2019-07-29 10:00:32

Amazon will be responsible for nearly half of all e-commerce in the United States during 2019. Critics such as Sen. Elizabeth Warren (D–Mass.) allege that the company “squash[es] small businesses and innovation.” They believe government antitrust action is needed to save retail from being totally subsumed by Prime memberships and brown boxes. Yet their dystopian vision fails to account for the boutique retail renaissance simultaneously happening in cities around the world.

Stores selling a single product category, such as butcher shops or model train stores, used to be common, but this pattern of shopping disappeared as first big-box and then e-commerce retailers started offering a vast array of goods at lower prices in a single location.

There was much handwringing over the trend away from specialized retail, but as Philip Oltermann observed recently in The Guardian, a new wave of small retailers is popping up in cities such as Berlin. Oltermann visited a shop selling nothing but live ants and ant terrariums, many designed by the 30-something proprietor himself. It operates as a showroom, a place to display boutique products that are then shipped from off-site to the consumer, thus saving money on retail space and inventory overhead.

How is that store able to compete against Amazon, which sells ant farms at a lower price point? The key is that it bridges the gap between online and offline life. When you order a terrarium from a seller who is clearly obsessed with his own product, you’re buying that person’s expert knowledge in addition to his unique wares. Contrast that experience with buying an ant farm on Amazon, where the expert is replaced with an algorithm and a few hundred reviews from random strangers. Amazon may tell you which terrarium was bought by the most people and how they felt about that purchase at a moment in time, but it’s a poor substitute for true expertise.

Perhaps you think Amazon will crush specialized retail because consumers value cost and convenience over expertise. So it once seemed with Barnes & Noble and Borders, two corporate Goliaths most people thought would permanently crush independent book-selling Davids by offering lower prices and wider inventory.

Nobody in the late 1990s imagined that an internet startup would eventually topple those giants by beating them at their own game. Nor did most think Amazon’s ascent would lead to a revival of independent bookstores—but it has. According to the American Booksellers Association, the number of such shops climbed from 1,660 in 2010 to 2,470 in 2018.

The future of retail is not an Amazon monostore, although Prime may replace big-box retailers, dominate certain categories of products, and appeal to the most price-conscious of consumers. But alongside Amazon, we are already seeing a new wave of hyper-specialized stores selling goods to consumers looking for expertise and a boutique shopping experience.

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2019-07-29 08:00:28

A spokesman for Chicago’s Office of Emergency Management and Communications says the agency will discipline and retrain a 911 operator who hung up on a road rage victim. The victim says a man in a van cut her off and yelled slurs at her. When she drove off, she says the man followed, so she called 911. The operator told the frightened woman to stop yelling at her. The woman hung up on the operator because she thought the operator wasn’t helping. She called back and got the same operator. She asked for someone else, but the operator said “Bye” and hung up on her.

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2019-07-28 21:10:03

Most proponents of the nondelegation doctrine worry that Congress delegates too much decisionmaking authority to administrative agencies. The conventional critique of delegation thus emphasizes the breadth of discretion agencies are given to issue rules, define offenses, and set broad policy priorities. These sorts of choices are inherently legislative, the argument goes, and are thus of the sort that should be made by the people’s elected representatives.

A central concern about broad delegation is the resulting democratic deficit of agency decisionmaking. The specific concern is that the hand-off of broad policymaking authority transfers the power to enact normative preferences into positive law from the people’s elected representatives to unelected, and therefore less democratically accountable, administrators. Yet as some degree of delegation is inevitable (and has been with us since the earliest days of the Republic), the question inevitably becomes “how much is too much” – and this is a question the courts have seemed unwilling (if not unable) to answer.

The persistent focus on the scope of legislative delegations has caused commentators to overlook another relevant dimension of delegation: Time. Particularly in an era of legislative inaction, the delegation of authority to administrative agencies is not occurring in the present, but in the past. When agencies wield broad regulatory power, they often rely upon authority delegated to them in years past, by a prior Congress, and they regularly rely upon legislative measures that are increasingly obsolete.

That agencies routinely rely upon past delegations to administer, implement and enforce their programs exacerbates delegation’s democratic deficit. Were agencies exercising authority recently delegated authority, one could argue that such delegations reflect a contemporary judgment of the desirability of delegating broad authority to a particular agency to address a particular concern, perhaps due to the technical complexity of the underlying subject matter. As things stand today, however, agencies often rely upon age-old delegations of authority to address contemporary concerns.

Consider the Clean Air Act (CAA) and its application to greenhouse gas emissions. Congress enacted the CAA’s basic architecture in 1970, and made substantial revisions in 1977 and 1990. As originally constructed, the CAA focused most acutely on localized air pollution. What courts have identified as the “heart” of the Act are those provisions authorizing and enforcing ambient air quality standards in metropolitan areas. Relatively little of the CAA’s core architecture concerned interstate air pollutants. Global climate change, in particular, was not yet a serious concern within Congress when the CAA was passed and amended, and there are no CAA provisions drafted with concerns like global climate change in mind.

Nonetheless, seventeen years after Congress last revisited the CAA, in Massachusetts v. EPA, the Supreme Court concluded that the Act’s definition of “air pollutant” was broad enough to encompass greenhouse gases, thus conferring upon the EPA the authority to address climate change. Whether the Court was correct to interpret the CAA in this fashion, this decision set in motion a series of regulatory initiatives that Congress never contemplated, let alone endorsed, and forced the EPA to retrofit a twentieth-century statutory regime to address a twenty-first century problem. The resulting mismatch between the CAA’s architecture and the nature of both greenhouse gas emissions and resulting climate change has confounded the EPA and the courts since (see, e.g., UARG v. EPA).

The temporal lag between legislative delegation and the utilization of delegated authority raises distinct concerns about whether such delegation is consistent with democratic governance. When decades pass between the enactment of statutes delegating authority to agencies and the exercise of that authority, there is a risk that the delegated authority will be used for purposes and in ways that the enacting Congress never considered. This may lead to situations where Congress has not provided the proper tool for the problem the agency is addressing, or where agencies are left to try and force the square pegs of contemporary problems into the round hole of previously delegated authority, as has occurred with climate change.

This problem of time is largely overlooked in debates over delegation. Jurists, policymakers, and commentators have not considered how the passage of time accentuates the concerns motivating calls for a nondelegation revival and how the temporal dimension of the problem might require a different set of reforms – or so Chris Walker and I argue in our draft paper “Delegation and Time.”

It might be possible to craft a new nondelegation doctrine that is sensitive to the problem caused by broad delegations cemented within obsolete statutes, but courts have shown little awareness of this dimension of the nondelegation problem, let alone what a doctrine might look like that could address it. So perhaps courts are not the place to look for a solution.

In our paper we consider how Congress could create incentives for more regular revision of those statutes that delegate authority to regulatory agencies. Specifically, we suggest that Congress could force itself to engage in more regular reauthorization of relevant programs, summarize examples of where this has actually occurred, and consider the implications of more regulator reauthorization on existing administrative law doctrines. In effect, we suggest that one way to address delegation concerns – and, in particular, to address the problem of time – is to find ways to make Congress legislate again, and that is something that Congress itself should be able to do.

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I blogged previously here and here about the Massachusetts case of Michelle Carter, who is currently in prison for encouraging her boyfriend Conrad Roy to commit suicide. The HBO documentary “I Love You, Now Die: The Commonwealth v. Michelle Carter” shines the spotlight back on her trial and appeal. The documentary did a decent job of putting the case in context, and consider this to be your spoiler alert if you haven’t watched it yet and still plan to.

The prosecution’s case was built around the theory that Carter sought to manipulate Roy into killing himself so she could achieve sympathy and popularity as the grieving girlfriend. Indeed, the prosecution painted her as a friendless weirdo at best and sociopath at worst who frequently lied to get attention.

The defense, of course, tells a different story. According to that side, Carter was a mentally unstable teenager who thought that she was helping Roy escape misery and who had at best a tenuous relationship with reality. Text messages exist in which Carter had previously sought to dissuade Roy from killing himself, and nobody argues that she was responsible for his four previous suicide attempts. Roy had a long history of social anxiety and depression, and his family inflicted domestic violence on him—including the (substantiated) time his father punched him in the face.

One of the largest misconceptions about the case is that Carter texted Roy to get back in the car that was filling with carbon monoxide. This did not occur, as can be seen in the complete transcript of their texts from that day. The question is whether this is something she said to him on the phone that day, for which the evidence is a statement that Carter made to a friend via text months later. The defense’s expert, Dr. Peter Breggin, later criticized the selective way in which the prosecution presented whether Carter told the truth in given instances. Indeed, the trial judge’s (and our) belief about whether Carter told Roy to get back in the car hinges entirely on the veracity of her later text to the friend.

On the one hand, it is common in a criminal case for a defendant only to lie when it is in their interest. On the other hand, Carter sometimes potentially appeared to live in a fantasy world, such as when speaking to Roy (over the course of their texting relationship) in almost verbatim lines from the TV show “Glee” with which she was obsessed. Her perceptions of what had taken place in real life, even for occurrences entirely unrelated to Roy’s death, also frequently seemed to differ from other people’s. Ultimately, we may never know what exactly she said to Roy in their phone call.

As I have argued previously, I believe the case was decided incorrectly whether she told him to get back in the car or not because the worst version of her actions still does not correspond to the legal definition of involuntary manslaughter. Carter’s detractors may themselves recognize the uncomfortable legal fit (and/or they may desire harsher punishments), which is why they are now promoting a bill known as “Conrad’s Law” that would explicitly make the encouragement of suicide a criminal offense punishable with up to five years in prison. The bill states in relevant part:

(b) A person shall be punished by imprisonment in the state prison for not more than 5 years if they know of another person’s propensity for suicidal ideation and either:

(1) (i) Exercise substantial control over the other person through control of the other person’s physical location or circumstances; deceptive or fraudulent manipulation of the other person’s fears, affections, or sympathies; or undue influence whereby the will of 1 person is substituted for the wishes of another;

(ii) intentionally coerces or encourages that person to commit or attempt to commit suicide; and

(iii) as a result of the coercion or encouragement, in whole or in part, that other person commits or attempts to commit suicide; or

(2) (i) Intentionally provides the physical means, or knowledge of such means, to the other person for the purpose of enabling that other person to commit or attempt to commit suicide and, as a result, the other person commits or attempts to commit suicide; or

(ii) participates in a physical act which causes, aids, encourages or assists the other person in committing or attempting to commit suicide.

(c) This section shall not apply to a medical treatment lawfully administered by, or in a manner prescribed by, a licensed physician.

While it is preferable to have the legislature address the issue head-on, the bill is problematic in many respects. Criminalizing speech requires both a strong public interest rationale and careful drafting. As to the former, it is not clear to me how frequently suicide can be said to have been “caused” by the speech of another even using liberal definitions of causation.

The current text of the bill also invites other great difficulties, such as when including as an element “undue influence whereby the will of 1 person is substituted for the wishes of another”. Trial courts are likely to interpret this language in vastly disparate ways and be unable to ensure fair and equal administration of justice. The bill’s text also disregards motive: someone who encouraged suicide out of hatred for an individual and someone who genuinely believed that said individual could best escape suffering via suicide would both be treated the same. And a defendant’s own mental instability would presumably not serve as a legal defense to criminal interactions with a would-be suicide victim, short of meeting the (high) standard for Massachusett’s insanity defense.

We are likely to see disconcerting cases if this law is passed. I remain of the view that a tort remedy, while imperfect, would avoid a lot of the pitfalls that any criminal measure entails.

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2019-07-28 10:00:10

Wasteland: The Great War and the Origins of Modern Horror, by W. Scott Poole, Counterpoint, 289 pages, $26

The First World War wasn’t just itself a great horror. In Wasteland, W. Scott Poole makes a compelling case that it launched a great age of horror fiction.

After the armistice of November 1918, a wave of vivid memoirs, plays, novels, and poems tried to grapple with the civilization-shaking event that everyone had just experienced. These gradually gave way to more sanitized recollections, as each nation tried to move on from the conflict. Yet that wartime experience didn’t disappear from the culture, Poole argues. It went underground, feeding a resurgent horror genre, especially in the new medium of film. Movies transmuted the effects of poison gas, flamethrowers, machine guns, and massive artillery barrages into creatures that reminded audiences of their all-too-real confrontations with death and dismemberment. While most of Europe and America tried to turn away from an industrial war’s killing fields, the horror genre stared deeply into those abysmal years and brought forth fascinating monstrosities.

Poole, a historian at the College of Charleston, begins with the 1922 German vampire film Nosferatu, the opening titles of which call it an “account of the great death.” The card is dated to the early 19th century and a nonmilitary story follows, but as Poole notes, the phrase surely conjures thoughts of the great death that the picture’s German audiences had just been through (nearly 2 million soldiers killed, plus approximately one quarter of that in civilian dead). The titular vampire, glimpsed in a soil-filled coffin underground, “evoked all the corpses of the age, scattered across battlefields.” The scale of the vampire’s ravages becomes “a flood of death…just as the Great War had brought to all of Europe.” Many of the movie’s creators fought in the war, including director F.W. Murnau and producer Albin Grau; Grau described the conflict as “a cosmic vampire, drinking the blood of millions.”

Another director, Paul Wegener, was a decorated veteran of the Eastern Front. In Poole’s telling, Wegener’s The Golem (1920) is saturated in the war’s terror, with its monster created of mud (think of trenches) and acting as a remorseless, inhuman killing machine (think of mechanized warfare). That kind of mechanical monster, a frightening reflection of dehumanized humanity, also appears in The Cabinet of Dr. Caligari (1920). Poole sees Caligari‘s hypnotized killer as a metaphor for the well-drilled soldier—a suggestion of the ease with which the authorities could turn ordinary Europeans into mass murderers.

Poole’s thesis is more overt in Abel Gance’s J’accuse. At the climax of this 1919 war drama, a legion of dead soldiers rise from their graves to march on a nearby village, anticipating many zombie stories to come. They return to their coffins, Poole notes, only after the villagers acknowledge that they didn’t pay enough attention to the soldiers’ suffering while they were alive.

An even better example may be Edgar G. Ulmer’s strange and underappreciated The Black Cat (1934), in which two veterans duel through means both physical and semi-supernatural in a modernist home built on the site of a Great War massacre, the basement of which is filled with preserved corpses. One of the leads, Bela Lugosi, was really a veteran, and his war stories unnerved the other actors and the crew.

Other films took the image of horrific corpses in different directions: dummies, puppets, mummies, waxworks—figures inhabiting the uncanny valley between human beings and fantastic shapes. At times these forms echoed not just the dead but the mutilated living.

The First World War saw breakthroughs in medical technology, allowing some soldiers who would have died in previous conflicts to live—but in altered form. Disfigured veterans, such as those with facial injuries (gueules cassées, or “broken faces”) mitigated by innovative prosthetics, were mirrored in such movies as The Phantom of the Opera (1925), The Man Who Laughs (1928), and Freaks (1932). For Poole, these modern monsters were creatures of the war, even when they had pre-1914 origins: “The double, the doll, the wax figure, the puppet all mimicked the Great War dead. They evoked the mechanical automata of the war of steel against flesh that had so completely reminded Europeans of their mortality.”

Poole also lets us see anew the horrific images of machines devouring people in Metropolis (1927), linking them to the war as well as one of the war’s spinoffs, the Soviet revolution. The film’s mobilization of people into inhuman masses reminds us not just of industrial labor but of industrial war. The director, Fritz Lang, was yet another World War I veteran.

Poole doesn’t limit his coverage to film. He discusses literary figures, from Franz Kafka to T.S. Eliot, whose The Waste Land (1922) finds a clear real-world source in the Western Front. Painters turned to horror too—notably veterans Otto Dix and Max Ernst. In Poole’s account, the shocking visions of dada and surrealism flow from the Great War’s deep terror and trauma: “Horror offered the surrealists the grammar for the new language they sought to create.”

The American role in this story is somewhat different, as the U.S. entered the war late and suffered only a fraction of the European nations’ death tolls. But the experience did occur, and its cultural reckoning was buttressed by the transatlantic flow of European artists. James Whale fought in the Somme campaign of 1916, then won fame by staging and filming the play Journey’s End, a tense drama set entirely in a British dugout. In Hollywood, Whale directed part of the World War I epic Hell’s Angels (1930)—and then, in 1931, made Frankenstein.

In Whale’s hands, the latter story’s monster represents the terrifying war dead—not just one body but the brutally recombined fragments of many. His existence on the boundary between life and death, between the human and the inhuman, recalls Caligari‘s Cesare as well as the shell-shocked soldier. To Poole, he also recalls “the maimed and mutilated returning veteran,” another object of mingled dread and sympathy.

Outside the medium of film, Poole’s analysis of the Americans sheds new light on the fiction of H.P. Lovecraft. Many of Lovecraft’s short stories openly featured the war, such as “Dagon” (1919) and “The Temple” (1925), whose plots are driven by U-boat raids, or “Herbert West—Reanimator” (1922), whose mad scientist brings an assistant to Europe to recover corpses from the war. Lovecraft’s visions of vast ruins and immense massacres can be seen as refractions of the Western Front. One source for his imagined apocalypses was the real apocalypse the world had just experienced.

After making the case for postwar horror’s ties to World War I, Poole takes the genre forward into World War II. In so doing, the author takes issue with Siegfried Kracauer’s influential 1947 book From Caligari to Hitler, which sees Germany’s turn to fascism anticipated in imaginative film. Poole argues that Kracauer underestimates the power of the popular horror genre at recollecting the Great War. Poole does think the Nazis made canny use of horror not just in what they wreaked upon the world but in the rhetoric and movies they supported. Jews, Slavs, communists, backstabbing politicians, and homosexuals appeared as monsters to be feared and destroyed, a trope drawing on two decades of interwar monster fiction.

Horror films made later in the 20th century still carry echoes of 1914–1918, even when they’re clearly connected to contemporary wars, as with Night of the Living Dead (1968) and Vietnam or World War Z (2006) and Iraq. “In every horror movie we see, every horror story we read, every horror-based video game we play, the phantoms of the Great War skittle and scratch just beyond the door of our consciousness,” Poole writes.

Wasteland overshoots at times. The book struggles to summon M (1931) to the bar, but it cannot quite make the connection between the war and the film’s tale of a child murderer, the police, and the underworld. Some of Poole’s connections are a touch too abstract, as when he compares Victor Frankenstein’s lonely lab to “an industrial process” and thus to the First World War. (The links he draws between 1932’s Island of Lost Souls and the terrifying science of that era is more persuasive.) Identifying King Kong‘s creators as veterans is useful, but it is less accurate to argue that New York City has become a necropolis by the film’s end. At times the book’s focus on later works of art blurs subsequent conflicts with World War I.

Such issues aside, Poole has made an important contribution to cultural history. Wasteland reveals how horror stories can have even darker roots.

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2019-07-27 14:07:26

The Washington Post‘s Robert Barnes reports on recent remarks by Justice Ruth Bader GInsburg during her annual “conversation” with Duke Law’s Neil Seigel.  The discussion covered quite a bit of ground, including some of the Court’s more contentious decisions. This bit about the newest justices caught my eye:

Siegel noted that President Gerald Ford had said he had looked for the best legal mind in the country before selecting Stevens in 1975. He suggested that may not be the criterion for more recent court nominations.

But Ginsburg pushed back gently. “I can say that my two newest colleagues are very decent and very smart individuals,” she said, referring to Trump’s choices of Justices Neil M. Gorsuch and Brett M. Kavanaugh.

Later, she invoked the pair when saying “there are a number of cases this term where we didn’t divide along so-called party lines.”

“Keen observers of what the court does will have noticed that I assigned an opinion this term to Justice Kavanaugh and two to Justice Gorsuch.” The chance to assign majority opinions is dictated by seniority, so Ginsburg has the power only when Roberts and the court’s longest-serving justice, Clarence Thomas, are on the other side.

Barnes also reports that Justice Ginsburg made no comment on the sexual assault allegations that arose during the Kavanaugh confirmation hearings, but did note (as she has before) that Justice Kavanaugh “made history” by being the first justice to hire all female clerks for a single term. As a consequence, Barnes notes, this past term was the first time ever there were more female clerks than male clerks at the Court.

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Last month, Eater’s New York vertical published an excellent and damning investigation into the city’s awful food-safety inspection regime. The article details some of the ways restaurants of all types are forced to game the system in order to pass muster with the city’s notoriously overzealous health department. Many of these examples are farcical, including one centered on a covert, all-hands message that “Beyoncé is here,” one unnamed restaurant’s code language that warns employees of the arrival of a health inspector.

These businesses aren’t necessarily in gross violation of the health code—they’re simply reacting to a system that feels broken,” writes Saxon Baird.

Overbearing, broken restaurant regulations aren’t just a thing in New York City. They’re hurting restaurants across America. And while a few cities and states are chipping away at bad rules they now have on the books, many others are busy adopting bad new ones.

With low profit margins and high failure rates, running a restaurant is already a risky endeavor. That’s why restaurant owners find it so onerous when additional regulations eat into those profit margins and raise the risk of failure.

That fact doesn’t stop lawmakers around the country from piling on restaurateurs nevertheless. Chicago lawmakers, for example, are considering a new ordinance that would limit flexibility in scheduling workers’ hours. In a great editorial last week, the Chicago Tribune urged the city to back off, noting the rules don’t make sense and would hit restaurants and restaurant workers particularly hard.

The Tribune reports the new rules would impose restrictions on flexible schedules for hourly workers (and even, in an apparent nod to the snowballing Bernie Sanders’ campaign labor scandal, many salaried workers). Many of these workers, the Tribune notes, “prefer getting called on short notice to work [and] actually like a more fluid schedule—and extra hours.” The editors, lamenting the fact that “employers find Chicago an increasingly hostile place to do business,” close with this argument: “City Hall should not be interfering in shift changes at…Taco Bell.

Chicago and New York City are as blue as blue gets. Certainly, red-state lawmakers would never interfere with businesses, right?

Well, sure. Unless, say, you’re a restaurateur in Mississippi who wants to allow your customers to let their dog chill next to them on your patio while they eat.

After the Clarion-Ledger published an article last week directing diners in and around Jackson to a list of dozens of dog-friendly restaurants, the state’s health department turned scold.

“After the story came out, [the state health department] contacted the Clarion-Ledger and said any restaurant that allows pets on the patio is violating the Mississippi Food Code,” the Clarion-Ledger reported in a follow-up piece.

State health officials say the ban has been on the books since at least the mid-2000s. They claim they’ll only enforce the rule if complaints arise. The health department’s overbearing communiqué to the Clarion-Ledger virtually assures that will happen.

Whom should decide if, say, dogs may sit with their owners outside a restaurant? Shouldn’t it be the restaurant owner herself?

Thankfully, not every new restaurant law or regulation stinks. New rules designed to allow restaurants to limit waste—one in California, the other in North Carolina—highlight the possibilities of deregulation. The new North Carolina law allows restaurants to reuse cleaned oyster shells—as, say, a serving dish for ceviche. The California law, meanwhile, allows diners to bring to-go containers to restaurants and allows festivals and food stalls to provide reusable cutlery.

These are but a few examples of good and bad restaurant rules currently making the news. Others include legislation around restaurant worker pay in Connecticut, proposed alcohol deregulation in North Carolina that would benefit restaurants, a court ruling in a case that centered on whether a California law requires an employer to buy some employees’ shoes, a new law that allows Illinois residents to use SNAP (food stamp) benefits to buy fast food, and a proposed law in Michigan “that would ban the ban of plastic bags ban,” which has the support of the state restaurant association.

Restaurants get by on the slimmest of profit margins and are constantly at risk of failing. Instead of jumping on the regulatory bandwagon, lawmakers around the country should resist that urge and instead reduce the spiraling barrage of regulations that restaurateurs around the country face. Restaurateurs—and voters who like to dine out—will thank them.

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2019-07-27 10:00:34

Last May, reality TV mega-celebrity Kim Kardashian arrived at the White House and successfully lobbied President Donald Trump to grant clemency to Alice Marie Johnson, a grandmother then serving life in federal prison for a nonviolent drug crime.

It would be easy to read that sentence as an encapsulation of the deeply absurd times we’re living through, but 2018 was full of similarly unexpected and encouraging turns in the fight to reform the criminal justice system. Along with Kardashian getting lifers out of prison, Republicans and Democrats hugged on the Senate floor to celebrate the passage of a bill rolling back some mandatory minimum sentences, and former Obama green jobs czar Van Jones stood in the White House with conservative and evangelical Christian leaders to applaud the signing of that bill. Johnson, who served 21 years in federal prison before Kardashian got her released, was an honored guest at Trump’s State of the Union speech this January and published a book about her experiences.

The U.S. criminal justice system railroads innocent people and petty offenders every day. People die in jails and prisons due to neglect or plain malice by public officials. Even if the U.S. released every single nonviolent drug offender currently behind bars, it would still have the highest prison population in the world by a wide margin. These are problems that won’t be completely resolved any time soon. Yet ever so slowly, thanks to a combination of criminal justice advocates, budget-conscious legislators, and voter demand—not to mention the devastating testimony of people like Johnson—some of the system’s most glaring problems are being addressed. Solutions may still be a long way off, but real progress is being made.

Cross-partisan efforts are happening around the country—at the federal, state, and local levels—to change the way people interact with every facet of the criminal justice system, from initial police encounters to sentencing to prisoner re-entry back into society. Some of those efforts will fail. Others will be misguided or ineffectual. But the fact that policy makers are considering alternatives to the lock-’em-up mentality that dominated much of the latter half of the 20th century, and are working with their usual political opponents to make it happen, is a cause for optimism.

Congress Took a Baby Step

In December, federal lawmakers passed the first major criminal justice bill in nearly a decade: the FIRST STEP Act. Although a small cadre of Republicans tried to scuttle the bill, it passed by overwhelming bipartisan majorities in the House and Senate. Some of the GOP senators who shepherded it through Congress, such as Chuck Grassley (R–Iowa), had previously been among the staunchest supporters of harsh drug laws and mandatory minimum sentences.

The legislation was almost painfully modest in scope. It reduced, but didn’t eliminate, several mandatory minimum sentences, and it provided retroactive sentencing reductions to about 3,000 federal inmates serving time under draconian crack cocaine laws. It was riddled with exceptions to appease law enforcement groups, but considering how long it had been since Congress had done, well, anything worth celebrating, it was a notable success.

The biggest lift for those backing the bill was securing the support of Donald Trump, who had made fearmongering about crime one of the highlights of his stump speeches as a 2016 candidate. A bipartisan group of lawmakers and advocates, including White House adviser and Trump son-in-law Jared Kushner, worked for months to convince the president that unjust laws were putting nonviolent offenders in prison for far too long and giving inmates far too few opportunities to succeed when they re-entered society.

For his part, Trump seems to enjoy the positive press he’s received on the issue. The White House bragged in an April press release that the FIRST STEP Act had already resulted in 573 federal inmates being released early from prison. That list included people who were serving life sentences for nonviolent drug offenses, who had expected to die behind bars.

There are many more people languishing in prison under indefensible mandatory minimum sentences who deserve to be freed. But for the former inmates and their families who have been reunited, the benefit has been unquantifiable.

Many civil liberties groups worried that the first step would turn out to be the only step—that the Trump administration and Congress would pat themselves on the back and declare the criminal justice system fixed. The American Civil Liberties Union and the Leadership Conference on Civil & Human Rights, both of which had opposed earlier, weaker versions of the FIRST STEP Act, wrote in a joint statement that the bill was “an important but modest step forward for justice and human dignity. But it is not the end of our fight.” The same advocates who got the law passed are now keeping pressure on the Trump administration to fully implement its provisions.

States Are Pushing Ahead With Reforms

Over the last decade, the bulk of criminal justice reforms have happened at the state level. That trend shows no sign of slowing down. Responding to the promising bipartisan developments in Congress, the Florida, Missouri, and North Carolina legislatures all considered state-level versions of the FIRST STEP Act this year.

One reason many states are looking for ways to reform their criminal justice systems is that their prisons are overcrowded, understaffed, wildly expensive, and dangerous. In Florida, legislators are grappling with how to draw down the third-largest incarcerated population in the country. That population is growing older and more expensive to care for, due to the mandatory minimum sentences many inmates are serving.

“The truth is the state can’t afford 96,000 inmates, not without spending hundreds and hundreds of millions of dollars a year and pulling that money from education or health care, which it doesn’t want to do,” says Florida state Sen. Jeff Brandes, a Republican.

Meanwhile, California is using algorithms to automatically expunge the criminal records of tens of thousands of marijuana offenders, freeing them from the lifelong stigma that a rap sheet carries. If this pilot program spreads, it could go a long way toward rolling back some of the damage wrought by the drug war.

In April, the New York state legislature eliminated cash bail for misdemeanors and nonviolent felonies, which had been needlessly trapping poor people behind bars. The Marshall Project reported that 33,000 criminal defendants in the state spent time in jail in 2017 because they couldn’t afford to post bail. New York legislators also reformed the state’s discovery rules, which previously allowed prosecutors to withhold evidence from defense attorneys until the very eve of trial. (Public defenders called it “trial by ambush.”) Together, these reforms help level the playing field for defendants in what has traditionally been one of the most backward states in the U.S. when it comes to criminal justice policies.

Meanwhile, capital punishment continued its slow decline last year. The Death Penalty Information Center reported that executions remained near historic lows in 2018, while the number of death penalty sentences imposed dropped for the 18th straight year. Only eight states now perform executions. Last year, Washington’s supreme court ruled the state’s death penalty law unconstitutional, and earlier this year California Gov. Gavin Newsom declared a moratorium on executions.

Voters Are Holding Prosecutors Accountable

In major cities across the country, district attorney (D.A.) elections have gone from sleepy, often-uncontested affairs to high-profile races that have drawn attention to the powerful role the prosecutor plays in mass incarceration.

In many of these races, candidates running on explicit reform platforms have unseated incumbents and launched ambitious programs to change the way prosecutors’ offices operate.

Philadelphia District Attorney Larry Krasner, a former civil rights lawyer who was elected to be the city’s top prosecutor in 2017, ordered his line prosecutors to stop bringing charges for minor marijuana violations, to request more lenient sentences for a number of crimes, and to not seek bail for 25 minor offenses. A February study by researchers at the University of Pennsylvania and George Mason University found that the bail policy led to an immediate 22 percent decline in defendants who spent at least one night in jail. And according to a presentation Krasner gave to the Philadelphia City Council in April, the estimated total time to which defendants were sentenced during the last three months of 2018 dropped by 46 percent compared to the first three months of 2014.

In Suffolk County, Massachusetts, which includes Boston, District Attorney Rachael Rollins was elected in 2018 on promises to stop prosecuting 15 different minor crimes and to largely end cash bail. And in Birmingham, Alabama, District Attorney Danny Carr is proposing a “cite-and-release” plan for simple marijuana possession.

These reform-minded D.A.s face pushback from law enforcement as well as, in some cases, from judges, who are often former prosecutors. For example, judges rejected Krasner’s recommendations in the resentencing of defendants who had been given life without parole as juveniles, a practice the Supreme Court later ruled was unconstitutional.

Yet the trends are positive. In Queens, New York, seven candidates are running for district attorney—all of them on reform platforms. And in Philadelphia, activists have turned their attention to the next public office they want to target: judges.

Violent Crime and the Prison Population Are Declining

Despite a two-year increase in violent crime in 2015 and 2016, with murders spiking dramatically in several major cities, overall crime rates in the U.S. remain at historic lows and now appear to be holding steady or continuing their decadeslong decline.

Nationally, the violent crime rate in 2017 fell by 0.9 percent from the previous year, while the murder rate fell by 1.4 percent, according to the FBI’s annual crime report. Property crime continued a more-than-20-year slowdown. Aggravated assault and rape rates both increased, by 2.2 percent and 0.3 percent, respectively—but for context, the total number of crimes per 100,000 people in major American cities has fallen precipitously from just under 10,000 in 1990 to fewer than 4,000 in 2018, according to a report by the Brennan Center for Justice.

As the crime rate has fallen, the U.S. prison population has also continued to decline, albeit slowly. A report released in April by the Vera Institute of Justice found that there were just under 1.5 million people incarcerated in federal and state prisons across the country in 2018—a nine-year low and a drop of 1.3 percent from 2017.

“Since 2008, the incarceration rate in the country has dropped 15 percent,” says Jacob Kang-Brown, a senior research associate at the pro-reform Vera Institute. “And underneath that number you see quite a few states have dropped over 30 percent during that time. I think that those states that are really leading the way can be an example to the states that are still putting more and more people in their prison systems.”

There are several troubling trends lurking beneath that topline number, Kang-Brown says. While the prison population decreased in 31 states, including California, Louisiana, and Pennsylvania, it rose in 19 others—many of them places that have traditionally had low incarceration rates, such as Iowa, Indiana, and Wyoming. In Indiana, the legislature several years ago passed reforms meant to reduce the state’s prison population. Instead, they diverted low-level inmates to county jails, which are now severely overcrowded. In Wyoming, officials say tough sentences for drug and sex crimes are driving the increase.

The overall number of incarcerated women has climbed as well. And in some states where prison populations are falling, those reductions haven’t reached minorities.

“We may want to celebrate reform efforts that have led to the drop in the prison rate in Minnesota,” Kang-Brown says. “However, a closer look at the data shows that this downward trend only affected white people and does not adequately address the racial disparities that we know exist in our justice system. Better data will help us interrogate not just the effectiveness of reform but who benefits from reform.”

A Positive Trajectory

Even though the criminal justice system remains problem-plagued, we can take some heart from the trajectory toward shorter sentences and less taxpayer money spent on caging people whose so-called crimes haven’t hurt anyone.

Eternal vigilance will be required to ensure that new prison sentences aren’t the default answer to every new problem, but it’s significant that many conservative groups are now urging Republicans to resist their most punitive instincts.

Even if Congress reneges on its newfound love for bipartisan criminal justice reforms, activists will continue to work around them, as they have for decades. And if all else fails, Kim Kardashian is now reportedly studying for the California bar exam.

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2019-07-27 04:13:57

The opinion, from Judge William O. Bertelsman, is here; I hope to be able to blog more about it tomorrow, but for now I just thought I’d pass it along. Check out the table on pp. 30-36, where the court lists the statements mentioned by the plaintiff and briefly explains the court’s reasoning for each statement.

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2019-07-27 00:41:37

Earlier today, the Supreme Court issued a stay against a lower-court injunction blocking President Donald Trump from diverting military funds to build his border wall. At least for the moment, Trump can therefore continue to divert the funds for wall construction until the lower courts (and possibly the Supreme Court) issue a final decision on the case. The decision was a 5-4 split along ideological lines, with the five conservative justices voting to stay the injunction, while the four liberals all dissented. Three of the liberal justices would have denied the stay completely. Justice Stephen Breyer wrote an opinion indicating that he would have upheld the lower court injunction against actually using funds to build the wall, but would have permitted the government to “finalize the contracts” for construction. The latter, Breyer contends, would not cause any “irreparable harm” to the plaintiffs, and therefore need not be blocked by a preliminary injunction.

As is the usual practice with stay rulings, the majority issued very little in the way of an explanation. But it did indicate that “[a]mong the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005 [of the the 2019 Department of Defense Appropriations Act].”

In other words, this seems to be a purely a procedural ruling suggesting that the majority justices think the plaintiffs in the case—the Sierra Club and the Southern Border Community Coalition an alliance of various liberal/progressive groups in the border area—lacked the procedural right to challenge the diversion of funds. The Court may be referring here to Judge N. Randy Smith’s argument in his dissent in the Ninth Circuit ruling on this issue, where he argued that only plaintiffs with “economic interests” at stake are legally permitted to challenge the funding diversion. In my view, Judge Smith’s distinction between “economic” and “recreational” interests in dubious. The Court should have simply denied the stay, or at least adopted Justice Breyer’s approach.

But if Smith’s analysis is indeed the basis for the majority justices’ ruling, it is notable that it does not address the underlying merits of the legality of Trump’s plan to divert the funds. And, if the Supreme Court ultimately reverses the Ninth Circuit on this basis, the legal battle over the wall will be far from over.

In my view, Judge Smith’s distinction between “economic” and “recreational” interests in dubious. But, even if the Supreme Court ultimately endorses his reasoning or something like it, there are plenty of other cases challenging the wall funding that have been brought by parties who do have “economic” interests, even on Smith’s narrow definition thereof. They include local governments and private individuals who own property in the areas where parts of the wall would be built.

The lower court rulings in this case—and therefore, also, today’s Supreme Court ruling—also do not consider a range of other important issues raised in the wall litigation. They include whether the situation at the border qualifies as “national emergency” under the National Emergencies Act of 1976 (whose invocation was necessary to trigger the use of some of the funds Trumps wants to access, but not those at stake in this particular case), and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. These questions are likely to be  considered at least some of the many other wall-related cases pending before various federal courts.

Thus, even if the administration ultimately prevails in this case, on the procedural ground highlighted by today’s decision, the legal battle over the wall is going to continue, and these procedural considerations will not prevent many other plaintiffs from challenging the wall diversion.

However, the fact that the justices split along ideological lines on this procedural issue may presage a similar division on the merits, should the Supreme Court ever address the latter. If so, that would be a bad sign for opponents of the wall, since the Court has a 5-4 conservative majority.

As I have pointed out in previous posts on this issue (e.g. here and here), the stakes here go far beyond the specifics of the wall issue. If Trump can use a combination of “emergency” powers and other dubious legal maneuvers to divert funds for wall construction, future presidents can do the same thing for all sorts of other expenditures that were never authorized by Congress. Conservatives who might cheer Trump now will not be so thrilled if the next Democratic president uses similar tactics to build projects he or she  claims are needed for the “Green New Deal” or other liberal policies. More generally, a victory for Trump would concentrate extensive new power in the hands of the president and undermine Congress’ control over the power of the purse.

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