Trump and GOP look to crime and punishment as campaign theme

Unexpectedly, the 2020 presidential campaign is drilling down on petty crime and homelessness. Donald Trump and his Republican allies are reviving law-and-order themes similar to those used effectively by Richard Nixon and Spiro Agnew in the late 1960s and early 1970s to demonize racial minorities, reports Thomas B. Edsall of The New York Times.

To this end, Republicans seek to discredit liberalized law enforcement initiatives adopted by a new breed of Democratic prosecutors.

These Democratic district attorneys — in cities, counties and suburbs from Philadelphia, Orlando, Chicago and St. Louis to Contra Costa County, Calif., Suffolk County, Mass., and Durham County, N.C. — are pursuing policies intended to decriminalize vagrancy, and eliminate cash bail, and they are aggressively pursuing charges in cases of shootings by police officers.

They are playing a key role in a hotly politicized movement to curb mass incarceration and to roll back what has become known as “the carceral state.”

The decarceration movement is backed by a wide array of organizations tightly aligned with the progressive wing of the Democratic Party: the Real Justice PAC, Black Lives Matter, the Brennan Center for Justice, the ACLU, Justice Democrats, MoveOn.org and Brand New Congress.

Michael Waldman, president of the Brennan Center, and Adureh Onyekwere, a senior research and program associate there, along with Inimai Chettiar and Priya Raghavan, described the goals of the movement in a May 2019 essay, “Ending Mass Incarceration: Ideas from Today’s Leaders”:

Mass incarceration is the civil rights crisis of our time. The racial disparities pervasive in our justice system compound at every juncture: African Americans are more likely to be stopped by police, arrested, detained before trial, and given harsher sentences than whites.

How do we achieve change, the authors ask? The solutions they envisage range broadly

From eliminating prison for lower-level crimes to incentivizing states to decarcerate, from ending bail to abolishing private prisons, from reforming housing and employment laws to changing the public perception of the justice system and cultivating respect for all lives.

At the same time, as this movement has been gaining momentum, it has provided ammunition for a powerful counterattack from President Trump, his attorney general, William Barr, and other law-and-order Republicans.

The result is that the 2020 election is expanding the 50-year-old culture war into new territory as Democrats — often under pressure from younger voters — seek to extend broader rights to those who have been previously stigmatized or marginalized, now moving beyond protection for minorities, women and gays, to provide more freedom to criminal defendants, the homeless, the mentally ill and unknown numbers of men and women imprisoned through prosecutorial misconduct, judicial error or other forms of systemic failure.

Republicans, in turn, are betting that the Democratic presidential candidates have moved substantially farther to the left on issues of crime and punishment than the voting public.

Leading Democratic presidential candidates, for their part, are not shying away from the challenge, endorsing in whole or in part the decarceration and decriminalization agenda.

Even Joe Biden, one of the more moderate 2020 candidates, argued at the September Democratic presidential debate that “We should be talking about rehabilitation. Nobody should be in jail for a nonviolent crime” and that “Nobody should be in jail for a drug problem. We build more rehabilitation centers, not prisons.”

Once a strong supporter of the death penalty, Biden now calls for its elimination, noting on his website:

Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level.

While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats. At this level, the movement is one more source of conflict between the Alexandria Ocasio-Cortez wing and the many members of the House and Senate who must fight for re-election in more moderate districts and states, including those that cast majorities for Trump in 2016.

Laurence Tribe, a professor of constitutional law at Harvard, described the thinking underpinning progressive Democratic policies broadening the rights of the homeless. In an email, Tribe wrote:

The supposed “rights” of those who are upset or psychologically threatened by the homeless, the deinstitutionalized, or others similarly situated are what I would call second-order rights, rights that a polity cannot fairly treat as having as strong a claim to protection, as trumps that override utilitarian claims as is true of genuine rights.

Put another way, Tribe continued,

my “right” not to be upset by your appearance or life choices cannot occupy the same plane as your right to live your life as you opt to, or are compelled to, live it if we are to have a viable social and legal system. One needn’t be a libertarian to recognize that there is a difference in kind between someone’s genuine right to be free of another’s physical intrusion or displacement and someone’s ersatz right to be free of another’s merely offending or upsetting behavior or circumstances.

In this view, according to Tribe, “rights of the first, or primary, sort can be universally recognized; rights of the second sort must be subordinated if social life is to be tolerable.”

Trump, for his part, clearly rejects Tribe’s distinction between first versus second order, or genuine versus ersatz, rights. For Trump, the people who come into contact with the homeless have first order rights. In a July 1, 2019, interview with Fox’s Tucker Carlson, Trump declared:

You can’t have what’s happening — where police officers are getting sick just by walking the beat. I mean, they’re getting actually very sick, where people are getting sick, where the people living there living in hell, too.

Trump went on:

We cannot ruin our cities. And you have people that work in those cities. They work in office buildings and to get into the building, they have to walk through a scene that nobody would have believed possible three years ago. And this is the liberal establishment. This is what I’m fighting.

Republicans are responding to the initiatives of progressive prosecutors with a vengeance.

In a fiery speech on Aug. 12 at the Grand Lodge Fraternal Order of Police’s conference in New Orleans, Barr warned that progressive prosecutors in cities across the nation are “demoralizing to law enforcement and dangerous to public safety.”

This threat, Barr continued, comes from

the emergence in some of our large cities of District Attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.

These prosecutors, Barr declared,

have been announcing their refusal to enforce broad swathes of the criminal law. Most disturbing is that some are refusing to prosecute cases of resisting police. Some are refusing to prosecute various theft cases or drug cases, even where the suspect is involved in distribution. And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient. So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims.

Three days later, William M. McSwain, the Trump-appointed United States Attorney for the Eastern District of Pennsylvania, called a news conference to explicitly attack the Philadelphia district attorney, Larry Krasner. Krasner was elected in 2017 on a platform promising to

End mass incarceration; Stop prosecuting insufficient and insignificant cases; Review past convictions, free the wrongfully convicted; Stop cash bail imprisonment; Treat addiction as a medical problem, not a crime.

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Judge admonished for encouraging jury nullification

It's not news that most judges balk at the prospect of jury nullification—the right and power of juries to bring "not guilty" verdicts when defendants violate laws that jurors consider unjust or wrongly applied, reported Reason. It is news when judges take a high-profile slap at a colleague who endorsed jury nullification in his own courtroom. And it's an even bigger deal when they barely assemble a majority to join in the public shaming.

That's exactly what happened last month when a divided three-judge panel of the U.S. Second Circuit Court of Appeals rebuked U.S. District Judge Stefan Underhill, who presided over what he called "a shocking case" in his court "that calls for jury nullification."

The prosecution that shocked Underhill was a dubious federal "child pornography" case growing out of a state statutory rape case. It was summarized by the feds themselves in a U.S. Attorney's Office press release, which alleges that defendant Yehudi Manzano "sexually assaulted a 15-year-old female victim in Connecticut, video recorded the assault with his cell phone, and uploaded the video to his Google account."

"The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me about the video.

How did the feds get jurisdiction in what would normally be a state criminal case?

The feds chose to pile on a questionable prosecution for acts already being addressed in the state courts. "Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the [child pornography] statute," as Judge Underhill marveled.

You would think a federal judge would have learned by now that the mere invocation of "interstate commerce" is the legal equivalent of muttering "Beetlejuice" three times, causing federal lawyers in ill-fitting suits to materialize amidst clouds of sulfurous smoke.

And materialize they did, with high stakes for the defendant.

"The charge of production of child pornography carries a mandatory minimum term of imprisonment of 15 years and a maximum term of imprisonment of 30 years, and the charge of transportation of child pornography carries a mandatory minimum term of imprisonment of five years and a maximum term of imprisonment of 20 years," the U.S. Attorney's press release notes.

Such a sentence would be in addition to the one to 20 years in prison faced by Manzano for sexual assault in the second degree, a class B felony in Connecticut, for sex with a 15-year-old who was legally incapable of consenting to the relationship.

Manzano's attorneys argued that the feds were overreaching and that their client should be allowed to inform the jury of the potential sentence and argue for jury nullification. Judge Underhill agreed.

"This is a shocking case," Underhill wrote. "This is a case that calls for jury nullification. …  I am absolutely stunned that this case, with a 15‐year mandatory minimum, has been brought by the government. …  I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack or seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."

Prosecutors promptly filed an emergency motion seeking a writ of mandamus—an order from a higher court that would bar Judge Underhill from permitting the defense to inform the jury of the potential sentence and to argue in favor of jury nullification.

Given the judicial system's strong aversion to loosening the puppet strings judges and prosecutors routinely fasten on jurors, it's no surprise that two of the three appeals court judges hearing the case sided with the prosecution.

"Our case law is clear: 'it is not the proper role of courts to encourage nullification,'" Judge Richard J. Sullivan wrote in a ruling joined by Judge Denny Chin "As a practical matter, there is no meaningful difference between a court's knowing failure to remove a juror intent on nullification, a court's instruction to the jury that encourages nullification, and a court's ruling that affirmatively permits counsel to argue nullification."

The appeals court did not agree to bar Underhill from allowing sentencing information to be presented to the jury, since there are potentially grounds other than nullification that could justify its introduction.

More surprising is that the decision was close, with Judge Barrington D. Parker opposing writs of mandamus regarding both sentencing and jury nullification.

"An especially unsettling aspect of this case is that the record the prosecution presented to the District Court and to this Court is barren of anything that would explain, much less justify, the prosecutors' decision to file the most serious child pornography charges available to them against a man who made a single video which no one else ever saw and which he then attempted to erase," Judge Parker argued in his dissent.

"Faced with the Government's charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted," Parker continued. "But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. … I respectfully dissent from the majority's grant of a writ directing the District Court to allow no arguments for jury nullification."

Those are strong words. But, since they're on the losing side, Manzano won't be allowed to argue in his defense in favor of jury nullification. His trial will feature jurors informed that they must abide by the federal government's legal-contortionist interpretation of the law—though they may be told about the draconian potential sentences in the case.

But Judge Parker's dissent, following Judge Underhill's willingness to entertain jury nullification arguments in his court, have provided dramatic fodder for headlines. A public pissing match between federal prosecutors and judges features in news stories exposing the public to judges' doubts about the wisdom and humanity of the criminal justice system.

An appeals court decision allowing Manzano to argue in favor of jury nullification would have been a better outcome in this case—short of the feds entirely leaving the matter to the state. But despite the loss, we're getting an eyeful of how the system works, and how responsible jurors can bring otherwise-lacking judgment and mercy to courtrooms.

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One-third of California inmates are serving life sentences

Nearly 40,000 inmates, a third of California’s total prison population, are serving life sentences, a figure greater than the combined total of the next three states with the highest proportions: Florida, New York and Texas, reported The New York Times Magazine. Unless the sentence explicitly bans the possibility of parole, a “lifer” in any state can theoretically be paroled after serving some minimum number of years. But most of the nation’s 162,000 inmates serving life sentences have little hope of ever achieving freedom; that possibility of parole exists almost entirely on paper.

For years, this was true in California as well. But over the past decade, the state has begun to inch the gates open. According to the state’s Board of Parole Hearings, more than 5,000 California lifers were eligible to go before a two- or three-person parole panel in 2019 to make the case that they are suitable candidates for release. In the first 11 months of the year, 1,074 of them, or 19 percent, were granted parole. While that number is still dwarfed by the tens of thousands left inside, it’s a striking shift from previous decades, when fewer than 1 percent of those who went before the board ever returned to society.

Life sentences usually stem from convictions for violent crimes such as murder, rape and kidnapping, although by the end of 2016 almost 11,000 of the nation’s lifers had been given those sentences for nonviolent crimes. Violent criminals are generally the people the public feels least ambivalent about locking up; life sentences have historically been seen as a humane alternative to the death penalty. As a result, the number of people serving such sentences — including “virtual life sentences” that exceed an offender’s expected life span — is growing steadily, even as the rate of violent crime sinks to its lowest levels in decades. A 2017 report by the Sentencing Project, a criminal-justice research-and-advocacy group, found that the number of people serving life sentences nationwide grew by 21,000 from 2008 to 2016, driven both by a growth in the imposition of life sentences and by the reluctance of most states to grant parole to those who are eligible. Even as politicians from both parties have begun embracing alternatives to mass incarceration, criminal-justice reform has yet to touch those deemed the worst of the worst. “It’s hard to get that people who committed a serious crime are not always potentially on the verge of committing another one,” says Ashley Nellis, a senior research analyst for the Sentencing Project.

Yet lifers are highly unlikely to reoffend once released. A 2011 study by the Stanford Criminal Justice Center followed 860 California murderers paroled after 1995 and found that only five — less than 1 percent — went on to commit another felony. None committed another murder. This can be explained partly by age: People become less likely to commit crimes as they get older. But many of those who work with lifers will attest to another factor, something that the American punitive, retributive criminal-justice system scarcely seems to believe is possible: lasting change. Deep in the heart of the largest correctional systems in the country, men and women who have been locked up for decades have improvised a path to rehabilitation using whatever methods they can muster: self-help groups, 12-step programs, books, journal-writing, Bible study, peer mentoring — all of them leading up to the hearing where they must try to win their freedom.

California’s parole hearings are something like an ordeal of the soul, an investigation of every stage of an inmate’s life from birth onward. Held on prison grounds, they can take one hour or last as long as nine hours. While a lifer will have a lawyer present — one who is appointed by the state, usually — it is the inmate who will do almost all of the talking, responding to detailed questioning by the commissioner and deputy commissioner who conduct the hearing. “I’m not sure that there are really any other places in life where somebody is scrutinized so much in such a public way by people they don’t know,” says Jennifer Shaffer, the executive officer for the California Board of Parole Hearings.

Inmates are expected to show that they understand how they became the person who could commit a terrible crime. As Shaffer puts it: “If you don’t understand the factors that led you to do what you did before, how would anybody know that you’re not going to do it again?” The result is a moral interrogation before interlocutors who can alternate between sympathy and condemnation as they ask inmates to dig deep into the most traumatic episodes of their lives. “That boardroom,” says Lawrence Strauss, the state-appointed lawyer who represented Morgan at his hearing, “is a house of pain.”

The modern idea of basing a prisoner’s release on evidence of his or her rehabilitated character can be traced to 1870, when the inaugural meeting of the newly formed American Prison Association took place in Cincinnati. There, representatives from 25 states, Washington, D.C., and Canada adopted a declaration of principles, among them that prisoners should be rewarded for good conduct and that a “prisoner’s destiny should be placed, measurably, in his own hands.” To achieve this, they argued, “sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time.”

By 1922, nearly every state in the union had adopted indeterminate sentencing, in which judges hand out sentences that are formulated as a range of years — a minimum and a maximum amount of time to be served. The responsibility for deciding exactly when in this range an inmate had been rehabilitated enough to be released was vested in state parole boards. (The federal penal system has its own early-release process.)

Over the next half century, it became clear that there was an intrinsic tension between the high-minded notion that inmates should be in control of their own destinies, by deciding whether or not to reform, and the practical difficulty of determining whether they had actually done so. By the 1970s, the discretionary parole system was under attack. Liberals argued that a parole board’s broad leeway allowed racial and class biases to rule unchecked. Conservatives argued that parole boards were releasing dangerous felons who then went on to commit more crimes. A rising national crime rate made the public increasingly dubious of the paternalistic promises of a rehabilitative system.

Over time, some states got rid of parole entirely, while others drastically increased the minimum amount of time an inmate would need to serve before becoming eligible to go before a board. In Georgia, for example, inmates who received a life sentence for a serious crime committed before January 1995 became eligible for parole after seven years. Those who have received a life sentence for a crime committed after June 2006 don’t become eligible for parole until they’ve served 30 years.

But discretionary parole continues to exist in most states, even if it’s often limited to a small pool of longtime inmates whose lengthy periods of incarceration have consigned them to near-oblivion. Conducted by panels of political appointees with varying levels of professional expertise, little accountability and almost unlimited discretion, parole hearings rarely garner attention except when a high-profile inmate comes up for parole.

The United States Supreme Court ruled in 1987 that inmates who have been sent to prison for life have no due-process right to be released unless the wording of their state’s parole statute created one. In the absence of such rights, parole decisions can be remarkably arbitrary. A 2017 survey of paroling authorities by the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School found that 41 percent of parole boards never make public the logic behind a parole denial, and at least seven states don’t require their parole boards to provide a written explanation for their denial to the parole-seeking inmate. Prisoners are often unable to see the file that the parole board bases its decisions on — in Alabama and North Carolina, inmates are not even allowed to be present for the hearing. While every state except Kentucky and New Mexico allows inmates to have a lawyer at their hearing, very few states will pay for one, which means only a tiny minority of inmates have a lawyer with them at their hearings. “You have about 3 percent of the procedural rights before a parole board as you would in a courtroom,” says Kevin Reitz, the Robina Institute’s former co-director.

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Weinstein's trial set to begin today in Manhattan

Hollywood producer Harvey Weinstein’s criminal trial begins today in Manhattan, the outcome already is anticipated as a verdict on much more than one man’s alleged wrongdoing, reports the New York Times.

Many supporters of the #MeToo movement that Mr. Weinstein’s accusers helped ignite are looking to see whether the legal system can deliver justice for victims. Lawyers for Mr. Weinstein, who lost his company, his reputation and his marriage, are arguing that the case is proof that #MeToo has gone too far. At the courthouse, media from around the world, demonstrators outside and spectators in packed galleries will be watching.

But for all the expectations about the high-profile trial, the jurors will be hearing a narrow legal case, with an already-fraught back story and a highly unpredictable result.

While prosecutors intend to call several female witnesses to show a pattern of misconduct, the charges rest largely on two women. Mr. Weinstein is accused of forcing oral sex on a film production assistant and raping another woman, who is still anonymous, her story not publicly known. Most of the other allegations against Mr. Weinstein dated too far back to be prosecuted, fell outside New York’s jurisdiction or involved abusive behavior that was not criminal. Other accusers were unwilling to participate, convinced the personal toll would be too great.

The prosecutors’ path to the courthouse has been difficult. They were forced to drop one accuser who had been central to the case. The lead detective was ousted over allegations of police misconduct. And Mr. Weinstein, who claims his sexual encounters were consensual, produced emails that he says show a long, intimate relationship that continued after the alleged rape.

The defense team has its own tale of troubles. Mr. Weinstein, who could face life in prison if convicted on the most serious charge, has hired, alienated and discarded a series of high-powered lawyers. He has been accused of tampering with his electronic ankle bracelet, and tested the patience of the clearly annoyed judge who will preside over the proceedings. Just weeks ago, Mr. Weinstein deviated from his lawyers’ script with a tabloid interview in which he boasted of being a pioneering advocate for women in film and complained that his work had been forgotten.

The trial, expected to stretch more than two months, will begin with the judge’s instructions at the State Supreme Court in Manhattan, followed by two weeks of jury selection. Until opening arguments begin, it will be hard to gauge either side’s strength.

“I can’t think of another case where the defendant comes into trial at a larger disadvantage in terms of perception,” said Mark A. Bederow, a New York criminal defense lawyer and former Manhattan prosecutor. But, he cautioned, “evidence in the courtroom very often is not the evidence that appears in the public realm.”

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More states restore felons' voting rights

Democratic Kentucky Gov. Andy Beshear signed an executive order last month restoring voting rights to nonviolent felons after release, reported Stateline.com.

This was one of Beshear’s first acts as governor. Two days earlier, he announced at his inauguration that he would restore the right to vote for 140,000 “men and women who have done wrong in the past but are doing right now.” His Christian faith, he said, teaches him forgiveness.

“They deserve to participate in our great democracy,” he told the inaugural crowd in front of the state Capitol in Frankfort.

Kentucky joined 17 other states that have restored voting rights over the past several decades to felons after they leave prison. In every state except Maine and Vermont, felons are stripped of their voting rights while in prison. In most states, that ban remains for a certain period (Iowa has a lifetime ban, unless reversed by the governor) after they are released, disenfranchising millions of people.

In the past year, however, six states implemented measures restoring voting rights to people with felony convictions.

This shift is part of a broader reaction against the tough-on-crime policies of the 1980s and 1990s. Across the political spectrum, more people are questioning the incarceration of nonviolent offenders and backing anti-recidivism efforts.

“The vast majority of people disenfranchised live in our communities, own homes and pay taxes,” said Sarah Shannon, an associate professor of sociology at the University of Georgia who has studied the impact of reinstating voting rights to felons. “They’re not behind bars. So, what is it that’s stopping us from allowing those folks from fully participating in our democracy?”

Still, strong opposition remains from lawmakers and election integrity advocates who say felons made a choice and must live with the consequences. Other opponents say these measures are ploys by Democrats to gain more voters, a charge Democrats deny.

For some former convicts, activists and lawmakers, last year’s success was the culmination of years of effort. In New Jersey, for example, Democratic state Rep. Shavonda Sumter has lobbied her colleagues since she took office in 2012, slowly building an appetite for action.

In December, New Jersey enfranchised people with felony convictions. The measure, which applies to people who leave prison but are still on parole or probation, restored the voting rights of 80,000 people.

Sumter, who sponsored the measure, told Stateline she is proud to have changed a policy that was “inherently, systematically wrong.” African Americans are far more likely to be incarcerated and disenfranchised in New Jersey than residents of other races, according to data compiled by the Sentencing Project, a Washington, D.C.-based criminal justice nonprofit.

“When we start carving people out just because of a crime they committed that had nothing to do with voting, we start stripping them of humanity,” Sumter said.

She hopes that on Election Day in November, she can walk around her hometown of Paterson, handing out “I Voted” stickers, and not have disenfranchised constituents tell her they can’t accept one.

But Republican state Rep. Hal Wirths, who previously served on a New Jersey parole board, voted against the measure. He says those on parole or probation haven’t yet served their sentences and shouldn’t be allowed to vote until they do. Around 20 states allow felons to re-register to vote after their parole or probation period and after they’ve paid any fines.

“I believe in everyone getting second chances,” Wirths said. “We all make mistakes. The main thing here is that they haven’t finished their sentences yet.”

In California and Iowa, measures to restore voting rights to felons made it through one legislative chamber but stalled in the other amid disagreement over whether to include felons with murder or rape convictions. Legislation in New Mexico stalled after making it out of committee, while measures in six other states didn’t progress.

Elsewhere, proponents for enfranchising felons have turned to the courts. In Minnesota, four residents with criminal records are suing Democratic Secretary of State Steve Simon, in his capacity as the state’s top election official, to reinstate their and other formerly incarcerated residents’ voting rights.

Elizer Darris, 35, has never had the right to vote. As a juvenile he was sentenced to life in prison for murder, but his sentence was later reduced and he was freed in 2016. Now, he works as an organizer with the local chapter of the American Civil Liberties Union and he said he wants to help choose the elected officials who make decisions that affect him.

“It’s like being invisible,” Darris said. “It doesn’t make our communities safer to relegate people to the corners.”

While he would not comment on the pending lawsuit, Peter Bartz-Gallagher, communications director for Minnesota’s secretary of state, said even as Simon is the defendant in this case, he remains in favor of restoring the right to vote to people as soon as they get out of prison. Around 50,000 felons who have finished their sentences remain disenfranchised in Minnesota, he said.

“It is an investment in helping people connect with their community,” Bartz-Gallagher said. “It leads to a stronger democracy and makes communities safer. This isn’t a niche issue. It affects a lot of people who are trying to rebuild their lives.”

Some opponents such as the Minnesota Voters Alliance, a St. Paul-based election integrity group, do not think the secretary of state’s defense of the state law disenfranchising felons is strong enough. The group has filed a motion to intervene in the lawsuit and join the defense.

Andy Cilek, executive director of the alliance, which calls itself nonpartisan, said the previous support for felon enfranchisement from Simon and Democratic Attorney General Keith Ellison, who will lead the state’s defense, make them biased in the case.

Further, Cilek thinks this issue should be resolved through the legislature by amending the state constitution. And he says measures that enfranchise felons really are about helping Democrats boost voter registration.

“That’s what it’s all about,” Cilek said. “There’s no doubt about it.”

The lawsuit is currently in discovery, which will take several more months, said David McKinney, a staff attorney with the ACLU of Minnesota, which is representing the four plaintiffs in court. After trying for years to get bills through the legislature, McKinney said

The future of a Florida measure that would restore the voting rights of 1.4 million felons is also in the hands of the courts.

After nearly two-thirds of Florida voters passed a constitutional amendment in 2018 that would enfranchise people with felony convictions, Republican lawmakers and GOP Gov. Ron DeSantis have sought to limit the measure. A new law requires that all court fees and fines and other criminal restitutions be paid before people can vote.

This was met by a series of lawsuits from civil rights groups, who argued the measure constituted a poll tax. Daniel Smith, a University of Florida political science professor, testified in October this new law prevents 80% of otherwise eligible felons from voting.

“We thought we were on a good track to get these rights restored, but we’ve had all of these obstacles thrown in the way,” said Patricia Brigham, president of the League of Women Voters of Florida, one of the organizations suing the state. “We’re waiting on further court decisions. There is a lot up in the air.”

The organization has held several training sessions for lawyers who want to work pro bono to help felons determine whether they can register to vote or have outstanding fines and fees.

In October, a federal judge ruled the state couldn’t deny voting rights to people who are “genuinely unable” to pay legal fees. Republicans have argued that these fees are part of a criminal sentence and must be paid before voting rights are restored.

Florida lawmakers are expected to draft new legislation when they return to work this month. In the meantime, DeSantis has asked the Florida Supreme Court to weigh in.

Other states are trying to ease some of that confusion. In Iowa, felons leaving prison will now be handed filled-out forms by the Department of Corrections to make it easier for them to apply to get their voting rights restored by the governor. Previously, discharged inmates had to fill out a complicated form on their own.

Iowa lawmakers failed in 2019 to pass a constitutional amendment that would have restored voting rights for felons. Republican Gov. Kim Reynolds has said she will wait on the legislature instead of signing an executive order.

States will continue to explore ways of giving voting rights back to felons, said the University of Georgia’s Shannon. While some states will make sweeping changes applying to all felons, others might limit enfranchisement to people who committed certain crimes. It’s unlikely, she said, that many states would go a step further and start giving those in prison voting rights.

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GateHouse: Chief Justice Roberts can avoid the spotlight no more

Matthew T. Mangino

GateHouse Media

January 3, 2020

If the Speaker of the House, Nancy Pelosi, ever decides to deliver the Articles of Impeachment to the U.S. Senate for trial, America is going to get a rare opportunity to see a Chief Justice of the U.S. Supreme Court at work.

U.S. Supreme Court proceedings are not televised. In 1999, America watched as Chief Justice William Rehnquist presided over the impeachment trial of President Bill Clinton. Television was still about 70 years off into the future when Chief Justice Salmon P. Chase presided over the impeachment trial of President Andrew Johnson.

Maybe, in the not-too-distant future Chief Justice John Roberts Jr. may be under the spotlight, figuratively and literally, presiding over the impeachment trial of President Donald Trump.

On Jan. 27, 2020 Chief Justice Roberts will be 65-years-old. He was nominated by President George W. Bush, and confirmed by the Senate 78-22, becoming only the 17th chief justice in U.S. history.

Roberts was born in Buffalo, New York and attended Harvard University and Harvard Law School. After law school he clerked for Justice Rehnquist - the man he would ultimately replace on the court.

Although Roberts is considered a conservative he has served as a key swing vote on divided rulings. For instance, he voted with the liberal side of the court in upholding key provisions of Obamacare, but sided with the conservatives in opposing same-sex marriage.

Roberts faces his responsibilities in the impeachment with some trepidation. First, the chief justice and the president have had public disagreements about the role of the courts. According to the New York Times, in 2018, Trump called a judge who had ruled against his administration’s asylum policy “an Obama judge.” In response, the chief justice said the president had misunderstood the role of the federal courts in the constitutional system.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Trump replied on Twitter, “Sorry Chief Justice John Roberts, but you do indeed have Obama judges ... and they have a much different point of view than the people who are charged with the safety of our country.”

Last week, Roberts gave his annual end of the year report. While hailing the rule of law he ominously wrote, ”(W)e should also remember that justice is not inevitable.”

The limits of justice come into clear focus with the recent statements of two GOP senate leaders. Senate Majority Leader Mitch McConnell and Sen. Lindsey Graham have said they will not be impartial jurors during the impeachment trial. McConnell is coordinating with the White House about a trial strategy and Graham has also given input. “I’m not an impartial juror,” McConnell told reporters, according to CNN.

Roberts may have to deal with those statements in the context of Article I of the U.S. Constitution, which provides that every senator must take the following oath before trying an impeachment case:

“I solemnly swear or affirm that in all things appertaining to the trial of the impeachment of the president now pending, I will do impartial justice according to the Constitution and laws; so help me God.”

Justice Roberts may have to decide if there is a difference between being “an impartial juror,” and doing “impartial justice according to the Constitution.”

Roberts may also be called upon to decide whether the Senate can conduct a trial without the Articles of Impeachment from the House? And, once trial begins, can the Democrats subpoena witnesses to appear before the Senate?

The American people may get a chance to see, and hear, a lot from the chief justice in the coming weeks.

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 www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Illinois Governor grants 11,017 pardons for marijuana convictions

Illinois Governor JB Pritzker granted 11,017 pardons for individuals convicted of misdemeanor cannabis offenses involving less than 30 grams, reported Jurist.

The expungements involved Illinoisans in 92 counties. The landmark bipartisan Cannabis Regulation and Tax Act, signed by the governor in June, provided paths to relief for more the 700,000 cannabis-related arrest and conviction records. While Illinois is the eleventh state in the country to legalize cannabis, it is the first to legalize recreational cannabis for adults through its legislature, rather than voter initiatives.

In a statement announcing the expungements, Pritzker said:

Tomorrow when adult-use cannabis becomes legal, pay attention to the fact that we are beginning to accomplish four very important things: We are ending the 50-year long war on cannabis. We are restoring rights to many tens of thousands of Illinoisans. We are bringing regulation and safety to a previously unsafe and illegal market. And we are creating a new industry that puts equity at its very core.

The pardon process looks different for various offenses. The Prisoner Review Board reviews cannabis convictions for up to 30 grams not associated with violent offenses for accuracy and then forwards them to the governor for pardon consideration. There are 116,000 records eligible for expungement through this process.

Individuals, civil legal aid organizations, and the state’s attorneys can file motions to vacate for cannabis offenses up to 500 grams. There are approximately 34,000 records eligible through this process.

Arrest records that did not result in a conviction of up to 30 grams will automatically by expunged, so long as the arrest is not associated with a violent offense. There are approximately 572,000 arrest records eligible for expungement through this process.

Illinois Lieutenant Governor Juliana Stratton said, “Illinois is going where no other state has before, admitting that unjust errors of the war on drugs and giving so many Illinoisans greater opportunities to build good lives for themselves and the people they love.”

Many more pardons and expungements will come in the next several months.

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