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March 11, 2019

Making (belated) case for a Prez to "choose nominees who will help dismantle mass incarceration"

James Forman has this notable new New York Times op-ed about Supreme Court nominations and the field of potential challengers to Prez Trump under the full headline "The Democratic Candidates Should Tell Us Now Who They’ll Put on the Supreme Court. And they should choose nominees who will help dismantle mass incarceration."  I recommend the piece in full, and here are excerpts:

In a country that locks up more of its citizens than any other, we should demand that candidates for president have a plan for how they will confront mass incarceration and repair the harms it has caused.  While most of the action in our criminal system takes place at the state and local level — almost 90 percent of prisoners are incarcerated in state, county, or local prisons or jails — the federal government still has an important role to play.

As Rachel Barkow, a law professor at N.Y.U., argues in her important new book, “Prisoners of Politics: Breaking the Cycle of Mass Incarceration,” judicial appointments are one of the most powerful ways that a president can influence criminal justice policy. Federal judges make rules that govern nearly every aspect of our system, from police at the beginning of the criminal process to sentencing and prison at the end.

Over the past 50 years, those rules have facilitated mass incarceration.  Judges have held that the Fourth Amendment doesn’t prohibit police from racially profiling drivers during traffic stops, that the Sixth Amendment permits trials with underfunded defense lawyers who present little evidence or argument, and that the Eighth Amendment is no bar to outrageous sentences like life without parole for drug possession.

How did our legal landscape become this anti-defendant?  In part because so many federal judges are former prosecutors. Ms. Barkow reports that 43 percent of federal judges have been prosecutors, while 10 percent have been public defenders.

A judge’s career background doesn’t always predict her rulings — Justice Sonia Sotomayor, a former prosecutor, often stands up for the accused.  But she is the exception.  Federal judicial opinions typically read as if their authors have given little thought to how an excessively punitive criminal justice system can ruin lives, decimate families and lay waste to entire communities.

To upend this dynamic, Democratic presidential candidates must commit themselves to appointing federal judges who will work to challenge mass incarceration.  This will mean going beyond anything President Barack Obama attempted. When Mr. Obama wrote a 55-page law review article on what a president could do to push criminal justice reform, he made no mention of judicial appointments.  Worse, his appointments displayed almost the same pro-prosecution bias as his predecessors’: About 40 percent of his judicial nominees had worked as prosecutors, while some 15 percent had been public defenders.

Democratic candidates should promise to eliminate this bias by reshaping the federal bench so that it has as many former public defenders as it does former prosecutors.  The Supreme Court is a good place to start.  Remember when Donald Trump courted the conservative right by announcing the names of possible nominees several months before the 2016 election?  Any Democratic candidate who wants to win the votes of a Democratic electorate increasingly focused on criminal justice reform should make a similar announcement — and populate the list with lawyers who have seen the criminal system from the standpoint of the accused.

There is no shortage of quality names.  High on my list would be Bryan Stevenson, a career death penalty opponent, consummate Supreme Court litigator and founder of the Equal Justice Initiative in Alabama.  Or Michelle Alexander, former law clerk for Justice Harry Blackmun, civil rights lawyer and author of the canonical “The New Jim Crow.” (Ms. Alexander is also an opinion columnist for The New York Times.)  Or Sherrilyn Ifill, a voting rights expert and head of the NAACP Legal Defense Fund, the civil rights firm founded by Thurgood Marshall in 1940.

These aren’t the names that typically appear on Democratic short lists. They aren’t sitting judges, and unlike many who now serve on the federal bench, they’ve taken unpopular stands, sometimes at great risk.  As a result, my list might sound unconventional, even outlandish, to those accustomed to the traditional approach to judicial selection.  But it shouldn’t.  With impeccable credentials, unassailable legal acumen and a fierce determination to take down mass incarceration, these are the future nominees whose names should start rolling off the tongues of Democratic candidates who want to be taken seriously as criminal justice reformers.

I am very pleased to see this issue getting attention as the 2020 race starts to heat up. But, as long-time readers know, I think this issue should have been a focal point for reformers for more than a decade and should lead to distinctive analysis of the work of recent Presidents. I am pleased to see some very justified criticisms of Prez Obama on this front (though the failure to mention the Garland appointment blunder is telling), but how about also criticizing Hillary Clinton for not creating a nominee list to compete with the one put out by candidate Trump? How about noting, though this does not play to political bases, that Justice Neil Gorsuch had a smidgen of defense lawyering experience in law school and he has already show a willingness to vote for more defendants' rights than his conservative colleagues?

I could go on and on, but I mostly want to praise Prof Forman for elevating these issues, issues that I hope all the Prez candidates feel bound to engage.

March 11, 2019 at 11:01 AM | Permalink

Comments

Your animus for Democrat politicians is telling.

Posted by: whatever | Mar 11, 2019 1:37:09 PM

My animus runs, whatever, to whomever disregards or is ineffectual in pursuing criminal justice reforms. Prez Obama talked a good game, but did not deliver as much as I had hoped he would. Prez Trump has talked about these issues in a lousy way, but he has delivered more than I had expected he would.

Posted by: Doug B. | Mar 12, 2019 9:54:02 AM

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