From CNN: Washington — A federal grand jury in Washington, DC, on Friday approved the first charges in the investigation led by special counsel Robert Mueller, according to sources briefed on the matter. The charges are still sealed under orders from a federal judge. Plans were prepared Friday for anyone charged to be taken into custody… Continue Reading →
Via Slate, a bombshell story: One or more Supreme Court justices are talking to reporters about Justice Neil Gorsuch*, the man who sits in a stolen seat. (Nina) Totenberg, a renowned court reporter who is friendly with several justices, noted that Gorsuch “ticks off some members of the court-and I don’t think it’s just the liberals.”… Continue Reading →
I thought this was heartening:
U.S. Special Counsel Robert Mueller has a distinctly modern problem. The president, judging by his tweets, could try to pardon people in his circle even before prosecutors charge anyone with a crime.
Mueller’s all-star team of prosecutors, with expertise in money laundering and foreign bribery, has an answer to that. He’s Michael Dreeben, a bookish career government lawyer with more than 100 Supreme Court appearances under his belt.
Acting as Mueller’s top legal counsel, Dreeben has been researching past pardons and determining what, if any, limits exist, according to a person familiar with the matter. Dreeben’s broader brief is to make sure the special counsel’s prosecutorial moves are legally airtight. That could include anything from strategizing on novel interpretations of criminal law to making sure the recent search warrant on ex-campaign adviser Paul Manafort’s home would stand up to an appeal.
“He’s seen every criminal case of any consequence in the last 20 years,” said Kathryn Ruemmler of Latham & Watkins LLP, who served as White House counsel under President Barack Obama. “If you wanted to do a no-knock warrant, he’d be a great guy to consult with to determine if you were exposing yourself.”
Why does President Donald Trump care about what gay people do in the bedroom? The question came up this week, when a lawyer for Trump’s Department of Justice argued that the Civil Rights Act of 1964 does not protect LGBTQ Americans from being fired because of their sexual orientation — a complete reversal of the government’s… Continue Reading →
One of the first cases that the Supreme Court will hear this term could make a huge difference in how legislative and congressional districts are drawn. In Gill v. Whitford, Wisconsin Democrats claim that Republicans drew lines that virtually guarantee GOP control of both houses of the state legislature.
A lower court struck down the Wisconsin districting system as an unconstitutional partisan gerrymander – an impermissible manipulation of district lines for the benefit of the party in power. A Supreme Court decision upholding that ruling could prevent the party in control of each state’s redistricting process from drawing lines in its favor.
This case will force the Supreme Court to tackle questions that have long gone unanswered. Can the courts actually rule on partisan gerrymandering? And if so, how will they evaluate such claims?
Rise of the gerrymander
Partisanship always has been a big factor in redistricting. The term gerrymandering was coined in 1812, after Massachusetts Gov. Elbridge Gerry approved a plan in which one district was shaped like a salamander. Both parties have tried to manipulate district lines to their own advantage ever since.
Two recent factors have led to increased concern about partisan gerrymandering all over the country. Sophisticated software makes it easy to manipulate the lines for partisan advantage. And growing ideological polarization between the parties encourages them to do that. In the past couple of years, lawsuits over partisan gerrymandering have cropped up in Maryland, North Carolina, Texas and Virginia.
The Supreme Court has never struck down a partisan gerrymander, but it has rejected other districting manipulations. The “one-person, one-vote” principle means districts should be roughly equal, so that everyone’s vote is equal. And racial gerrymandering is impermissible.
This is what makes the Wisconsin case so noteworthy. Its potential impact might explain why more than 50 amicus briefs have been filed by a wide range of groups whose interests could be affected by whatever decision the Supreme Court makes.
In Gill v. Whitford, the justices face two important questions.
First, may courts even consider partisan gerrymandering claims? The Supreme Court has given mixed signals here. A 1986 case, for example, ruled that courts could consider partisan gerrymandering, but found no constitutional defect in Indiana’s legislative districts. But in another case from Pennsylvania in 2004, four justices concluded that courts could not consider partisan gerrymandering claims, while a fifth rejected the challenge on the merits.
Finding a manageable legal standard for partisan gerrymandering might be more complicated than it is for other districting problems. In one-person, one-vote cases, for instance, a court can look at population differences between districts.
Racial gerrymandering disputes can be complicated, but courts have devised rough and ready tests. The Supreme Court had no trouble striking down the Alabama legislature’s almost surgical redrawing of Tuskegee’s boundaries to remove virtually every black voter from the city while leaving every white voter in place.
But in places with racially polarized voting, it can be challenging to tell whether a case involves a racial gerrymander or a partisan gerrymander. Although the Wisconsin case doesn’t really pose this problem, it has arisen in many others.
Testing the boundaries
Still, if we accept that districting is “fundamentally a political affair,” as Justice Sandra Day O’Connor once put it, how much partisan manipulation is too much? Any answer to that question involves some type of statistical analysis, and courts are not terribly comfortable with math.
Some states require that their districts be compact and contiguous, meaning that they have more or less regular shapes and that all parts of the district are geographically connected. However, that’s not explicitly embodied in federal law. The Wisconsin Democrats have offered a relatively simple index called the efficiency gap as a measure of partisan gerrymandering. This index estimates how many voters are packed into safe districts, instead of being spread out to make more districts competitive.
A number of leading scholars, including the expert used by Wisconsin Republicans in drawing the state’s legislative districts, contend that there are other generally accepted methods for evaluating partisan gerrymandering claims. For example, a partisan symmetry test would explore whether one party has to get more votes than the other party in order to win the same number of seats.
But the Wisconsin parties disagree about that contention. The Republicans contend that these tests are too complex and fail to provide a “limited and precise” standard for evaluating partisan gerrymandering claims.
This gets us to the second question that the Supreme Court might have to address. If the justices agree that courts may decide partisan gerrymandering cases, they then will have to determine whether the Wisconsin districting system violates the Constitution.
The Constitution doesn’t say anything explicit about gerrymandering of any kind. The basic argument against it says that partisan gerrymandering is inconsistent with basic concepts of self-government. Parties who challenge partisan gerrymandering couch their arguments in terms of the Due Process and Equal Protection Clauses of the 14th Amendment. Some commentators also have suggested that partisan gerrymandering violates the First Amendment.
This means the Supreme Court will have to decide whether the lower court’s decision to reject the Wisconsin district lines was legally sound. The justices could uphold that decision. Or they could decide that the lower court used an incorrect legal standard and remand the case for further consideration under the correct standard.
The stakes in this case are enormous. If the Wisconsin Democrats win, we should expect the minority party in many states to sue over redistricting plans that advantage the majority party. This already happens in one-person, one-vote disputes, as well as in claims of racial gerrymandering.
But if the Wisconsin Republicans win, we can expect even more partisan manipulation in redistricting, a process which must be done after every census. This will make it easier for representatives to choose their voters rather than for voters to choose their representatives.
Neither outcome provides grounds for optimism. Either court proceedings will generate uncertainty over district lines or politicians will maneuver for partisan advantage.
Maybe this Wisconsin case will encourage greater use of independent commissions for redistricting. This is how Arizona, California, Idaho and Washington do it. And the Supreme Court in 2015 upheld the Arizona system against a constitutional challenge. Or we might devise other ways to elect legislators.
But let’s not be naïve. Politics, as Mr. Dooley long ago explained, ain’t beanbag. How district lines are drawn is only part of the problem of promoting responsible government.
By Jane Chong and Benjamin Wittes Last Tuesday, the New York Times published a foggy story noting that Senate majority leader Mitch McConnell “has mused about whether Trump will be in a position to lead the Republican Party into next year’s elections and beyond.” The time for musing has passed. It’s now time to begin a… Continue Reading →
Are you old enough to remember how concerned Republicans were about the “rule of new” in regard to a president’s testimony about a blowjob in a civil case? Good times! Trump pardons arpaio! pic.twitter.com/t7DEWHyzLW – Jake Sherman (@JakeSherman) August 26, 2017 This pardon is contrary to DOJ guidelines, unsurprisingly. Pure politics. Wonder what the pardon attorney’s… Continue Reading →
Connecticut Governor Dannel Malloy recently signed a groundbreaking bill to reform bail in Connecticut. As a result, hundreds of impoverished defendants will no longer stay in jail as they await trial merely because they cannot afford bail.
The bill was widely supported by the State’s Republicans and Democrats and passed with ease in June.
At the bill’s signing, Gov. Malloy noted that the bail reform bill would focus on the “unintended consequences” of a justice system that has had a harmful impact on public safety pretrial.
The Governor noted that the impact of bail laws can be devastating to people who are jailed for even a couple of days who have been accused of crimes and cannot make bail. They could lose their housing or employment, which can only aggravate the flux in an already stressed life that could lead to committing crime.
For years, and led by Malloy’s criminal reform efforts, Connecticut has been focused on lowering crime rates.
The bail reform law became effective in July of 2017.
It stops courts from ordering bonds on misdemeanor defendants, with exceptions including family violence; or where someone is considered a flight risk, may obstruct the legal system, or harm someone else or themselves.
The Pretrial Justice Institute, which advocates for bail reform expects this bill to have a major impact on the Connecticut justice system, as 75 percent of criminal cases in Connecticut are misdemeanors.
No More Cash Bonds in Connecticut
It also bars judges from assigning cash-only bail, where defendants must pay the entire amount of the bond to be released jail. Now, defendants will have a choice to secure their release by paying part of the bail, while some will be released without any bail at all – just a promise to appear (called “PTAs”) in court for their future court dates.
Bail / Bond Changes in Misdemeanor Cases
The law requires that a defendant alleged to have committed a misdemeanor who stays in jail because they cannot pay bail must have a bail review hearing within two weeks of their arraignment, which was shortened from 30 days.
At later bail hearings, Connecticut courts must remove the financial conditions of a defendant’s release unless the prosecution successfully argues that the defendant is either a danger to the community or has the risk of flight.
At the request of the bail bond industry, there will also be a study exploring the feasibility to impose an additional fee on defendants who can afford bail.
Bail Now Not Only for the Wealthy
Many local and states jurisdictions have passed bail reforms recently supported in part by civil rights groups that have challenged the constitutionality “wealth-based bail practices.”
Daily, across the U.S., 450,000 individuals are in jail pretrial. Many are charged with low-level crimes and are incarcerated only because they cannot afford bail.
This costs taxpayers $14 billion yearly, or $38 million daily.
Connecticut thinks it will save $30 million by 2019 by shrinking the incarcerated population.
Stamford-based criminal attorney Mark Sherman noted, “The new bail reform law helps defendants, especially low-income families, by doing away with a unilateral approach and safely releasing people who are no harm to the community.”
Jury selection in the Shkreli trail for eight counts of securities and wire fraud has not been an easy task. Over 200 potential jurors have been excused. Here are comments made by potential jurors during selection. Brafman is Shkreli’s attorney…
The Court: The purpose of jury selection is to ensure fairness and impartiality in this case. If you think that you could not be fair and impartial, it is your duty to tell me. All right. Juror Number 1.
Juror no. 1: I’m aware of the defendant and I hate him.
Benjamin Brafman: I’m sorry.
Juror no. 1: I think he’s a greedy little man….
Juror no. 47: He’s the most hated man in America. In my opinion, he equates with Bernie Madoff with the drugs for pregnant women going from $15 to $750. My parents are in their eighties. They’re struggling to pay for their medication. My mother was telling me yesterday how my father’s cancer drug is $9,000 a month.
The Court: The case is going to come before you on evidence that you must consider fairly and with an open mind.
Juror no. 47: I would find that difficult….
Juror no. 52: When I walked in here today I looked at him, and in my head, that’s a snake — not knowing who he was. I just walked in and looked right at him and that’s a snake.
Brafman: So much for the presumption of innocence.
The Court: We will excuse Juror Number 52. Juror Number 67?…
Juror no. 77: From everything I’ve seen on the news, everything I’ve read, I believe the defendant is the face of corporate greed in America.
Brafman: We would object.
Juror no. 77: You’d have to convince me he was innocent rather than guilty…
Juror no. 10: The only thing I’d be impartial about is what prison this guy goes to…
juror no. 59: And he disrespected the Wu-Tang Clan.
(h/t John Cole at Balloon Juice)
Due to the increased use of community-based programs, Kings County, Washington, prosecutors are sending fewer juveniles to adult court than ever before.
Several U.S. Supreme Court rulings since 2005 have stated that juveniles are “prone to immaturity and impetuosity, [and] often fail to appreciate risks and consequences” and gave discretion to judges to tailor their sentences for juveniles and not adhere to strict sentencing guidelines.
According to Prosecutor Dan Satterberg’s juvenile-justice report, in 2016 police referred 67 juvenile cases in King County to prosecutors involving 16 and 17-years-old juveniles who were accused of violent crimes.
These crimes were: first degree robbery: 43.3%, murder: 26.7%, drive-by shooting: 16.7%, first degree assault: 6.7% and first-degree burglary: 3.3%. Of these, 34 were charged in juvenile court and 30 were sent to superior (adult) court.
Out of the 30 cases sent to adult court, the majority involved African American youths (43.3%), followed by Hispanic (26.7%), Asian/Pacific Islander (16.7%), and then Caucasian (6.7%) and Native America (3.3%).
King County prosecutors have broad discretion to decide which court the juveniles who commit these violent acts will be prosecuted and how lenient the court is with sentencing.
To decrease racial disparity that is apparent in Satterberg’s report, the county has been successfully using community-based programs to work with these youths outside the court system and decrease the number of cases filed against juveniles.
One such program is the weekend workshops in the 180 Program, which began in 2011 after conversations Satterberg had with Pastor Doug Wheeler. Held monthly and funded by the prosecutor’s office, the program has helped 1,500 youths avoid charges.
Successful completion of the program means that the misdemeanor charges will be waived before they are filed with the court system. In fact, there were 1,600 cases filed in 2016, 16% less than the year before, compared to 8,000 cases twenty years ago.
Using Satterberg’s report as well as individual court records of the cases, the King County Bar are tailoring prison sentences of juveniles whose cases get sent to adult court.
Automatically sending these juveniles into the adult system does increase recidivism, according to the Washington Institute for Public Policy.
When combined with community custody or supervision, this approach has greatly reduced length of sentences that otherwise would have been much longer.
There is growing support among Washington lawmakers to decrease the number of crimes eligible for automatic jurisdiction in adult court. However, there are risks to being too lenient as the court will lose any jurisdiction over the minor when he or she reaches 21 years of age.
“Cases should be considered on a case-by-case basis, and even violent crimes should not be auto-declined to adult court,” said attorney Stephen Hamilton. “Other factors such as the juvenile’s age and case history should be considered; we should help these juveniles see a better future for themselves rather than automatically sending them to jail, where they will learn to be better criminals.”