting video here. And see this recent article in Esquire, for example.
More than any organization (at least that I’m aware of), Cato has been sounding the alarm about this disturbing trend.
He Is the Very Model of a Modern Retired Justice
Justice John Paul Stevens, who left the high court in 2010, is on fire. He just released a book, Six Amendments: How and Why We Should Change the Constitution, and is now on a media tour that has thus far featured his views on campaign finance, guns, and the death penalty—the subjects of three of his proposed constitutional amendments—and, just today, marijuana. All this, and last weekend he celebrated his 94th birthday!
It might not be appropriate for Stevens to propose constitutional amendments or otherwise opine on political matters because he’s technically still an Article III federal judge (though he hasn’t been hearing cases in the lower courts as Justices Sandra Day O’Connor and David Souter have), but nevertheless the ideas he floats are worth examining. To that end, I recently wrote two op-eds related to the Stevens book tour.
The first looks at the response to the justice’s proposal to abolish the death penalty. Some have criticized him for having taken so long to reach this position, but that misunderstands what he’s saying. It’s not that capital punishment is unconstitutional—as recently as 2008 he concurred in a ruling that upheld Kentucky’s method of lethal injection—but that he feels that it’s wrong and that we need to amend the Constitution to remedy that wrong. That’s the proper response, which can be hard to understand for those who conflate law and policy.
My second piece is a quick-and-dirty critique of all six amendments, three of which are structural—(1) requiring state officials to enforce federal law; (2) doing away with political gerrymandering; and (3) eliminating state sovereign immunity—while the other three relate to individual liberties—(4) excising the Second Amendment’s protection for the right to armed self-defense; (5) allowing Congress and state legislatures to limit the money people can spend on election campaigns; and (6) outlawing the death penalty. I’m firmly against 1, 4, and 5, on balance against 6, am sympathetic to 2 but it needs to be redrafted, and support 3 (but it could go farther).
Happy belated birthday, Justice Stevens! I may not have seen things your way too often when you were on the bench, and don’t much agree with you now, but I hope that I live long enough in good health to be able to read books at your age, let alone write them.
Sentencing Reform and Clemency
Today’s Washington Post has an article about Obama’s new clemency project and talks about the work of former Catoite, Julie Stewart. Julie left Cato to start Families Against Mandatory Minimums (FAMM) in 1991. Here’s an excerpt from the Post story:
An Obama administration initiative to encourage nonviolent drug offenders in federal prison to seek clemency is likely to trigger tens of thousands of petitions, and the government could be processing applications for the next three years, according to lawyers and civil rights activists.…
“We will get tens of thousands of applications,” said Julie Stewart, president of Families Against Mandatory Minimums. “This is a very complicated, many-layered project. It will go on until the end of the Obama administration.”…
For some of the activists, the issue is deeply personal. Stewart’s brother, Jeff, was sent to federal prison for a mandatory five years for growing marijuana.
He had cultivated 365 six-inch marijuana plants in his garage in Washington state, where the drug is now legal. She thought what he did was “stupid” but assumed he would get off with a relatively light sentence because it was “only marijuana.”
“The judge said, ‘I don’t want to give you this much time but I have no choice because Congress has determined your sentence when they passed the mandatory sentencing laws for drug crimes,’ ” Stewart said. “That was the spark that ignited my mission. I always thought judges judge and determine the punishment that fits the crime. But the judge couldn’t do anything about my brother’s sentence.”…
“When I started my group, sentencing reform was such a fringe issue,” she said. “Nobody knew anything about it and nobody cared. We’ve been working so hard for so many years to build bipartisan support. People are serving decades behind bars for nonviolent mistakes they made in their 20s.”
Over at the FAMM web site, there are profiles of persons serving long sentences in federal prisons. A few weeks ago, before this week’s clemency announcement, Julie and I discussed these issues in a Cato audio roundtable discussion. We both criticized Obama for not exercising his pardon power. Were our criticisms were picked up by the NSA? n any event, you have our permission to listen to that conversation here.
Previous post on the clemency initiative here.
Further Thoughts on Schuette v. Coalition
A few more notes on the Michigan higher education racial-preferences case already covered in this space by Roger and Ilya:
Justice Scalia could hardly have set the rhetorical stage more vividly: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” Some readers will be let down to discover on proceeding further that the case doesn’t actually turn on that question: all eight participating Justices agree at least formally that the issue this time was not whether Michigan voters could end racial preferences at all, but instead whether they chose a method of doing so (constitutional amendment, in this case) that itself survives Equal Protection scrutiny.
A technicality? To me, it made the case far more interesting. So many big cases have tackled the constitutionality of racial preferences as a matter of substance that anyone who cares has had ample opportunity to reflect on those big questions. By contrast, there’s been far less attention to the Hunter/Seattle “political process” line of Equal Protection cases, by which the Court occasionally and selectively intervenes to strike down democratic processes as unfair after they arrive at the “wrong” policy conclusions. (Hunter v. Erickson (1969) and Washington v. Seattle (1982) descended from Reitman v. Mulkey (1967), in which the Warren Court decided 5–4 that California voters had no right to enshrine freedom of association in their state constitution as a way of heading off then-new “fair-housing” enactments.)
Scalia and Thomas regard this line of cases (and I agree) as unprincipled, un-administrable, and lacking in any particular stopping point: the “radical logic” of Hunter and Seattle (to quote the syllabus) would lead toward general judicial review of any and all government action on the basis of whether it has “disparate impact” on minority residents, no matter how unintended. The two Justices are accordingly ready to overrule this bad line of cases directly as a mistake of its era; the plurality, for better or worse, are not (yet) willing to do so, and instead recharacterize the cases’ facts to limit their reach in ways that neither Scalia nor Sotomayor find logically defensible.
Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best — how shall we say? — imprecise. All the Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders the word race itself in a way convenient to her purposes, using it to include Hispanics (who, as official forms remind us, “can be of any race,”) while breathing not one word about Asian-Americans (a more widely racially classified group whose situation of being both historically disadvantaged and discriminated against in university admissions cries out for recognition).
“Race matters,” indeed.
[adapted from Overlawyered]
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.