Monday, March 19, 2018

Is America in the midst of a constitutional crisis, constitutional rot or constitutional infection?

Quinta Jurecic and Benjamin Wittes write in The Atlantic about the current situation in American governance. Are we in a constitutional crisis, constitutional rot or constitutional infection? 
The term “constitutional crisis” gets thrown around a lot, but it actually has no fixed meaning. It’s not a legal term of art, though lawyers and law professors—as well as political scientists and journalists—sometimes use is as though it were. Saying that something is a constitutional crisis is a little like saying that someone is going through a “nervous breakdown”—a term which does not map neatly onto any specific clinical condition, but is evocative of a certain constellation of mental health emergencies. It’s hard to define a constitutional crisis, but you know one when you see it. Or do you?
There have been various attempts to define the term over the years. Writing in the wake of the impeachment of President Bill Clinton, and the turmoil of the 2000 election, the political scientist Keith Whittington noted the speed with which commentators had rushed to declare the country on the brink of a constitutional crisis—even though, as he pointed out, “the republic appears to have survived these events relatively unscathed.”
Whittington instead proposed thinking about constitutional crises as “circumstances in which the constitutional order itself is failing.” In his view, such a crisis could take two forms. There are “operational crises,” in which constitutional rules don’t tell us how to resolve a political dispute; and there are “crises of fidelity,” in which the rules do tell us what to do but aren’t being followed. The latter is probably closest to the common understanding of constitutional crisis—something along the lines of President Andrew Jackson’s famous (if apocryphal) rejoinder to the Supreme Court, “[Justice] John Marshall has made his decision, now let him enforce it.” Or, to point to an example proposed recently by Whittington himself, such a crisis would result if congressional Republicans failed to hold Trump accountable for firing Mueller.
The constitutional scholars Sanford Levinson and Jack Balkin more or less agree with Whittington’s typology, but add a third category of crisis: situations in which the Constitution fails to constrain political disputes within the realm of normalcy. In these cases, each party involved argues that they are acting constitutionally, while their opponent is not. If examples of the crises described by Whittington are relatively far and few between—if they exist at all—Levinson and Balkin view crises of interpretation as comparatively common. One notable example: the battle over secession that began the Civil War.
These three categorizations help show what a constitutional crisis could look like, but it’s not entirely clear how they apply to the situation at hand. Whittington, Levinson and Balkin all agree that the notion of a constitutional crisis implies some acute episode—a clear tipping point that tests the legal and constitutional order. But how do we know this presidency isn’t just an example of the voters picking a terrible leader who then leads terribly? At what point does a bad president doing bad things become a problem of constitutional magnitude, let alone a crisis of constitutional magnitude? Indeed, it’s hard to see a crisis when the sun is still rising every day on schedule, when nobody appears to be defying court orders or challenging the authority of the country’s rule-of-law institutions, and when a regularly scheduled midterm election—in which the president’s party is widely expected to perform badly—is scheduled for a few months from now. What exactly is the crisis here?
Another problem with thinking about America’s current woes as a constitutional crisis involves the question of what comes next. That is, assume for a moment we are in some kind of constitutional crisis. So what? What exactly flows from that conclusion? Normally, constitutional conclusions imply certain prescribed outcomes. When a president is impeached, for example, the Senate must hold a trial to determine whether he or she should be removed from office. When serving a second term, a president is not allowed to run for a third term. But if one concludes that we are going through a constitutional crisis, what happens next? The label doesn’t carry any obvious implication, let alone an action item. If it has value, its value is descriptive. It carries cultural and emotional weight but not much else.
Still another problem with the term is that the duration of the crisis is not clear. Does a constitutional crisis take place over days, weeks, or longer? Must it threaten in the immediate term to blow things up if it doesn’t blow over or get resolved through some other process? (Think of the Cuban Missile Crisis, only in domestic constitutional terms.) Or can a constitutional crisis also take place in slow motion?  
There’s a better term for what is taking place in America at this moment: “constitutional rot.”
Constitutional rot is what happens, the constitutional scholar John Finn argues, when faith in the key commitments of the Constitution gradually erode, even when the legal structures remain in place. Constitutional rot is what happens when decision-makers abide by the empty text of the Constitution without fidelity to its underlying principles. It’s also what happens when all this takes place and the public either doesn’t realize—or doesn’t care.
Balkin used the same phrase immediately after the firing of James Comey to describe what he saw as “a degradation of constitutional norms that may operate over long periods of time.” Comey’s firing was startling, he argued, but not a constitutional crisis in and of itself. The real constitutional change lay in the slow corruption of public trust in government that had brought Americans to this point.
Rot, in Finn’s words, is “quiet, insidious, and subtle.” It hollows out the system without citizens or officials even noticing. And, as Balkin notes, though “constitutional rot” is distinct from “constitutional crisis,” the former can lead to the latter. Slowly rotting floorboards can suddenly give way to the hidden pit beneath. (Balkin uses a similar metaphor of a rotten tree branch.)
There are clearly elements of rot in our current situation. The evidence is everywhere. Ongoing violations, or attempted violations, of our democratic norms and expectations, have become routine. The overt demands for the politicization of law enforcement have intensified. A highly-politicized media disseminates presidential propaganda. Congress tolerates it all. This is consistent with constitutional rot.
But “constitutional rot” also has its limits as a way of describing Trumpism. Rot, after all, is a one-way street—a process that can be stemmed and slowed but cannot be reversed. Wood does not regenerate. Rotten meat does not heal itself and become fresh again.
Yet in different ways, both Balkin and Finn imagine constitutional rot as potentially reversible. Balkin’s solution is, essentially, that we must elect different and better leaders in the future—presumably before it’s too late to replace the floorboards. Finn takes a different view, making the case that rot can be combated through the development of an engaged and energized citizenry, one that cares about preserving and maintaining constitutional values.
Even amid the constitutional degradation of this moment, both of these rejuvenating mechanisms are very much in evidence. On a daily basis, features of our democratic culture look more like antibodies fighting off an illness than like the rot before an inevitable collapse.
Journalists have been relentless and ferocious and effective in unmasking and reporting the truth—and news institutions have developed more committed readership as a result. A broad democratic coalition of citizens is mobilizing against Trumpism—most recently in a Pennsylvania congressional district believed to be so solidly Republican that Democrats let the incumbent run unopposed in recent elections. Other institutions, including the very FBI that Trump is assaulting, are knuckling down and doing their jobs in the face of pressure. This is not the stuff of a rotting democracy.
Trump can whine and he can fire senior FBI officials, but he has been singularly ineffective either in getting the bureau to investigate his political opponents (they have not yet “locked her up”) or in dropping the Russia investigation, which continues to his apparent endless frustration. If this is constitutional rot, it's inspiring a surge of public commitment to underlying democratic ideals—including the independence of law enforcement.
What we are seeing, in other words, is a little more dynamic than rot, a phrase that assumes we know the outcome. It’s more like constitutional infection or injury. The wound may indeed lead to a crisis; it may become gangrenous. But to describe the United States today as facing a constitutional crisis misses the frenetic pre-crisis activity of the antibodies fighting the bacteria, alongside the antibiotics the patient is taking.
We are definitely in a period of sustained constitutional infection. The question is whether we can collectively bring that infection under control before we face an acute crisis.
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Sunday, March 18, 2018

Alabama sheriff "legally" pockets $750,000 in prisoner meal money

An Alabama sheriff who is paid $93,000 a year was able to pocket more than $750,000 from excess money in an inmate food fund over a three-year period, thanks to a state law passed before World War II, reported the ABA Journal.
Sheriff Todd Entrekin of Etowah County revealed the compensation on ethics disclosure forms filed with the state, reports. He relied on a state law that says sheriffs may “keep and retain” leftover prisoner meal money; many sheriffs in the state have interpreted the law to allow them to personally keep leftover funds rather than turn the money over to the county.
Entrekin and his wife own properties, separately or together, that have an assessed value of more than $1.7 million, according to Their latest purchase, made in September, was a home in an upscale neighborhood in Orange Beach, Alabama, for $740,000.
Two civil rights groups sued 49 Alabama sheriffs in January in an effort to learn whether they personally pocketed leftover inmate meal money. The suit says that keeping meal money for personal use creates a perverse incentive to spend as little as possible on the feeding the inmates.
One person who questioned the quality of inmate meals was a landscaper, 20-year-old Matt Qualls, who told last month that Entrekin paid him to mow his lawn for several months in 2015 using a check labeled “Sheriff Todd Entrekin Food Provision Account.”
“A couple people I knew came through the jail, and they say they got meat maybe once a month and every other day it was just beans and vegetables. I put two and two together and realized that that money could have gone toward some meat,” Qualls told
Qualls was arrested four days after the story was published, based on an anonymous tip about a marijuana smell coming from an apartment, reported. Officers from the Rainbow City Police Department and the Etowah County Drug Enforcement Unit made the arrest. Rainbow City charged Qualls with marijuana possession, while Etowah County charged Qualls with felony trafficking based on the weight of marijuana-infused butter found in the apartment.
Qualls accepted a plea deal that lowered the trafficking charge to first-degree marijuana possession, reported. The charge will be dismissed if he successfully completes a drug court program.
Entrekin’s election opponent, Rainbow City Police Chief Jonathon Horton, has pledged to use any excess inmate food funds for things that will benefit taxpayers. “There’s been a tremendous amount of money left over that shouldn’t be used as a bonus check,” he told
Entrekin told in an email that the jail uses a registered dietitian to ensure adequate meals are provided for jail inmates. “As you should be aware, Alabama law is clear as to my personal financial responsibilities in the feeding of inmates,” he wrote. “Regardless of one’s opinion of this statute, until the legislature acts otherwise, the sheriff must follow the current law.”
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Saturday, March 17, 2018

GateHouse: Death for drug dealers not so far-fetched

Matthew T. Mangino
GateHouse Media
March 16, 2018
President Donald Trump wants to impose the death penalty on drug dealers. Death for drug dealers is the focus of a brutal campaign by Philippines President Rodrigo Duterte whose “drug war” has, according to Human Rights Watch, resulted in more than 12,000 extrajudicial deaths.
I’m not sure that Trump wants armed militia cruising the streets, knocking-off reputed drug dealers, but is anyone ever really sure what President Trump has planned?
In a recent campaign speech in Pittsburgh, President Trump said, “These people are killing our kids and they’re killing our families, and we have to do something.” He went on to say, “I think it’s a discussion we have to start thinking about (the death penalty for drug dealers). I don’t know if we’re ready — I don’t know if this country’s ready for it.”
However, if Trump intends to pursue the death penalty for drug dealers through the criminal court system his idea may not be so far-fetched.
The death penalty has been exclusively for those convicted of first-degree murder since the death penalty was reinstated in 1976.
The Supreme Court cited evolving standards of decency to outlaw the death penalty for the rape of an adult in 1977. In 2008, the court found that there is a distinction between first-degree murder and nonhomicide crimes against individual persons, even child rape.
U.S. Supreme Court Justice Anthony Kennedy wrote in 2008, “As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.”
According to the Death Penalty Information Center, an anti-death penalty website, two states — Florida and Missouri — have the death penalty for drug dealers on their books. The federal government also has the death penalty for trafficking large quantities of drugs.
The Trump administration is studying a proposal that could allow prosecutors to seek the death penalty for drug dealers as a way to address the opioid crisis. Opioids killed nearly 64,000 people in 2016, and the crisis is straining local health and emergency services.
According to the Washington Post, people familiar with the discussions said that the president’s Domestic Policy Council and the Department of Justice are studying the possibility of making trafficking large quantities of fentanyl — a powerful synthetic opioid — a capital crime because even small amounts of the drug can be fatal. The Trump administration’s authority would be limited to federal law and the federal government has been squeamish about executions. There have been only three executions by the federal government in the last 55 years.
In 1972, the Supreme Court ruled that the death penalty laws in place were unconstitutional because there were no rational, objective standards for when the death penalty would be imposed.
Four years later, the Court found that Georgia’s amended death penalty statute was “judicious” and “careful.” The new statute provided for a bifurcated trial — one to determine guilt and one for sentencing. During the sentencing, or penalty phase, specific jury findings of “aggravating circumstances” were necessary to impose the death penalty. The Eighth Amendment violations disappeared, and the death penalty was once again constitutional.
How would the death penalty look for a nonhomicide offense?
Once a defendant is convicted of drug trafficking the jury would then move into the penalty phase of trial — juries must make death penalty decisions — or impose some other penalty provided by statute.
The whole idea of imposing the death penalty on drug dealers comes as interest in the death penalty wanes. There have been only 47 executions nationwide in the last three years. Support for the death penalty has fallen below 50 percent for the first time in the modern era of the death penalty.
Imposing the death penalty on drug dealers will be a stretch, but probably has a better chance of happening than the erection of a wall from the Pacific Ocean to the Gulf of Mexico.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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Friday, March 16, 2018

Georgia and Alabama carry out executions

The 5th and 6th Executions of 2018
Alabama executed a Michael Eggers a 50-year-old man convicted for the kidnapping and murder of a woman in 2000, and Georgia put to death Carlton Gary, 67, dubbed the “stocking strangler" on March 15, 2018, reported Reuters.
Gary was convicted of a series of murders in which he chocked victims with panty hose in Columbus, Georgia.
Gary was convicted in the murders of Florence Scheible, Martha Thurmond and Kathleen Woodruff in Columbus in 1977 and 1978. He was also linked to the murder of four other women in a two-year crime spree, police said.
But Gary’s lawyers say evidence uncovered since his conviction raised serious doubts about the prosecution’s case against him.
“Mr. Gary is not the Columbus Stocking Strangler,” his lawyers wrote in their March 9 appeal to the U.S. Supreme Court.
Hours before the planned execution, they asked for a halt to the proceedings to allow for DNA testing.
Gary was pronounced dead at 10:33 p.m. ET, Georgia prison officials said.
The killings in Columbus stopped in 1978 but Gary was not arrested until 1984 when he was linked to a gun stolen in the home of one of the victims. Prosecutors said they had a confession from Gary and fingerprint evidence that implicated him in the crimes.
DNA testing of body fluids from crime scenes was not available at the time and subsequent testing clears Gary, his lawyers said.
In neighboring Alabama, Michael Eggers was put to death by lethal injection without complications at 7:29 p.m. CDT, state prison spokesman Bob Horton said.
“Mr. Eggers was convicted of brutally beating and then murdering Mrs. Francis Murray, who was simply trying to help him,” Alabama Governor Kay Ivey said in a statement after the execution.
It was the first execution in Alabama since a botched lethal injection a few weeks ago.
The two men, neither of whom gave a final statement, were the fifth and sixth to be executed in the United States this year. Their executions brought to 1,471 the number of inmates put to death since the U.S. Supreme Court reinstated the death penalty in 1976.
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Thursday, March 15, 2018

What happened to mercy in Pennsylvania? Reginald McFadden

For years, the commutation of life sentences was a commonly used tool to reduce a life sentence in Pennsylvania, reported In Justice Today. Milton Shapp, who was the Democratic governor from 1971–79, commuted 251 sentences. As the war on crime ratcheted up, however, the number of commutations plummeted. Republican Dick Thornburgh, in office from 1979–87 and later picked as President Reagan’s attorney general, commuted just seven. His Democratic successor, Bob Casey, commuted 27. And commutations all but disappeared after 1994, when Governor Casey commuted the life sentence of Reginald McFadden, who went on to kill two and brutally rape another shortly thereafter.
“You met him, and you look into his eyes, you knew that he was deranged,” Tyrone Werts, one of just five lifers to have their sentence commuted under Governor Ed Rendell, said of McFadden when I was reporting my 2014 profile of Smith. “The system saw fit to let him go. But if they would have came around to different prisons [and] said, ‘What do you think about McFadden? You think that he’s a good candidate for commutation?’ ‘Hell no, [don’t] let that crazy motherfucker out.’”
Why, during a law and order era, was such a seemingly horrible candidate for a commutation one of the few to be released? The one person who voted “no,” then Pennsylvania Attorney General Ernie Preate, told me that McFadden was released in part because of his cooperation with correctional authorities during a 1989 uprising at the State Correctional Institute at Camp Hill. Back then, approving a recommendation of commutation to the governor required just a majority vote. That would soon change.
McFadden’s atrocities humiliated then Lt. Governor Mark Singel, who ran in 1994 to succeed Casey as governor and voted “yes” on his commutation application. Republican Tom Ridge beat Singel, running on a tough-on-crime campaign pitched to the maximally punitive political environment of the mid-1990s. George W. Bush later appointed Ridge to be his Department of Homeland Security secretary, calling him “a man of compassion who has seen what evil can do.”
After taking the governor’s office, Ridge launched a special session on crime, and legislators sent voters a successful referendum on commutations: from there on out, the Board of Pardons seat once claimed by a lawyer would go to a victim’s representative instead; more importantly, a commutation recommendation to the governor for those sentenced to life in prison would require a unanimous, and not majority, vote.
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Wednesday, March 14, 2018

Prosecutors to seek death penalty for Parkland school shooter

There is only one real question in the case of the State of Florida vs. Nikolas Cruz: Will he be executed or will he serve multiple life terms in prison, with no hope of ever being freed?
According to the Sun-Sentinel, the Broward State Attorney’s Office announced that — at least for now — prosecutors plan to seek the death penalty for the accused Parkland school shooter.
Some of the victims’ relatives immediately said they do not want prosecutors to go through a lengthy trial to get a death sentence. They would prefer if Cruz spends the rest of his life in prison.
Family members of at least one victim said that they felt the announcement was premature and they wished prosecutors had consulted with them before making a decision.
“I’m annoyed, I would have loved an opportunity to be heard,” said Fred Guttenberg, whose 14-year-old daughter Jaime, was murdered.
“I wish they would have asked the families what they wanted before they made that announcement,” he said. “We were under the impression that, after the arraignment on Wednesday, we would have an opportunity to speak with the prosecutors before a decision was made.”
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Tuesday, March 13, 2018

Deputy AG Rosenstein has unqualified support for Mueller

Despite unrelenting criticism from the White House on the course of the investigation into Russia's election interference, Deputy Attorney General Rod Rosenstein offered unqualified support for special counsel Robert Mueller.
"The special counsel is not an unguided missile," Rosenstein said in an exclusive interview with USA TODAY. "I don't believe there is any justification at this point for terminating the special counsel."
Rosenstein's remarks are among the first to address Mueller's status since it was disclosed more than a month ago that President Trump sought to have the special counsel dismissed last summer. The president relented only when White House counsel Donald McGahn threatened to resign if forced to carry out the directive.
The deputy attorney general, who is tasked with overseeing the special counsel, appointed Mueller last May to run the wide-ranging investigation after Attorney General Jeff Sessions recused himself because of his prior contacts with Russia Ambassador Sergey Kislyak.
Appearing upbeat and at ease in his fourth-floor office, Rosenstein said oversight of the inquiry requires only "a fraction" of his daily work. He estimated that less than 5% of his week is related to briefings or other matters involving Mueller's investigation.
He dismissed the near-constant and pointed criticism aimed at the Justice Department from the White House and from an ultra-conservative Tea Party Patriots group. The group has run an ugly ad campaign, describing Rosenstein as "a weak careerist" and suggesting that he tender his own resignation.
"I believe much of the criticism will fall by the wayside when people reflect on this era and the Department of Justice," said Rosenstein, who did not refer to Trump directly. "I'm very confident that when the history of this era is written, it will reflect that the department was operated with integrity."
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